



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. V.D., 2017
    ONCA 514

DATE: 20170619

DOCKET: M47375, M47581 and M47785 (C62218)

Rouleau, Hourigan and Benotto JJ.A.

BETWEEN

Childrens Aid Society of Toronto

Responding Party

(Respondent)

and

V.D. and P.V.

Moving Parties

(Appellants)

V.D., acting in person

P.V., acting in person

Lisa Hayes, for the responding party

Heard: In writing

Benotto J.A.:

[1]

A nine-year-old boy has been in child protection for over six years. His
    biological mother  assisted by the biological father  moves to re-open this
    courts dismissal of her appeal. For the reasons that follow, I would dismiss
    the motion and, pursuant to r. 37.16 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, prohibit the parents from bringing any further motions in
    this proceeding without leave.

A.

Background

[2]

Phillip
[1]
was born on January 4, 2008 to V.D (mother) and P.V. (father). He was
    apprehended by the Childrens Aid Society of Toronto (CAS) on May 16, 2011.
    He was three-years-old. The home from which he was apprehended was described as
    follows:

[It] had a foul odour and was in a state of pandemonium.
    Garbage was everywhere and rotting food covered most surfaces  Cockroaches
    were everywhere.

[3]

The child was in terrible shape. He was filthy, had not been bathed, and
    his clothes did not fit. Dr. Leo Levin, a pediatrician, described the child as
    a kind of ... feral. He displayed signs of significant delay in all areas of
    functioning. Dr. Dan Fitzgerald, a child psychologist, found the childs
    functioning was at the low level and described his situation as severe
    neglect. The father has not seen the child since he was apprehended.

[4]

The child remained in the temporary care of the CAS until a trial before
    Weagant J. of the Ontario Court of Justice. During the 35-day trial, 26
    witnesses testified, including Dr. Levin, Dr. Fitzgerald, and Dr. Nitza Perlman,
    who prepared parenting capacity assessments. The trial judge found Phillip in
    need of protection and made him a Crown ward. With respect to the father, the
    trial judge said, any consideration of [the father] having access, supervised
    or otherwise, is completely out of the question.

[5]

The trial judge, clearly concerned about what role the mother would play
    in the childs life, determined that a third parenting capacity assessment
    should be conducted and appointed Dr. Jean Wittenberg, a staff psychiatrist at
    the Hospital for Sick Children where he is the head of the Infant Psychiatry
    Program. In a 76-page assessment report, Dr. Wittenberg concluded that the
    mother did not have the ability to be a caregiver for Phillip.

[6]

Meanwhile, the CAS obtained a restraining order to prevent the mother
    from harassing the childs foster parents. Dr. Wittenberg testified that the
    mothers conduct toward him had been harassing as well. Dr. Wittenbergs
    evidence was consistent with many CAS witnesses in relation to their
    experiences attempting to work cooperatively with the mother. The trial judge
    commented:

[T]his pattern of threatening the participants in the legal
    process is indeed an ongoing theme with [the mother]. In the hundreds of pages
    of out-of-court communications, submissions and motions that have shown up in
    my inbox  there are many references to Law Society complaints against a former
    CAS counsel. I have previously made reference to the number of interlocutory
    appeals  the threat of appeal persisted in oral submissions until the last
    court appearance.

[7]

By order dated July 29, 2015, Weagant J. made Phillip a Crown ward with
    no access to the mother or father, pursuant to s. 57(1)(3) of the
Child and
    Family Services Act
, R.S.O. 1990, c. C.11 (
CFSA
). This order would
    permit the child to be placed for adoption.

[8]

The mother, joined by the father, appealed the order of Weagant J. to
    the Superior Court of Justice, asserting the trial judge was biased, had
    misdirected himself, and erred in law in numerous respects. On May 10, 2016,
    Backhouse J. of the Superior Court of Justice carefully reviewed the
    allegations and concluded there was no merit to the parents multiple grounds
    of appeal. The appeal was dismissed.

[9]

The parents then appealed to this court. The appeal was heard on
    December 12, 2016. At the outset of oral argument, the mother, supported by the
    father, sought various relief, including: (i) a further adjournment of the
    appeal to afford the appellants time to review the transcripts of the
    proceeding before Backhouse J., which they claimed to have not received; (ii)
    additional time for argument of the appeal, namely, 20 hours for the mother and
    20 hours for the father; (iii) the appointment of a five-person panel of this
    court to hear the appeal; (iv) the granting of leave to appeal to the Supreme
    Court of Canada; and (v) in the case of the father, an order removing him as a
    named appellant on this appeal to permit him to commence his own appeal.

