



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 Toronto v. L.T., 2016
    ONCA 146

DATE: 20160224

DOCKET: C61082

Hoy A.C.J.O., Lauwers and Hourigan JJ.A.

BETWEEN

The Childrens Aid Society of Toronto

Respondent

(Applicant)

and

L.T. and E.U.

Appellants

(Respondents)

Reide Kaiser, for the appellant father

Caroline Handelman, for the respondent, Childrens Aid
    Society of Toronto

Catherine Bellinger and Herschel Gold, for the
    respondent, Office of the Childrens Lawyer representing the Child

Heard:  February 16, 2016

On appeal from the order of Justice Frances P. Kiteley of
    the Superior Court of Justice, dated August 27, 2015.

Lauwers J.A.:

[1]

The motion judge issued an order dismissing, for delay, the appeal of
    the parents from the order of S.B. Sherr J. of the Ontario Court of Justice in
    a child protection proceeding under the

Child and Family Services Act
,
    R.S.O. 1990, c. C.11, as amended. The trial judge issued his decision on
    June 19, 2014, which is reported at 2014 ONCJ 299, 45 R.F.L. (7
th
)
    413.

[2]

The parents appeal the motion judges order on the basis that she did
    not consider and apply all the elements of the test for dismissing an appeal
    for delay, particularly the merits of the appeal.

The Factual Context of the Underlying Appeal

[3]

The trial judge heard extensive evidence over a number of days. His
    order and concluding comments, at paras. 270-271, set the stage for this appeal:

Final orders shall go on the following terms:

(a) The statutory findings for the
    child pursuant to subsection 47 (2) of the [
Child and Family Services
]
Act
are made as set out in the Statement of Agreed Facts filed as
    exhibit 14 at trial.

(b) The child is found to be in need of
    protection pursuant to sub-clauses 37 (2) (b) (i) and (ii) of the
Act
and clauses 37 (2) (g) and (i) of the
Act
.

(c) The child is made a Crown ward.

(d) The parents have no right of access
    to the child.

(e) The child has a right of access to
    the parents on the following terms and conditions:

(i) Access shall take place once each
    month plus whatever other access the society agrees to, in consultation with
    the child and the caregivers.

(ii) Access shall not take place for
    one month following the release of this decision.

(iii) Access shall be fully
    supervised by the society.

(iv) The society will have the
    discretion to terminate or suspend any visit if, in the society's view, the
    parents act inappropriately.

It was very clear to the court how much the parents love their
    child and how painful this process has been for them. While they will be
    understandably disappointed by this decision, they still have an important role
    to play right now in their daughter's life. It is important that they continue
    to express their love for the child, be present in her life in a constructive
    way and accept the decision that she will be raised by the caregivers. It will
    be invaluable to the child if they do this and the quality of the parents'
    future relationship with the child will likely depend on how well they are able
    to do this. This involves placing the child's emotional needs ahead of their
    own needs. I wish them the best.

[4]

The parents appealed the order to the Superior Court of Justice on a timely
    basis but had great difficulty in perfecting the appeal.

The Childrens Aid Societys Motion to Dismiss for Delay

[5]

The motion judge heard the Childrens Aid Societys motion to dismiss
    the appeal for delay a few weeks before the appeal was to be heard on the
    merits on September 17, 2015. The prospect of such a motion was before the
    parties and was discussed at case conferences. The first such motion had been
    brought by the Society on April 20, 2015, but was adjourned at the parents
    request then, and again adjourned on May 19, 2015 at the request of the
    Society. The motion before the motion judge was a new one based on updated
    material. The parents were self-represented. The motion judge refused their
    request for a weeks adjournment to give them time to prepare to argue the
    motion.

[6]

The test for dismissing an appeal for delay in civil actions was succinctly
    stated by Weiler J.A. in
Paulsson v. Cooper
,
2010 ONCA 21, at para. 2:

The factors a court should consider in deciding whether to
    grant this type of motion are well-known. They are: whether the applicant had
    an intention to appeal within the time for bringing an appeal; the length of
    the delay, and any explanation for the delay; any prejudice to the respondent
    caused by the delay; and the justice of the case. This last factor is most
    important and requires a consideration of the merits of the appeal.

[7]

An added element in family cases involving children is the effect of
    delay on the best interests of the child. Stability and finality in custody
    issues are very important for children, especially younger children, and this
    too must be taken into account is assessing delay:  see
D.G. v. A.F
,
    2014 ONCA 436, at paras. 17, 33-34, citing the
Children's Law Reform Act
,
    R.S.O. 1990 c. C.12, s. 19(a), and
Van de Perre v. Edwards
, 2001 SCC
    60, [2001] 2 S.C.R. 1014, at para. 13.

