Children's Aid Society of Simcoe (County) v. M.J. et al., (2006) 217 O.A.C. 38 (DC)

• Judge: Lane, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 18, 2006
• Jurisdiction: Ontario
• Citations: (2006), 217 O.A.C. 38 (DC)

CAS v. M.J. (2006), 217 O.A.C. 38 (DC)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. OC.095

Children's Aid Society of the County of Simcoe (applicant/respondent on appeal/responding on motion) v. M.J. (respondent/appellant/moving party on motion) and M.S. (respondent)

(247/06)

Indexed As: Children's Aid Society of Simcoe (County) v. M.J. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Lane, J.

October 20, 2006.

Summary:

The Children's Aid Society recommended that two half-siblings (J. and V.) be placed in adoptive homes, but not together. M.J. was the biological father of J. and stepfather of V. A status review was launched to consider V.'s future. In that proceeding, M.J. and E.K., with whom M.J. resided, proposed a plan that V. should be returned to their care. Wildman, J., made an order that J. be made a Crown ward with no access to the parents for the purposes of adoption, on the basis that M.J. and E.K. could not meet J.'s emotional needs. M.J. appealed the order, asking that J. be returned to his care. The appeal was not yet perfected. M.J. moved for an order permitting him to commence a status review in respect of J., so that the status of J. and V. could be decided in the same court at the same time. If such leave was granted, M.J. proposed to withdraw the appeal of Wildman, J.'s, order as to J.

The Ontario Divisional Court, per Lane, J., dismissed the application.

Courts - Topic 1782

Powers - Guardianship - General - Courts with parens patriae jurisdiction - Section 64(4) of the Child and Family Services Act (CFSA) provided that an application for review of a child's status could be made on notice to the society by, among others, a parent - However, s. 64(7) provided that no such application could be brought within six months of the final disposition of an appeal from a previous application - Section 134(2) of the Courts of Justice Act (CJA) provided that "On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal." - The Ontario Divisional Court held that the broad-based jurisdiction in s. 134(2) of the CJA did not supplant the specific provision in s. 64(7) of the CFSA - Further, the Superior Court's parens patriae jurisdiction did not entitle it to make an order expressly prohibited by the CFSA - That jurisdiction was normally invoked to fill a gap in legislation and not to supersede applicable legislation - See paragraphs 6 to 11.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - [See Courts - Topic 1782 ].

Guardian and Ward - Topic 827

Public trustee or guardian - Variation of guardianship - Jurisdiction - [See Courts - Topic 1782 ].

Guardian and Ward - Topic 829

Public trustee or guardian - Variation of guardianship - Grounds for - The Children's Aid Society recommended that two half-siblings (J. and V.) be placed in adoptive homes, but not together - M.J. was the biological father of J. and stepfather of V. - A status review was launched to consider V.'s future - In that proceeding, M.J. and E.K., with whom M.J. resided, proposed a plan that V. should be returned to their care - Wildman, J., made an order that J. be made a Crown ward with no access to the parents for the purposes of adoption, on the basis that M.J. and E.K. could not meet J.'s emotional needs - M.J. appealed, asking that J. be returned to his care - The appeal was not yet perfected - M.J. moved for an order permitting him to commence a status review in respect of J., so that the status of J. and V. could be decided in the same court at the same time - If such leave was granted, M.J. proposed to withdraw the appeal of Wildman, J.'s, order as to J. - The Ontario Divisional Court, per Lane, J., dismissed the application - Lane, J., held, inter alia, that it was not in J.'s best interests that a new trial be directed - The child deserved not to be left in limbo for another couple of years or more when there was considerable evidence that nothing had really changed - While the positive relationship between the siblings was important, it could be addressed in other ways should the courts hearing the appeal and the status review regard it as desirable to do so - See paragraph 12.

Cases Noticed:

Falkiner et al. v. Director of Income Maintenance (Ont.) et al. (2000), 136 O.A.C. 100; 189 D.L.R.(4th) 277 (C.A.), refd to. [para. 8, footnote 1].

CPC International Inc. et al. v. Seaforth Creamery Inc. et al. (1996), 94 O.A.C. 5 (C.A.), refd to. [para. 8, footnote 2].

Waxman v. Waxman, [2003] O.J. No. 73 (C.A.), refd to. [para. 8, footnote 3].

Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 40 O.A.C. 117; 74 O.R.(2d) 161 (C.A.), refd to. [para. 8, footnote 4].

Ahani v. Canada (Attorney General) (2002), 155 O.A.C. 1 (C.A.), refd to. [para. 9, footnote 5].

Statutes Noticed:

Child and Family Services Act, R.S.O. 1990, c. C-11, sect. 64(7) [para. 6].

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 134(2) [para. 7].

Counsel:

Ian Mang, for the moving party;

Debora Lyons, for the applicant/responding;

Manjusha Pawagi, Children's Lawyer, for the Child J.;

M.S. in person.

This motion was heard on October 18, 2006, by Lane, J., of the Ontario Divisional Court, who delivered the following decision on October 20, 2006.