Children’s Aid Society of Toronto v. E.O., 2016 ONCJ 2

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 45 (7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication.— The court may make an order, . . . (

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 . . . publication of the report, . . ., 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.

(8) Prohibition: identifying child.— 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.

(9) Idem: order re adult.— 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. . . . 85.—

(3) Idem.— A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Court file No. 54670/11 DATE: 2016-01-04 CITATION: Children’s Aid Society of Toronto v. E.O. , 2016 ONCJ 2 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1 IN THE MATTER OF The Child and Family Services Act, R.S.O. 1990, c. 11 AND IN THE MATTER OF P.M. (D.O.B. […], 2011) BETWEEN : CHILDREN’S AID SOCIETY OF TORONTO Applicant society - and - E.O.

Respondent mother -and- P.M. Respondent father Before Justice Robert J. Spence Hearing held on 23 December 2015 Reasons released 4 January 2016 Ms. Linda Hofbauer for the applicant society Mr. Anthony Macri for respondent mother Mr.

David Miller for the respondent father Nature of this case [1] [ 1 ] On October 9, 2015, the mother issued a status review application (“application”), seeking to review a trial decision of Justice Malcolm McLeod, dated April 29, 2014, ordering the child P.M., to be made a Crown ward, without access, so that she can be placed for adoption. [ 2 ] The society has responded by asking the court to strike the application, on the basis that it is statute barred. [ 3 ] Further, the society submits, that even if the application is not statute barred, the court should refuse leave to proceed with the application.

Issues [ 4 ] There are two issues before the court, namely: 1. Is the status review application statute barred and therefore beyond the jurisdiction of this court? 2. If the application is not statute barred, should the court grant leave to permit the mother to proceed with her application? Issue 1 – Is the status review application statute barred? [ 5 ] To understand the society’s position that the application is statute barred, it is necessary to briefly set out the relevant timelines. 1. The child was born on […], 2011.

At the time of the child’s birth the mother was in prison, having been convicted of impersonating

a nurse. 2. On December 5, 2011, the child was placed in her father’s care pursuant to a temporary supervision order. 3. Mother was released from prison in February 2012, but was re-arrested and incarcerated in March 2012. She has not had any contact with the child since her re-incarceration. 4. In April 2012, the child was apprehended by the society, and she has resided with the same foster family since that date, the same foster family who now seeks to adopt the child. 5. The trial decision making the child a Crown ward was released April 29, 2014. 6.

The father’s appeal of the trial decision was dismissed by the Superior Court of Justice on March 31, 2015. The mother did not participate in that appeal. 7. The father appealed the decision of the Superior Court of Justice to the Court of Appeal. On October 5, 2015 the mother brought a motion, seeking leave to participate in the father’s appeal. On that same day, the mother’s motion seeking leave was dismissed by the Court of Appeal. 8. Four days later, on October 9, 2015, the mother issued the within status review application. 9.

On October 19, 2015, the Court of Appeal dismissed father’s appeal of the decision of the Superior Court of Justice. [ 6 ] The society’s argument that the application is statute barred rests on the wording of subsection 65.1(7) of the Child and Family Services Act (“Act”), which reads [my emphasis]: Six-month period

(7) No application shall be made under subsection (4) within six months after the latest of, (

a) the day the order was made under subsection 57 (1) or 65.2 (1), whichever is applicable; (

b) the day the last application by a person under subsection (4) was disposed of; or (

c) the day any appeal from an order referred to in clause (

a) or a disposition referred to in clause (

b) was finally disposed of or abandoned. 2006, c. 5, s. 24 . [ 7 ] The wording of this subsection is mandatory. [ 8 ] The prohibition in subsection 65.1(7)(

c) would appear to bar a status review application from being issued within 6 months after an appeal is “finally disposed of”. [ 9 ] As I noted earlier, the mother issued her application on October 9 th , and the Court of Appeal did not release its decision until October 19 th . Thus, the mother’s application was issued before the appeal was “finally disposed of”. Accordingly, on the wording of that subsection, the application would arguably appear not to be statute barred. [ 10 ] However, the case of CAS v. M. W. , 2011 ONSC 1382 suggests otherwise.