[8]

The parents assert the following facts, the accuracy of which is not seriously
    disputed:

The parents demonstrated a clear intention to appeal. 
    Unfortunately, the trial transcript was not available for about one year after
    they served their Notice of Appeal.  It was impossible for the Parents to
    perfect the appeal until the transcript was complete. The Parents did
    everything within their financial abilities to move the appeal forward. 
    Difficulties with legal aid, strict financial limitations, and the court
    reporter were the main causes of the delay.

[9]

The parents also submit that the motion judge breached their right to a
    fair hearing by denying their request for a weeks adjournment before hearing
    the Societys motion. The parents justified their request on the basis that
    they had three business days notice of the motion, their primary language is
    Hungarian, and they had limited financial resources, having been denied Legal Aid.

[10]

In
    her reasons for dismissing the appeal, the motion judge noted that there was no
    prospect that the appeal then scheduled for about three weeks later could
    proceed because there was no appeal record, no certified copies of transcripts
    and no factum. The inevitable need to adjourn the scheduled appeal date would
    obviously have led to more delay.

[11]

The
    motion judge focussed on the delay in perfecting the appeal:

As indicated, the motion by the Childrens Aid Society,
    supported by the OCL is not based upon the lack of merit, but focuses on delay.
    I observe only that having read the very detailed 52-page judgment and the one
    and one-half page document called factum, it indicates disagreement with
    facts.  There is no indication of errors in law.

[12]

The
    motion judge also noted that there is prejudice to this child to deprive her
    of the right to permanency planning (sic).

[13]

The
    parents document considered by the motion judge set out 13 grounds of appeal,
    none of which was a legal ground.  They were essentially challenges of factual
    determinations made by the trial judge which the parents disputed.

Discussion

[14]

Child
    protection proceedings leading to a Crown wardship order are very difficult for
    all concerned. The burden falls particularly heavily on parents who stand to
    lose their child. Where an appeal is being actively pursued in a child
    protection case, every reasonable effort should be made to accommodate parents
    who are self-represented. In this instance the parents were representing
    themselves and were hampered by financial difficulties, a language barrier and
    by an inability to respond fully to the requirements of the rules of the court.

[15]

Counsel
    for the parents argues that the motion judge did not turn her mind to the
    merits of the appeal, since she did not refer to them in her reasons.

[16]

Counsel
    for the respondents submit that the motion judge did consider the merits, despite
    the wording of her oral decision. She was well familiar with the case, having
    case-managed it, and she had read the trial decision. She adverted to the need
    for stability in the best interests of the child.

[17]

In
    my view, this uncertainty about whether the motion judge considered the merits is
    regrettable. It would have been preferable for the motion judge to have explicitly
    addressed the elements of the test for dismissing an appeal for delay, and
    especially the merits of the case before making her ruling, in light of its
    consequences.

[18]

In
    oral argument on the appeal, the court asked counsel for the appellants to
    address the merits of the appeal from the trial decision.

[19]

Counsel
    asserted that the positive elements in the evidence of the parents were
    compelling, particularly with reference to the preservation of the childs
    Hungarian language and culture.  The foster parents are not Hungarian.

[20]

In
    addition, counsel argued that the trial judge chose to prefer the evidence of
    the social workers over the evidence of the parents. In particular, the parents
    complained that a list of concerns about parenting put forward by the child was
    really authored by the Society, which had undue influence over the child.

[21]

Further,
    counsel submitted that the trial judge erred in finding that the parents would
    be unable to comply with the access order, even though that finding was based
    on their previous conduct at the access center.

[22]

The
    parents challenges were all fact-based. In the end, counsel was unable to
    point to a legal error made by the trial judge. He was also unable to point to
    any alleged error in the trial judges fact-finding that he could characterize
    as a palpable and overriding error.  An appeal is not a retrial.

[23]

Assuming,
    without deciding, that the motion judge did not fully consider the merits of
    the appeal, I have done so and conclude that the appeal has no merit. Accordingly,
    the motion judges refusal of an adjournment therefore had no effect on this
    inevitable outcome.

[24]

The
    situation that confronts the court on this appeal is that another six months
    have passed in the life of this child. On the date this appeal was argued, she
    was just over 11 years old, and had been in the continuous care of the foster
    family since August 2013, about two and a half years. The child has indicated a
    desire to be adopted by the foster parents, and the pendency of this appeal is
    an obstacle. It is in the childs best interests to bring these proceedings to
    a close, and give the trial judges order an opportunity to work.

[25]

In
    the circumstances, I would dismiss the appeal, without costs.

Released: February 24, 2016 AH

P.
    Lauwers J.A.

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

I
    agree C. W. Hourigan J.A.


