



WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
    PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives from all
    or a part of a hearing; or

(c) prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

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.

45(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
    childs parent or foster parent or a member of the childs family.

45(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.




COURT OF APPEAL FOR ONTARIO

CITATION: Children's Aid Society of Oxford County v. W.T.C.,
    2014 ONCA 540

DATE: 20140710

DOCKET: C55909

Hoy A.C.J.O., Feldman and Simmons JJ.A.

BETWEEN

Childrens Aid Society of Oxford County

Applicant
    (Respondent)

and

W.T.C.

Respondent (Appellant)

John
    Schuman and Rachel Healey, for the appellant

Lorne
    Glass, for the respondent

Robert
    E. Charney and Bruce Ellis, for the Ministry of the Attorney General

Heard: December
    20, 2013

On appeal from the order
    of Justice Johanne N. Morissette of the Superior Court of Justice, dated July
    20, 2012, dismissing an appeal from the order of Justice Peter R. W. Isaacs of
    the Ontario Court of Justice, dated September 2, 2010.

Feldman J.A.:

Background

[1]

In reasons for decision dated July 23, 2013 (2013 ONCA 491), and, after
    receiving fresh evidence, November 1, 2013 (2013 ONCA 637), this court
    confirmed the decisions of the Ontario Court of Justice on a status review
    application and of the Superior Court on appeal, that the child L.H. remain a
    Crown ward with no access so that she could be adopted by the prospective adoptive
    parents with whom she had been living for over four years.

[2]

In her Supplementary Appeal Book and Compendium filed in this court,  the
    mother submitted that delays in the appeal process, caused most significantly
    by delays in preparation of necessary transcripts, deprived her of her s. 7
Charter
right to security of the person, contrary to the principles of fundamental
    justice. In particular, she argued that the institutional delay effectively
    rendered the outcome of the appeal process a
fait accompli
by
    extending the time that the child remained in the care of the prospective
    adoptive family to four years, creating the exclusive opportunity for the child
    to bond with that family. The child was two years old when she was initially
    placed with the prospective adoptive family and was six years old at the time
    of the appeal hearing in this court.

[3]

In its July 2013 reasons, the court requested written submissions from
    the Attorney General of Ontario in response to the
Charter
issue and
    ordered a further report on the child. After receiving the fresh evidence, the
    court issued its decision dismissing the mothers appeal from the status review
    application in November 2013. Having received the submissions of the Attorney
    General in response to the
Charter
claim, the panel reconvened to hear
    oral submissions from all parties on whether there was a
Charter
breach, and if so, what remedy was available.

[4]

The details of the mothers
Charter
claim are set out at paras. 53-55 of the July 2013 decision
:

[53] The basis of the mothers s. 7 claim is the institutional
    delay that occurred in this case. The chronology began in March 2008 when the
    order for Crown wardship with no access was made for L.H. The mother applied
    for a status review under s. 65.1 of the CFSA on February 20, 2009, returnable
    on April 6, 2009. Although Rule 33 of the
Family Law Rules
, O. Reg.
    114/99 provides that a status review hearing must be completed within 120 days,
    for reasons unexplained in the record, the status review hearing in this case
    did not begin until November 16, 2009. In the meantime, in June 2009, L.H. was
    placed with the prospective adoptive family with whom she continues to reside
    today. The hearing was continued on January 5, 2010 with written submissions on
    February 26, 2010. The reasons of the status review judge were released on
    September 2, 2010.

[54] For the purposes of the appeal to the Superior Court, the
    mother ordered the transcript of the hearing on January 29, 2011, but it was
    not prepared for 13 months until March 7, 2012. The appeal record to the
    Superior Court was filed on April 23, 2012. The Superior Court appeal judge
    released her reasons on July 20, 2012. Because her reasons were given orally,
    the transcript of those reasons had to be ordered for the purpose of the appeal
    to this court. The transcript was not produced until December 17, 2012. The mother
    was also not able to perfect her appeal to this court without orders of the two
    lower courts, which could only be obtained with the Societys cooperation.

[55] In summary, the mother submits that her rights under s. 7
    of the
Charter
have been violated by delays she did not cause. Although
    she initiated the status review in February 2009, the decision of the court only
    came in September 2010. Her appeal was then delayed for 13 months because the
    transcript of the hearing, which was required, took that long to prepare. There
    was then an additional delay in bringing the further appeal to this court
    because the oral reasons of the appeal judge, which were very brief  just two
    pages (plus 17 pages of submissions)  were not prepared for several months.

