



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. E.O., 2015
    ONCA 696

DATE: 20151019

DOCKET: M45587

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Childrens Aid Society of Toronto

Applicant (Respondent in Appeal)

and

E.O.

Respondent (Appellant in Appeal)

E.O., appearing in person

Erin Rose, for the applicant (respondent in appeal)

Heard:  October 5, 2015

ENDORSEMENT

Overview

[1]

The proposed appellant is the biological mother of a child who is the
    subject of child protection proceedings. On April 29, 2014, McLeod J. of the
    Ontario Court of Justice ordered that the child be made a Crown ward, for the
    purpose of adoption, without parental access. The childs father appealed that
    decision to the Superior Court of Justice and, on March 31, 2015, his appeal
    was dismissed. He appealed further to this court. The mother, who did not
    participate in the earlier proceedings, now also wishes to appeal the March 31,
    2015 decision (the Appealed Decision) to this court and brought a motion for
    an order granting her an extension of time to file a Notice of Appeal.

[2]

The mothers motion was heard on October 5, 2015, the scheduled hearing
    date for the fathers appeal of the Appealed Decision. The mother and the
    Childrens Aid Society of Toronto (the CAS) filed affidavits at the hearing
    of the motion. We dismissed the mothers motion, with reasons to follow, and
    proceeded to hear the fathers appeal.

[3]

The following are our reasons for dismissing the mothers motion
    for an extension of time.

[4]

We first provide some background,
    for context. Some details, which are undisputed, are taken from prior judicial
    decisions relating to the child. We then consider the test applicable on a
    motion to extend time to file a Notice of Appeal and explain why it is not met
    in this case.

Background

[5]

The child who is the subject of this appeal  a daughter born November
    19, 2011  is now almost four years old. The mother has not had contact with
    the child since April 11, 2012.

[6]

At the time of the childs birth, the mother was incarcerated for
    fraudulently impersonating a nurse. The father fronted the employment agency
    that hired her out to work as an unqualified nurse. The father cared for the
    child until she was just under five months of age when he too was incarcerated
    for his role in the fraud. While it appeared to the CAS that the father was
    able to care appropriately for the child, the CAS was concerned that the mother
    posed a risk to the child as a result of her history of unstable mental health,
    a pattern of failure to attend to the medical needs of her children, her lack
    of cooperation with the CAS and the fact that she was serving a substantial
    custodial sentence. As a result, the Supervision Order placing the child with
    the father included conditions relating to the mother, including one
    restricting her access to the child.

[7]

After the father was incarcerated, there was no one to care for the
    child. A finding that the child was in need of protection was made on an
    uncontested basis on June 13, 2012. She has been in the continuous care and
    custody of the CAS since then and has resided with her foster mother  and
    proposed adoptive parent  throughout that time.

[8]

On February 12, 2013, the CAS filed an Amended Status Review Application
    and sought an order of Crown wardship with no access for the child.

[9]

On January 28, 2014, the mother, represented by counsel, made an oral
    motion requesting an extension of time to serve and file an Answer and Plan of Care
    in relation to the Crown wardship proceedings. Justice Spence of the Ontario
    Court of Justice dismissed her request, giving oral reasons on the same day. On
    February 11, 2014, the mother served the CAS with a Notice of Appeal of Spence
    J.s order.

[10]

When
    released from custody, the father began exercising access to the child. He opposed
    the CAS application for Crown wardship and sought to regain custody of the
    child. The matter proceeded to trial by way of a status review hearing, held
    over five days in April 2014. On April 29, 2014, the trial judge made the child
    a Crown ward, for the purpose of adoption, without parental access. The mother
    did not attend or participate at the trial.

[11]

On
    March 3, 2015, the CAS brought a motion in the Superior Court of Justice to
    dismiss the mothers appeal of Spence J.s order denying an extension of time
    to file an Answer and Plan of Care for delay. Duty counsel assisted the mother
    and made submissions that included facts not in evidence before the court. In
    his endorsement granting the CAS motion, Perkins J. noted that the mother had
    failed to comply with a court order to perfect her appeal by November 9, 2014.
    He also noted that an appeal by the father to the Superior Court of Justice was
    pending. He wrote that, even if the facts not in evidence were true, it was
    highly unlikely that they would result in an order overturning the order under
    appeal, given the time that had elapsed. Further, the mother had not explained
    her delay.