In that case, Justice Mary Jo McLaren had occasion to consider the timing issue provided for under subsection 65.1(7) of the Act. At paragraph 14, McLaren, J. stated [my emphasis]: A Notice of Appeal would have to be served to set a new time period running pursuant to

section 65.1(7) in my view. [ 11 ] In other words, according to McLaren, J., the “new time period” does not begin when the appeal is “finally disposed of” but, rather, as soon as the Notice of Appeal is served. And, the timeline running from the date the Notice of Appeal is served until the expiry of six months following the date that the appeal is “finally disposed of”, is the time during which no status review application may be issued. [ 12 ] I agree with McLaren J.’s

interpretation of how the time lines ought to be measured. [ 13 ] While McLaren J. did not discuss the rationale behind her

interpretation, it seems to me that the point of interpreting the time

lines in this way is to avoid legal chaos. [ 14 ] Consider, for example, if an appeal were launched to the Court of Appeal on Day One, and on Day Two, a parent issued a status review application, before the appeal was heard and disposed of. What exactly would the status review application be seeking to review? [ 15 ] The court otherwise having jurisdiction to hear the status review application would surely hold that there is nothing to review until the pending appeal had been decided.

Until the outcome of that appeal, the court otherwise having jurisdiction to entertain the status review application would be hearing arguments that could be entirely moot or irrelevant.

To allow such a status review application to go forward would result in a multiplicity of proceedings, with arguments that would be impossible to formulate/crystallize until the ultimate disposition of the pending appeal. [ 16 ] Such a scheme would permit two court proceedings to exist simultaneously, both directed to determining the same issue, namely, whether the child should be returned to her parent, or whether she should remain a Crown ward and placed for adoption. [ 17 ] Accordingly, in my view it makes sense to interpret subsection 65.1(7) of the Act such that there is a complete embargo period for the issuance of a status review application, running from the service of a Notice of Appeal and for a period of six months following the disposition of that Appeal. [ 18 ] On behalf of the mother, Mr.

Macri argues that the application is not statute barred because the appeal was brought by the father, not the mother. And, according to the argument, to bar the mother from bringing proceedings when it was another person’s appeal which was dismissed results in punishing the mother for the actions of that other person – in this case, the father. [ 19 ] To interpret the statute in such a way, Mr.

Macri argues, is unfair, an unfairness which amounts to a denial of fundamental justice because, but for the father’s appeal , mother would otherwise have been able to bring her status review application. [ 20 ] In my view, the “ but for ” [2] argument is inherently fallacious, as its premise rests on the theory that if we could somehow turn back the clock and change one event, it is only that event which would change, and that all other events would remain the same. [ 21 ] The strength of mother’s argument rests on reversing one particular event, namely, father having appealed to the Court of Appeal.

But the difficulty with that argument is that if no such appeal had been launched, other events would almost certainly have changed. More specifically, because the foster family wished to adopt the child as soon as possible, it can then be assumed that if father had not appealed to the Court of Appeal, the placement for adoption would likely have occurred shortly after the time limit for appealing to the Court of Appeal had expired. [3] [ 22 ] The decision of the Superior Court of Justice was released March 31, 2015; so the expiry of the appeal period would have been May 1, 2015.

Therefore, it is reasonable to conclude that the adoption placement would have occurred shortly after May 1, 2015. [ 23 ] And once an adoption placement has taken place, the possibility of issuing a subsequent status review application is immediately foreclosed. [4] Accordingly, it is incorrect to argue that mother’s status review application issued October 9, 2015 would be able to go forward but for father’s appeal to the Court of Appeal. Instead, the mother’s application would have been statute barred on October 9, 2015. [5] [ 24 ] Mr.

Macri also argues that because the mother is not being “malicious” in bringing her application, she should not be prevented by the statute from having her application go forward. Specifically, mother’s factum states: [mother] is not being malicious in bringing this status review application . . . [she] was imprisoned at the time of the apprehension . . . [she] tried to participate in the trial, however she was denied the right. She appealed this, however this was unsuccessful.

