



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: Valoris for Children and Adults of Prescott-Russell
    v. C.A.T., 2018 ONCA 182

DATE: 20180228

DOCKET: M48723

Feldman J.A. (Motion
    Judge)

BETWEEN

Valoris for Children and
    Adults of Prescott-Russell

Respondent (Respondent by Appeal)

and

C.A.T.

Applicant (Appellant by Appeal)

Alexandre Martel, for appellant

Sophie Côté-Langlois, for the respondent

Heard: February 15, 2018 in writing

REASONS
    FOR DECISION

[1]

The applicant
    mother seeks an extension of time to file her notice of motion for leave to
    appeal the Order of the Divisional Court, dated November 24, 2017.  That order
    dismissed her appeal from Justice Rogerss order dated June 29, 2016, making
    her child a Crown ward with no access for the purpose of adoption.

[2]

According
    to rule 61.03.1(3) of the
Rules of Civil Procedure
, the applicants  Notice of Motion
    for Leave to Appeal should have been filed and served 15 days after the
    Divisional Courts decision.  Instead, she served and filed it 26 days after
    that decision.

[3]

The applicant
    explains that the delay was attributable to attempts to secure financing for
    the appeal, her need to find appeal counsel and then appeal counsels illness
    during the relevant time.

[4]

The applicant
    argues that she would suffer great prejudice if a procedural irregularity
    finally decided the matter of her relationship to her child.

[5]

The
    respondent childrens aid society opposes the extension of time. It challenges
    the assertion that the applicant always intended to seek leave to appeal, as
    neither she nor her counsel contacted the society before filing the late notice
    of motion for leave to appeal. However, its primary position is that the appeal
    has no chance of success.  The child was apprehended four days after his birth in
    July 2013, and has been with his current foster family since December 2014. 
    This is the only family that this young child (age 4) has known.  He has bonded
    with the family and the family wants to adopt him.

[6]

As
    explained in
R. v. Menear (2002),
162 C.C.C. (3d) 233 (Ont. C.A.)
a party seeking an extension of
    time must demonstrate that justice requires that time be extended.  The court
    will usually consider the following three factors in determining whether an
    extension of time is in the interests of justice:


(i)

has the applicant shown a
bona fide

intention to appeal within the appeal period;


(ii)

has the applicant accounted for or explained the delay;
    and,


(iii)

is there merit to the proposed appeal.

[7]

In
    considering whether to grant any extension of time, the court always considers
    the justice of the case, and in proceedings where an order is made that affects
    a child, the best interests of the child.

[8]

Although
    the society was not contacted before being served late with the motion
    material, the mother has explained that she had a
bona fide
intention to
    appeal since receiving the decision and she has accounted for the delay.  The real
    issue is whether there is potential merit to the application for leave to
    appeal and the justice of the case. The merit of the proposed leave to appeal
    application is highly relevant both because time extensions must be justifiable,
    and because extending timelines for an appeal that appears to have no chance of
    success benefits no one.

[9]

The
    trial lasted two weeks and the court heard from 31 witnesses including 5 expert
    witnesses. The trial judge accepted that The mother is an intelligent,
    independent minded and functioning woman, with a rather complicated mental
    health history. However, he also accepted the evidence from society workers
    and from the assessing psychologist that she lacked insight into the childs
    needs and would not be able to meet those needs in a sufficiently consistent
    manner. She also lacked insight into her shortcomings and lacked demonstrated
    efforts to improve her shortcomings. Based on those findings, the trial judge
    concluded that the child was in need of protection on the basis of real risk of
    physical harm from the mothers failure to adequately care for, supervise and
    protect the child. The trial judge ordered Crown wardship with no access, to
    facilitate the childs adoption by the foster parents, who are prepared to
    adopt him and are the only family he has known.

[10]

In the Divisional Court,
    the applicant raised six grounds of appeal, all of which were specifically
    considered and rejected by the court: 1) the trial judge erred by finding the
    child in need of protection; 2) the trial judge erred by accepting the opinion
    of the psychologist assessor; 3) the trial judge erred by putting too much
    weight on the applicants historical mental health issues; 4) the trial judge
    erred by substantially disregarding evidence of a likelihood of positive
    change; 5) the trial judge erred by placing undue weight on the applicants
    failure to co-operate with the society; and 6) the society did not adequately
    seek an alternate placement in the community before resorting to a Crown wardship
    plan.

[11]

On the sixth issue, the
    Divisional Court in its reasons stated that it had reviewed the trial
    transcript of the various witnesses who spoke to that point, and accepted the
    trial judges conclusions that the society had made reasonable efforts. The
    court then noted at paras. 13-14:

The mother was clearly opposed to placing the child with
    members of her family, who also did not come forward to present a plan.  The
    mother was aware that she could have presented a plan from someone in her
    community, but this too did not result in the actual presentation of a plan for
    the child.

It is evident that Valoris has been unable to find a plan for
    the child that will necessarily encompass the mothers unique combination of
    Hare Krishna faith lived in the context of a Catholic community, despite their
    efforts to do so.  This, however, is only one factor to be considered in
    determining what is in the childs best interests.  In choosing a foster home
    and a future permanent home, Valoris attempted to meet this factor by finding a
    placement in the mothers chosen Catholic faith community.

[12]

The Divisional Court
    finally concluded at para. 17:

With respect to his findings of fact and the application of
    those facts to his conclusion, we cannot find any palpable or overriding
    error.  There was ample evidence for him to conclude that an order for Crown
    wardship was the only viable plan that would protect this child and be in his
    best interests.  For these reasons, the appeal is dismissed.

[13]

The applicant seeks to
    raise some of the same issues on her proposed leave to appeal application to
    this court. She also submits that the Divisional Courts reasons were not
    sufficient and seeks to raise again the issue of a community placement for the
    child, when Rogers J. found at paras 93 and 94 of his reasons:

The mothers plan is to care for the child on her own with some
    assistance from her friends and various governmental programs.

No community or family plans were presented to the Society or
    the Court.  I am satisfied that the Society made   reasonable efforts in this
    regard.

[14]

Leave to appeal
    applications are decided by a panel of the court based on written submissions. While
    the test for granting leave to appeal from a decision of the Divisional Court
    is governed by the test set out in the case of
Re Sault Dock Co. Ltd. And City of
    Sault Ste. Marie
, [1973] 2 O.R. 479, in child protection matters, the justice
    of the case and the best interests of the child will be the overriding
    considerations.

[15]

While the applicant
    sincerely wants to have her child or at least to have him in her community,
    following a full trial, a judge has found, upheld on appeal, that the child is
    in need of protection and that it is in his best interests to be made a Crown
    ward with no access so that he can be adopted by the family with whom he has
    lived for most of his life. There is no basis raised in the written material
    before the court that suggests that those courts erred in law or that the best
    interests of the child have been misapprehended.

[16]

As I see no potential
    merit in the leave to appeal application, the motion for an extension of time
    to apply for leave to appeal is dismissed. In the circumstances, there will be
    no costs of the application.

K. Feldman J.A.


