Canada: Children’s Aid Society Of London And Middlesex v. C.B.D.: Interests Of The Children Lead To Quashing Of Appeal In Child Protection Context

Quashing an appeal for lack of merit is an extreme remedy. But occasionally, when very little merit coincides with another social interest, an appeal can be quashed for a combination of reasons. Children's Aid Society of London and Middlesex v. C.B.D., released October 9, 2014, is an example of this, as the Ontario Court of Appeal quashed the appeal of the Children's Aid Society of London and Middlesex (the "Society") from a decision refusing to impose a child protection order. The Court held that the appeal had very little merit, and the interests of the children mandated that the appeal be quashed.

After an extremely high-conflict family law proceeding, the trial judge awarded custody of the three children of the marriage to the father, and dismissed the Society's application for an order declaring that the children needed protection from the father. He found that the wife and the Society acted in bad faith, and awarded the father full indemnity costs of over $2,000,000 (not a typo). The wife appealed the matrimonial decision, the wife and the Society both sought leave to appeal the costs order, and the Society appealed the dismissal of its child protection application. The father moved to quash the appeal from the order dismissing the child protection application.

For a unanimous Court of Appeal, Cronk J.A. granted the motion to quash:

[27]      In its Notice of Appeal, the Society advances 146 grounds in support of its contention that the trial judge erred in his disposition of the child protection application. [...]

[28]      In light of the grounds raised and the relief sought by the Society on appeal, I would frame the sole issue on this motion to quash as follows: is there any basis for declaring any of the children of the marriage to be children in need of protection under the Act, either now or at the time of commencement of the child protection application in 2010?

[29]      On the record before this court, I see no basis for declaring any of the children of the marriage, including M.X.B., to be children in need of protection within the meaning of the Act, either now or in September 2010.  It follows that I would allow C.D.B.'s motion to quash.  I reach this conclusion for the following reasons.

[30]      First, as I see it, the merits of the Society's appeal are tenuous, at best.  The trial judge concluded that the children of the marriage were not in need of protection from their father.  He found that the children would be in need of protection only if they were placed in the custody of their mother.  Since the trial judge also concluded that custody of the two youngest children should be awarded to C.D.B., he dismissed the Society's protection application.  Thus, in the trial judge's view, the Society had failed to demonstrate that any of the children were in need of protection as of the date of his decision (September 2013).

[31]      The trial judge made dozens of factual findings in support of these critical conclusions.  Virtually all these findings were based on his credibility assessments of C.D.B., L.D.B. and other witnesses. [...] As a result, the Society faces a steep uphill battle in seeking to disturb the trial judge's protection ruling on appeal.

[32]      Second, and importantly, there is no evidence before this court of any current protection concerns regarding any of the children.

[...]

[38]      Moreover, even assuming some minimal merit to the grounds of appeal sought to be advanced by the Society, I see no utility to the relief sought.  If successful on appeal – an outcome I regard as most unlikely – the primary relief sought by the Society is tantamount to a retroactive protection order, that is, a determination that the children were in need of protection almost four years ago, when the Society's child protection application was commenced.  In my view, in the absence of any evidence of existing child protection concerns, such an order would be contrary to the best interests of the children.  Indeed, such an order would undermine the stability of their current living circumstances and reignite the conflicts in this family.  For the same reasons, I fail to see how subjecting any of the children and the parties to a new protection hearing could be said to promote the best interests of the children or the administration of justice.

[39]      As acknowledged by the Children's Lawyer, the issue whether the children were in need of protection in September 2010 is now moot.  And, as I have said, the Society has raised no concerns about the care of the children, including C.D.B.'s care of M.X.B., since the conclusion of the proceedings before the trial judge.  Absent any live child protection issue in relation to any of the children, an appeal to this court in the name of child protection concerns cannot serve the best interests of the children or the interests of justice.

[40]      Relying on this court's decision in Schmidt v. Toronto-Dominion Bank (1995), 24 O.R. (3d) 1, the Society argues that the threshold for the granting of an order quashing an appeal is high and that the demonstration of even a minimal level of merit to an appeal will defeat a motion to quash where it is alleged that the proposed appeal lacks merit.  I agree.

[41]      However, a manifest lack of merit is only one basis upon which an appeal may properly be quashed: Schmidt.  Where the proposed appeal involves claimed child protection issues and where, as here, there is no evidence of any existing child protection concerns, the best interests of the affected children and the interests of justice and judicial economy may demand that the appeal be quashed.  In my view, this is such a case. [Emphasis added.]

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