[5]

The appellant submits that the delay in proceeding with the status
    review and the appeals caused her real prejudice because it was only after she
    requested the status review that the child was placed with the prospective
    adoptive family and had the opportunity to bond with them over the four years
    it took to go through the process.

[6]

In
New Brunswick (Minister of Health and Community Services) v. G.
    (J.)
, [1999] 3 S.C.R. 46, the Supreme Court of Canada held that state
    action under child welfare legislation that seeks to interfere with a parents
    relationship with her or his child engages s. 7 of the
Charter
. The
    nature of the impact on the parents security of the person is a serious and
    profound effect on a persons psychological integrity: at para. 60. Lamer
    C.J., speaking for the court
[1]
,
    made it clear how sensitive he was to the sanctity and profound importance of
    the parent-child relationship, stating at para. 61, that he had:

[61] [L]ittle
doubt that state removal of a child
    from parental custody pursuant to the states
parens patriae
jurisdiction constitutes a serious interference with the psychological
    integrity of the parent. The parental interest in raising and caring for a
    child is, as La Forest J. held in
B. (R.)
,
supra
, at para. 83, an individual interest of fundamental
    importance in our society. Besides the obvious distress arising from the loss
    of companionship of the child, direct state interference with the parent-child
    relationship, through a procedure in which the relationship is subject to state
    inspection and review, is a gross intrusion into a private and intimate sphere.
    Further, the parent is often stigmatized as unfit when relieved of custody.
    As an individuals status as a parent is often fundamental to personal
    identity, the stigma and distress resulting from a loss of parental status is a
    particularly serious consequence of the states conduct.

[7]

Turning to an analysis of the principles of fundamental justice, Lamer C.J.
    explained at paras. 70 and 72 that in the child protection context, the
    principles of fundamental justice are both substantive and procedural:

[70] Thus, the principles of fundamental justice
    in child protection proceedings are both substantive and procedural. The state
    may only relieve a parent of custody when it is necessary to protect the best
    interests of the child, provided that there is a fair procedure for making this
    determination.




[72] A fair procedure for determining whether a
    custody order should be extended requires a fair hearing before a neutral and
    impartial arbiter. The paramount consideration at the hearing should be the
    childs best interests

[8]

In that case, the Court determined that in order to have a fair hearing,
    the mother required appropriate legal representation to present the parents
    case in the most effective way possible. Lamer C.J. explained at para. 73:

[73] For the hearing to be fair, the parent must
    have an opportunity to present his or her case effectively. Effective parental
    participation at the hearing is essential for determining the best interests of
    the child in circumstances where the parent seeks to maintain custody of the
    child.  The best interests of the child are presumed to lie within the
    parental home. However, when the state makes an application for custody, it
    does so because there are grounds to believe that is not the case. A judge must
    then determine whether the parent should retain custody. In order to make this
    determination, the judge must be presented with evidence of the childs home
    life and the quality of parenting it has been receiving and is expected to receive.
    The parent is in a unique position to provide this information to the court. If
    denied the opportunity to participate effectively at the hearing, the judge may
    be unable to make an accurate determination of the childs best interests.
    There is a risk that the parent will lose custody of the child when in actual
    fact it might have been in the childs best interests to remain in his or her
    care.

[9]

In this case, the appellant does not assert that she did not have a fair
    hearing at any stage. Rather, she states that the delays in the process, most particularly
    the significant delay in preparing necessary transcripts and the delay in
    scheduling the status review hearing, made the procedure unfair to her and, in
    that way, did not accord with the principles of fundamental justice.

Analysis

[10]

I
    agree that in cases involving the welfare of children, timeliness is extremely important.
    Whether a child ultimately returns to the parents or parent, or is made a Crown
    ward, the child lives in temporary care, and all interested parties live in a
    state of uncertainty until the proceedings have been concluded. No adoption
    process can begin until any appeal from the order for Crown wardship is
    dismissed.

[11]

This
    court case-manages child protection appeals to ensure that time limits for
    perfection are adhered to or modified only as necessary, and the appeal hearing
    itself is expedited. Because this court is the second level of appeal for Crown
    wardship orders, transcript preparation is not usually an issue.

[12]

Delay
    in the preparation of transcripts for the first level of appeal from a Crown
    wardship proceeding has been identified by the courts and by the Ministry as a
    significant issue and some administrative steps have been taken to address it,
    including a new system for the ordering and preparation of transcripts. Hopefully
    this new system, as well as recent case law (including this courts July 23,
    2013, decision in the present appeal) will ensure that counsel, the Ministry
    and the court give these cases the priority they demand.

[13]

Whether
    inordinate procedural delay, including the preparation of transcripts, could
    amount to a breach of a parent/appellants s.7
Charter
right and if
    so, what remedies may be available, do not need to be decided in this case
    because of the view I take of the effect of the delay in the particular
    circumstances.

