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 child’s parent or foster parent or a member of the child’s 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 Ottawa v. S.N.-D., 2012 ONCA 590
DATE: 20120907
DOCKET: M41546
Gillese J.A. (In Chambers)
BETWEEN
Children’s 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 28th, 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 Children’s 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 parent’s 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 Appellant’s 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 children’s 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 Appellant’s intentions to seek leave, however, as I have noted, the CAS offered no explanation or response to the Appellant’s 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 judge’s findings in respect of Dr. Worenklein’s 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 Appellant’s 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.”