Her plan has not been assessed or rejected by the court. [she] did not appeal the Crown wardship Order, and in fact she was prevented from so doing by the Court of Appeal for Ontario. [ 25 ] I disagree with that argument, principally because, in fact, mother was not ignored by the Court of Appeal. Nor, indeed, was she ignored by the other courts which dealt with this matter throughout. I extract the following from the decision of the Ontario Court of

Appeal, cited as Children's Aid Society of Toronto v. E.O. , 2015 ONCA 696 , beginning at paragraph 1 [my emphasis] : [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 child’s 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 mother’s motion was heard on October 5, 2015, the scheduled hearing date for the father’s appeal of the Appealed Decision. The mother and the Children’s Aid Society of Toronto (the “CAS”) filed affidavits at the hearing of the motion.

We dismissed the mother’s motion , with reasons to follow , and proceeded to hear the father’s appeal. [3] The following are our reasons for dismissing the mother’s motion for an extension of time. [ 26 ] I do not propose examine at length the Court of Appeal’s reasons. However, as part of those reasons, the Court of Appeal noted, beginning at paragraph 9 [my emphasis]: [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 mother’s 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 . [ 27 ] What the foregoing illustrates is that the mother was indeed afforded the opportunity to attend court proceedings.

In fact, she was a participant in the proceedings beginning on January 28, 2014, that is, from before the trial even commenced, right through and including to October 5, 2015, when the Ontario Court of Appeal heard her motion seeking to extend the time to file a Notice of Appeal to participate in the appeal before the Court of Appeal. [ 28 ] Beginning from prior the start of trial, and continuing through to the Court of Appeal, mother brought various motions.

The fact that all of her motions were dismissed does not, in my view, amount to a denial of the opportunity to be heard, and a denial of fundamental justice. Quite the opposite, as the various courts which heard her motions carefully considered them and dismissed them, with reasons . [ 29 ] Accordingly, when mother argues that “her plan has not been assessed or rejected by the court” and that she was “ prevented from [appealing] by the Court of Appeal for Ontario”, she is mischaracterizing the proceedings.

Although she states that she has been treated unfairly throughout and that she has been denied an opportunity to be heard: [ 30 ] The Ontario Court of Justice heard her motion and rejected it; [ 31 ] The Superior Court of Justice heard her motion and rejected it; and [ 32 ] The Ontario Court of Appeal heard her motion and rejected it. [ 33 ] All along the way, she sought and obtained an audience before whichever court she chose to attend. She was not ignored. Rather, she was unsuccessful. That is the distinction.

And when courts consider the issue of fairness and the right to be heard, this distinction is an important one.

[34] One could perhaps speculate on scenarios where a strict

interpretation of subsection 65.1(7) might result in unfairness to a parent.However, there is nothing on the facts of this case which would suggest to the court that the wording of that subsection of the Actoperates to punish this mother, thereby denying her right to fundamental justice. [35] For all of the foregoing I hold that mother’s status review application is barred by subsection 65.1(7) of the Act. [36] This conclusion is sufficient to dispose of the case before me.

However, if I am found to be incorrect, I move on to the secondissue, namely, whether mother should be given leave to proceed with the status review application. Issue 2 – Should leave to proceed be granted?[6] [37] Subsection 65.1(5) of the Act provides [my emphasis]: When leave to apply required

(5) Despite clause (4) (b), a parent of a child shall not make an application under subsection (4) without leave of the court if the childhas, immediately before the application, received continuous care for at least two years from the same foster parent or from the sameperson under a custody order. 2006, c. 5, s. 24. [38] It is undisputed that the child has been in the “continuous care for at least two years from the same foster parent”.

Accordingly,the mother requires leave of the court in order to proceed with her application. [39] The test for granting leave has been set out in various court decisions, and is well settled. For the sake of convenience I refer tothe recent case of Children’s Aid Society of Waterloo Region v. L.M., 2015 ONCJ 103, a decision of Justice Katherine S. Neill.