[14]

As
    I stated at the outset, the mothers position is that the passage of over four
    years from June 2009 (when the child was placed with the prospective adoptive
    parents) to July 2013 (when the final appeal was heard in this court) effectively
    doomed her case because the child had the opportunity to bond with the new family.
    This, she claimed, made it inevitable that the courts best interests assessment
    would favour a Crown wardship/no access order.

[15]

I
    agree that over that time the child was able to settle well into a new family
    environment, but I do not accept that she would have been returned to her
    mothers care but for the delay in the Crown wardship proceedings.

[16]

As
    recounted in our July 13, 2013 decision, at para. 10, the evidence before the
    status review judge indicated that L.H. was born five weeks premature, that she
    was exposed to cocaine in the womb, and that she developed feeding problems
    necessitating the insertion of a G tube into her stomach to ensure that she
    received sufficient nutrition. The evidence also indicated that L.H. was
    developmentally delayed and required the support of a speech therapist,
    occupational therapist and nutritionist.

[17]

By
    the time of the status review hearing, the mother had a job at a restaurant and
    an apartment, she had been drug-free for over a year and was continuing with
    drug rehabilitation programs. Her progress was such that the Society was
    prepared to return her oldest and youngest children to her care, subject to
    supervision orders. Despite that progress, however, in reasons released in
    September 2010, the status review judge found that the mother had not yet demonstrated
    a real understanding of the commitment and effort that would be required to
    successfully parent L.H and that [n]othing ha[d] been produced to demonstrate
    that access to [L.H.] by [the mother] will be either beneficial or meaningful
    for the child.

[18]

At
    the same time, L.H. showed significant improvement through the care she
    received from the prospective adoptive parents. It was clear to the status
    court judge that the new situation was in the childs best interests. That
    conclusion was confirmed on appeal to the Superior Court.

[19]

Fresh
    evidence on the appeal to this court showed on the one hand that the mother had
    continued to improve her situation considerably: she had taken medical courses
    to better prepare herself to provide for L.H.s care; she graduated from a
    medical lab assistant/technician course with some health-related components;
    she now had a part-time managerial position in a restaurant; she owned a home
    with her new partner which could accommodate L.H.; and the other two children were
    thriving with her.

[20]

On
    the other hand, the fresh evidence confirmed that the child was thriving as a
    member of her new family. She no longer needed the feeding tube, which was a
    significant achievement.

[21]

Finding
    no error in the decisions below, this court sought and received a further updated
    report on the childs status before upholding the decision of the Superior
    Court. That report confirmed not only that the child was thriving, but also that
    it would be potentially harmful if she had to undergo another move.

[22]

In
    other words, the passage of time benefitted both the mother and the child. The
    mother made significant improvements in her life that gave her the ability to
    seek the return of her child. The child thrived in the care of the prospective
    adoptive family. In other circumstances, it may have been in the best interests
    of the child to return to the care of the mother by the time the appeal was
    heard in this court, had the child not been placed in a home where she was
    thriving and where her situation had the potential for permanence. Many children
    wait in foster care.

[23]

Ultimately,
    the issue for the courts was the best interests of the child. The passage of
    time gave the mother the chance to improve her ability to be an effective
    parent for this child. However, before the mother reached that position, and a
    decision had to be made by the status court judge, it was in the childs best
    interests to remain in the care of the proposed adoptive family. That situation
    continued to be the case until the final order of this court made on November
    1, 2013.

[24]

I
    conclude that the delays in this case did not cause the substantive prejudice
    the mothers alleges. The issue of a s. 7
Charter
breach does not
    arise.

[25]

I
    would therefore dismiss the appeal on the
Charter
application.

[26]

The
    court left the issue of the costs of the appeal to be determined following its
    decision on the
Charter
application. The appellant was not successful
    on the appeal and therefore is not entitled to her costs of the appeal.

[27]

On
    the
Charter
application, the issue arose because of court administration
    delays. The issue is one of general importance and the court asked the Ministry
    of the Attorney General to respond in writing and asked the parties to
    re-attend to make oral submissions. In those circumstances, in my view, the
    appellant should receive her costs of the
Charter
application on the
    partial indemnity scale, payable by the Attorney General for fees in the amount
    of $5000.00 as claimed plus HST. No claim was made for disbursements.

RELEASED: AH July 10, 2014

K.
    Feldman J.A.

I
    agree. Alexandra Hoy A.C.J.O.

I
    agree. J. Simmons J.A.





[1]

LHeureux Dube J. wrote concurring reasons.