[10]

The panel declined to grant any of the requested relief. On December 20,
    2016, the panel dismissed the appeal on its merits.

[11]

The child has now been in the care of the CAS for six years, since May
    16, 2011. In dismissing the appeal, this court said:

The trial judges findings about the nature and extent of the
    neglect that [Philip] experienced over a lengthy period while in [the mothers]
    care, his needs and the type of parenting that he requires to meet those needs
    were amply supported by the evidence at trial. The lengthy litigation in this
    case has prevented permanency and long-term stability in [Phillips] life and
    precluded adoption efforts. We agree with the CAS that closure should be
    brought to this unfortunate chapter in Phillips life and that he should be
    placed for adoption without further delay.

B.

Motion to re-open the appeal

[12]

The mother now moves to re-open the appeal and have a new trial. She has
    re-argued all of the matters dealt with before Weagant J., Backhouse J. and
    this court. In support of her motion, she resumes allegations of bias on the
    part of the trial judge, misfeasance by the expert witnesses, and defamation
    against her.

[13]

The CAS brought a cross-motion to dismiss the motion and to settle the
    outstanding order dismissing the appeal.

[14]

The motion came before Epstein J.A. on May 3, 2017. She directed that
    the mothers motion be heard by a panel in writing to determine whether the
    proposed motion to re-open the appeal should be dismissed for delay or as
    frivolous, vexatious or otherwise an abuse of the process of the court under r.
    2.1.02.

C.

Analysis

[15]

I deal first with the merits of the mothers motion and then consider
    whether to preclude the parents from making further motions without leave.

(1)

Merits of the motion

[16]

I would dismiss the parents motion for two reasons. First, it lacks
    merit. They seek a third appeal from the order of the trial judge. The mother
    puts forth the same grounds that have been dismissed twice.

[17]

Second, the delay that the mothers actions have caused are damaging to
    the child and contrary to all of the imperatives of child protection
    legislation. Matters relating to child protection are to be held to strict
    timelines, both pursuant to the
CFSA
and the
Family Law Rules
,
    O. Reg. 114/99. The philosophy underlying these strict timelines is basic: the
    child needs to have clarity, certainty and an opportunity for a future. When,
    as here, the child qualifies for adoption, every day of delay impacts his
    chances to join a loving family.

(2)

Prohibition against further motions

[18]

These same considerations impact my determination that the parents must
    be precluded from launching further motions without leave.

[19]

The
Rules of Civil Procedure
provide:

2
.1.02 (1) The court may, on its own
    initiative, stay or dismiss a motion if the motion appears on its face to be
    frivolous or vexatious or otherwise an abuse of the process of the court.



(3) On making an order under subrule (1), the court
    may also make an order under rule 37.16 prohibiting the moving party from
    making further motions in a proceeding without leave.



37
.16 On motion by any party, a judge or master may by
    order prohibit another party from making further motions in the proceeding
    without leave, where the judge or master on the hearing of the motion is
    satisfied that the other party is attempting to delay or add to the costs of
    the proceeding or otherwise abuse the process of the court by a multiplicity of
    frivolous or vexatious motions.

[20]

The mothers motion must be dismissed as frivolous, vexatious and an
    abuse of process. Her actions in pursuing this matter seriously impact the
    well-being of the child.

[21]

I am also satisfied, pursuant to r. 37.16, that she is attempting to
    delay the proceeding by a multiplicity of frivolous motions in this court. There
    have been multiple motions, orders for extensions of time, and refusals to
    settle orders. This pattern is a continuation of conduct that ran rampant in
    the courts below. The record is replete with correspondence, motions, requests,
    complaints, and activities which have frustrated the resolution of this childs
    future. She appears to be supported in these attempts by the childs father.

D.

Disposition

[22]

For the reasons above, I order:

1.     The
    parents motion is dismissed (it will not be necessary to deal with the motion
    by the CAS);

2.     The
    parents, V.D. and P.V., are prohibited from making further motions in relation
    to the child protection proceeding, without leave; and

3.     I
    dispense with the requirement that this order as well as all previous orders of
    this court be approved as to form and content.

[23]

The CAS has brought a motion to dismiss the motion as abandoned
    (M47581). It will not be necessary to address this motion.

Released: PR JUN 19 2017

M.L. Benotto J.A.

I agree. Paul Rouleau
    J.A.

I agree. C.W. Hourigan
    J.A.





[1]
I have given the child a pseudonym to avoid the use of initials.


