



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:
Childrens Aid Society of
    Ottawa v. S.N.-D., 2012 ONCA 590

DATE: 20120907

DOCKET: M41546

Gillese J.A. (In Chambers)

BETWEEN

Childrens Aid Society of Ottawa

Responding party

and

S.N.-D.

Moving party

S. N.-D., moving
    party acting in person

Julie Daoust, for the responding party

Heard: in writing

On motion for an extension of time and stay of
    proceedings in respect of the judgment of the Divisional Court (Hackland,
    Robertson and Aitken JJ.), dated March 28, 2012, with reasons reported at 2012
    ONSC 1888.

Gillese J.A.:

[1]

The Appellant is the mother of two children who are the subject of child
    protection proceedings under the
Child and Family Services Act
, R.S.O.
    1990, c. C.11 (the 
CFSA
).  She brings a motion seeking an extension
    of time to file her leave to appeal application.  This motion was done by
    writing alone.

[2]

For the following reasons, I would dismiss the motion.

THE BACKGROUND IN BRIEF

[3]

A.N. was born on April 6, 2010.  By order of Beaudoin J. made on July
    14, 2011, A.N. was made a Crown Ward for purposes of adoption.  The order was
    made following a 5-day trial held from June 13-17, 2011.

[4]

A.N-D. was born on June 22, 2011.  By order dated August 15, 2011, A.N-D.
    was made a Crown Ward for purposes of adoption.

[5]

The Appellant appealed both orders.

[6]

The appeals were joined and heard by the Divisional Court.  By decision
    dated March 28
th
, 2012 (the Decision), the Divisional Court
    dismissed the two appeals, thus confirming the status of the two children as
    Crown Wards to be adopted.

[7]

On April 20, 2012, the Childrens Aid Society of Ottawa (the CAS)
    confirmed with the court that the Appellant had not filed a motion for leave to
    appeal.

[8]

On April 25, 2012, the children were placed for adoption.

[9]

On May 1, 2012, the adoption placement was registered with the Ministry
    of Community and Social Services.

[10]

The
    Appellant has been self-represented throughout these proceedings.

THE PARTIES POSITIONS

[11]

The
    Appellant filed an affidavit in which she swore that she served the CAS with a
    notice of appeal on April 5, 2012.  She also deposes that she sent a notice of
    appeal and motion for a stay and fee waiver to this court on April 10, 2012,
    and that the court lost her documents.  She further deposes that she exchanged
    a number of letters with the CAS in the month of April in which she made it
    clear that she intended to appeal the Decision but needed some leeway in
    respect of the time limits.  She says that she tried without success to find a
    lawyer in Ottawa or Toronto that was willing to take her case.  Without the
    benefit of legal representation, she says that she acted as quickly as she
    could to file the necessary documents but that the court sent them back a
    number of times as they had not been properly completed.

[12]

The
    Appellant says that if leave to appeal is granted, she will introduce fresh
    evidence to show that Dr. Worenklein, the clinical psychologist who testified
    at trial, did so based on incorrect information, namely, that she had not
    followed his recommendations and taken parenting courses.  She says that she
    had followed his recommendations and taken a number of parenting courses prior
    to the first trial.

[13]

The
    CAS submits that the court does not have jurisdiction to grant an extension of
    time because the children have already been placed for adoption.  Its position
    is founded on s. 69(5) of the
CFSA
, which reads as follows:

69(5)  No extension of time for an appeal shall be
    granted where the child has been placed for adoption under Part VII (Adoption).


ANALYSIS

[14]

The
    CAS submission based on s. 69(5) of the
CFSA

consists of a
    single sentence.  It is a bald assertion that this court lacks jurisdiction to
    grant an extension of time.  There is no analysis, legislative history or
    anything else to support the contention that s. 69(5) of the
CFSA

applies
    to proceedings in this court.  Whether s. 69(5) applies to proceedings in this
    court is an extremely significant point of law, one that I decline to decide in
    the absence of full and proper argument.

[15]

Consequently,
    I will decide the motion on the merits.  I begin by reminding myself that the
    paramount purpose of the
CFSA
, as set out in s. 1(1), is to promote
    the best interests, protection, and well-being of children.  At the same time,
    however, the Supreme Court has recognized that a parents section 7
Charter

rights may be engaged in child protection proceedings:
New Brunswick
    (Minister of Health and Community Services) v. G. (J.)
,
[1999] 3
    S.C.R. 46.

[16]

On
    the materials before the court, I am fully satisfied that the Appellant formed
    the intention to appeal within the relevant time period and that she has
    adequately explained the delay in filing the requisite documents.

[17]

The
    Appellant appears to have made valiant efforts to file the requisite
    documentation within time.  It also appears clear that she made the CAS aware,
    before the appeal period had elapsed, that she intended to seek leave to appeal
    the Decision.  There is nothing in the CAS materials that responds to these
    allegations by the Appellant or in any way contradicts them.

[18]

On
    the assumption that the Appellants assertions are correct, I am concerned by
    the speed within which the adoption process was completed while the CAS was
    aware that the Appellant wished to seek leave to appeal.  The Appellant is
    self-represented, lives in Ottawa and is dealing with the courts in Toronto. 
    These proceedings are hugely significant to her.  I recognize that the
    childrens best interests must be the paramount consideration and that the
    legislation creates very strict, tight timelines with that goal in mind.  At
    the same time, the legislation does not oust all notions of fairness.  It may
    be that there is some answer to my concern about the speed with which the CAS
    acted despite being aware of the Appellants intentions to seek leave, however,
    as I have noted, the CAS offered no explanation or response to the Appellants
    version of events in its submissions to this court.

[19]

Nonetheless,
    based on a consideration of the merits of the appeal, I would not grant the
    motion for an extension of time.  The matters sought to be raised on appeal are
    factual in nature.  This court owes deference to factual determinations, a
    consideration that is particularly compelling in child protection proceedings. 
    And, importantly, the matters that the Appellant wishes to raise on appeal,
    including those relating to Dr. Worenklein, were fully canvassed and dealt with
    by the Divisional Court.  For example, in paras. 8-9 of its reasons, the
    Divisional Court refers to the parenting workshops, program and counselling
    that the Appellant took prior to trial.  It states that the Appellant acknowledged
    that until shortly before trial, she had refused to sign consent forms allowing
    the CAS to get information from those providing her with assistance.  The court
    went on to refer to the trial judges findings in respect of Dr. Worenkleins
    testimony, including his expressed concerns that the Appellant had not pursued
    parenting courses earlier in the process, had not consented to give the CAS
    direct access to those providing her with parenting courses, and the
    Appellants observed inability to apply what she had been taught.

[20]

The
    reasons of the Divisional Court are lengthy and compelling as, indeed, are the
    reasons given by the decision-makers at first instance.

[21]

I
    see no prospect of the Appellant being granted leave to appeal, if she were
    granted an extension of time within which to file the necessary documentation. 
    In the circumstances, the best interests of the children would not be served by
    granting an extension of time for filing.

DISPOSITION

[22]

For
    these reasons, the motion is dismissed.

Released: September 7, 2012 (E.E.G.)

E.E.
    Gillese J.A.