[12]

The
    fathers appeal of the trial judges decision, making the child a Crown ward, was
    heard at the Superior Court of Justice on March 5, 2015. The father argued that
    the trial judge had made palpable and overriding errors in determining the
    facts on which he relied in ordering a Crown wardship and no parental access.
    The mother did not participate in the appeal. On March 31, 2015, the appeal
    judge released the Appealed Decision, dismissing the fathers appeal.

[13]

The
    father then appealed to this court. Since hearing the mothers motion, we have
    released reasons dismissing the fathers further appeal.

[14]

The father remains subject to a probation order that prohibits
    contact with the mother. The father violated that order by continuing an
    intimate relationship with the mother. That relationship resulted in the birth
    of another child (P) on January 10, 2015.

[15]

Following Ps birth, the mother
    voluntarily placed P into the CAS care and there is an ongoing proceeding in
    respect of her custody. The mother has exercised supervised access to P twice
    per week for two hours since January 2015. On September 18, 2015, the CAS
    issued an Amended Protection Application seeking that P be made a Crown ward
    without access for the purpose of adoption.

The Applicable Test on a Motion
    to Extend Time

[16]

The following factors are relevant
    on a motion to extend time to file a Notice of Appeal: (1) whether the
    appellant formed an intention to appeal within the relevant period; (2) the
    length of and explanation for the delay; (3) any prejudice to the respondent;
    (4) the merits of the appeal; and (5) whether the justice of the case
    requires it:
Kefeli v. Centennial College of Applied Arts and Technology
(2002), 23 C.P.C. (5th) 35 (Ont. C.A.).

[17]

We deal with these factors in
    turn.

[18]

The mothers evidence is that she
    was aware that the father was appealing the Appealed Decision and did not
    consider filing her own appeal until she attended a free legal advice session
    at a legal aid clinic on September 23, 2015, where she was advised to file a
    motion for an extension of time to file a Notice of Appeal. She followed this
    advice and filed her motion for an extension of time on September 28, 2015. The
    approximate six-month delay between the date of the Appealed Decision and the
    time at which the mother sought to file her Notice of Appeal appears to have
    arisen because she had no intention to appeal during that time. She therefore
    did not form such an intention within the relevant period, namely within 30
    days of the Appealed Decision.

[19]

In her affidavit, the mother now
    offers an explanation for her delay in appealing the order of Spence J.
[1]
However, what we must consider on this motion is the reason for her delay in
    appealing the Appealed Decision. As we discuss above, the explanation for this
    latter period of delay is that the mother did not consider appealing the
    Appealed Decision until after she attended a legal advice session at a legal
    aid clinic. The fact that she did not turn her mind to an appeal is not a
    sufficient explanation to warrant granting an extension of time.

[20]

The prejudice that must be considered
    in this case is the prejudice to the child. We reject the argument  advanced
    by counsel for the father, on behalf of the mother  that because the child is
    living with the proposed adoptive mother, there is no prejudice to the child.
    If an extension had been granted, the fathers appeal of the Appealed Decision
    would have had to be adjourned. The foster mother wishes to adopt the child as
    soon as possible. Permanency, at this juncture, is in the childs best
    interests.

[21]

Most importantly, the mothers appeal
    of the Appealed Decision is without merit. She did not participate in the
    appeal or the trial below. She is therefore not in a position to appeal the
    Appealed Decision. Even if she were, in our view, she would have no chance of
    success. The mother has not seen the child in nearly three and one half years.
    Moreover, her affidavit discloses that she is on bail from an immigration hold;
    she received an unfavourable parenting capacity assessment in June 2015 (which
    she contests); and she is on the waiting list for a special treatment program
    for individuals with severe and persistent mental illness. Accordingly, it
    would not be in the childs best interests to remove her from her foster
    mothers care and place her in the mothers custody.

[22]

Having regard to all of the
    foregoing, the justice of the case does not require an extension of time.

[23]

The motion is accordingly dismissed.

Alexandra Hoy A.C.J.O.

K.M. Weiler J.A.

G. Pardu J.A.





[1]
She says her counsel was ineffective and abandoned her case; she was denied
    legal aid when that counsel provided an unfavourable opinion in October 2014;
    she was incarcerated when the CAS sent her documents in October 2014; while she
    was incarcerated and later, while she was on immigration hold, she did not have
    access to those documents; and, when she was released from immigration hold on
    January 15, 2015 on bail, she was recovering from a caesarean section surgery
    and was unable to pick up her property  including the court documents  until
    February 2015.