Referringto a number of other previously decided cases, Neill, J. sets out the test as follows, at paragraph 23: [23] The test to be applied for leave to bring a status review application with respect to a Crown ward pursuant to subsection65.1(5) of the Act is outlined by Justice Jennifer A. Blishen in C. v. Children’s Aid Society of Ottawa-Carleton, (ONSC), , 9 R.F.L. (5th) 269, [2000] O.J. No. 2063, 2000 Cars​well​Ont 1976 (Ont. Fam. Ct.), relying on the previousdecisions of Provincial Judge Douglas A. Bean in Catholic Children’s Aid Society of Metropolitan Toronto v. Beverley Anne F., (ON CJ), , [1988] O.J.

No. 2950, 1988 Cars​well​Ont 2213 (Ont. Prov. Ct., Fam. Div.); Provincial JudgeMary Jane Hatton in Debra B. v. Catholic Children’s Aid Society of Metropolitan Toronto, (ON CJ), , 27 A.C.W.S. (3d) 637, [1991] W.D.F.L. 891, [1991] O.J. No. 1128, 1991 Cars​well​Ont 1478 (Ont. Prov. Div.); and ProvincialJudge Lynn King in Catholic Children’s Aid Society of Metropolitan Toronto v. Marcella J., (ON CJ), , 52 A.C.W.S. (3d) 85, [1995] W.D.F.L. 226, 8 O.F.L.R. 176, [1994] O.J. No. 2903, 1994 Cars​well​Ont 2186 (Ont. Prov. Div.),being as follows:

(1) The status review is being brought bone fides;

(2) The relief sought cannot be obtained otherwise than reviewing the whole order itself;

(3) There is some unusual circumstance that justifies the review, in spite of the child’s permanent status.

(4) The review will likely accomplish the purposes of the Act set out in

section 1.

(5) The applicant has established a prima facie case. Analysis [40] As to the first two points, I am prepared to accept that the application is being brought bone fides and, further, that the reliefsought cannot be obtained otherwise than reviewing the whole order itself. [41] However, it is in the analysis of points three, four and five, where mother’s leave application fails. [42] Turning to the third point, mother argues that there is some unusual circumstance that justifies the review.

Specifically mother’sfactum argues: In this circumstance the issue that justifies the review is the fact that [mother] was denied the opportunity to present her plan due to herincarceration and the Court’s denial of her request to participate in the trial. Crown wardship was made based on a temporary limitationto her parenting, not a longstanding issue like mental health or addiction. The obstacle to her parenting has been addressed and removed.

[mother] can parent this or any other child. Indeed she has substantial access to her first child and she is doing well with her access with her third child. [ 43 ] As discussed earlier in these reasons, I do not view what has occurred as a “denial” of opportunity. When mother appeared before me on January 28, 2014, seeking an extension of time to file her Answer and Plan of Care so that she could participate in the trial, she had not seen then 26-month-old child for about 21 months.

The statutory time limit for the child to remain in care had been well exceeded, and by then the mother would have been a complete stranger to the child. [ 44 ] Notwithstanding the fact that mother had been incarcerated, she nevertheless could have filed her Answer and Plan of Care. She chose not to do so. [7] In considering whether to allow mother an extension of time, the court balanced the needs of the child, and the right of the child not to remain in litigation drift, with the mother’s parental rights as set out in the Act. [ 45 ] The statutory time limits provided for in the Act [8] are there for a reason.

Children require permanency in their lives; and the parents or caregivers from whom the child may have been apprehended, are given a limited amount of time to address the risk of harm issues which led to the apprehension, failing which, some type of permanent disposition must be made. [9] [ 46 ] Mother’s assertion that the “limitation to her parenting” was not a “longstanding issue” is factually incorrect, insofar as it relates to the time limits imposed by the Act. [ 47 ] Furthermore, mother’s assertion that she has “addressed” her parenting limitations and that she can “parent this or any other child” is simply her unproven characterization of what she believes to be true. [10] To allow a status review application to proceed on this bare assertion would be to further delay the child’s permanency planning – planning for a child whose family status has remained unresolved for more than four years . [ 48 ] In short, I disagree that there is some unusual circumstance that justifies the review sought by mother. [ 49 ] I turn next to the fourth part of the test, namely, whether the review will likely accomplish the purposes of the Act as set out in

section

Section 1 provides: Paramount purpose and other purposes Paramount purpose 1.

(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children. Other purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are: 1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent. 2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered. 3.

To recognize that children’s services should be provided in a manner that, i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children, iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate. 4.

To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences. 5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. 1999, c. 2, s. 1; 2006, c. 5, s. 1 .

[ 50 ] In her factum, mother argues: The paramount purpose of the CFSA is to promote the best interests, protection and well being of children.

As stated above, to deny a child the opportunity to be with a parent when principles of fundamental justice are compromised is never in a child’s best interest. [ 51 ] While the second sentence of this submission may have some merit, it assumes something which I have already found to be incorrect, namely, that mother was denied a hearing in accordance with the principles of fundamental justice. [ 52 ] While the Act always prefers that a child live with parents or relatives, that is not always possible in order to meet the paramount purpose of the Act, namely, the child’s best interests, protection and well being.

And in this case, the trial judge, the Superior Court of Justice and the Court of Appeal all came to the conclusion that living with a parent was not in the best interests, protection and well being of this child. [ 53 ] Because of that conclusion, the child was made a Crown ward and was made available for adoption. Because of that conclusion, this young child was afforded an opportunity for permanency and stability. [ 54 ] Finally, mother fails in the fifth and final part of the test, namely, that she has established a prima facie case for relief.

She states in her factum: [mother] has a definite plan for [the child’s] care, the same plan for [her other child]. [11] The circumstances that prevented her from parenting in the past are long past her and [mother’s] plan has merit and a sense of reality to it. [ 55 ] In mathematics, every equation has two sides. Similarly in law, the consideration of the merits of any case is a two-sided equation. [ 56 ] Putting mother’s case at its highest, whatever obstacles mother may now have overcome is only one side of the equation in determining whether there is a prima facie case for relief.

In the present case, mother’s argument focuses on her journey and where she has now arrived. [ 57 ] However, in child protection cases, the greater focus must always be on the child, specifically, what is in the best interests, protection and well being of the child in question.

And even if the court accepts that mother has made significant progress, this fails to take into account the second side of the equation – the child. [ 58 ] Once again, I turn to the statutory time limits imposed by the Act, as set out in subsection 70(1) and the child’s right for permanency as envisioned by that subsection. [ 59 ] This child has been with the same foster family since April 2012, in other words, about 45 months of the life of this 50-month-old child.

This foster family has committed itself to the long-term care of the child and, in fact, wishes to adopt the child as soon as possible. [ 60 ] While the mother may be the biological parent of the child, for all other purposes, including the child’s psychic outlook and her mental health, her real family – her only family - is her foster family. [ 61 ] The child has not seen the mother for several years. [ 62 ] The mother is a complete stranger to the child. [ 63 ] The child has no greater connection to the mother than she would have to any stranger on the street.

[ 64 ] It is difficult to imagine the psychological impact on the child were she to be wrenched away from the only family that she has ever known [12] , the family which has provided her with love and nurturing, the family which has shown an ability to look after her needs and the family which has provided her with consistency of care for virtually her entire life. [ 65 ] As remedial legislation, this is the very kind of placement which the Act seeks out, in those cases where children cannot be returned to a parent within the statutory time limit. [ 66 ] By what measure could the rupture of such a placement be viewed as being in the best interests of this child? [ 67 ] All of this is to emphasize how critically important it is, that in deciding whether an applicant has established a prima facie case, the court must consider the facts not only from the applicant’s perspective, but also from the child’s perspective. [ 68 ] And in this case, an examination of the facts from the child’s perspective, leads the court to conclude that the mother has fallen far short of establishing a prima facie case for relief.

In fact, in characterizing the strength of her case, I conclude that it would have virtually no chance of success whatsoever. [ 69 ] Accordingly the mother has not met the five-part test set out in the aforementioned case law so that even if her application were not statute barred, the court would not grant her leave to proceed with the application. Conclusion [ 70 ] For the reasons set out herein, I conclude: 1. The mother’s status review application is statute barred by the wording of subsection 65.1(7) of the Act, and 2.

Even if the status review application were not statute barred, the mother’s application would not meet the test for leave as required by subsection 65.1(5) of the Act, and as set out in the case law reviewed in these reasons. [ 71 ] In the result, the mother’s status review application is barred from proceeding. Justice Robert J. Spence January 4, 2016