W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
DATE: 2005-09-27
DOCKET: C43352
COURT OF APPEAL FOR ONTARIO
CATZMAN, SHARPE and SIMMONS JJ.A.
B E T W E E N :
THE CHILDREN’S AID SOCIETY OF TORONTO
Katherine Kehoe and Kristina Reitmeier for the Children’s Aid Society of Toronto
Applicant/Appellant in Appeal
- and -
D.P.
Lorne Glass and Ida Bianchi for D.P.
Respondent/Respondent in Appeal
- and -
Katherine Kavassalis and Elizabeth McCarty for the Office of the Children’s Lawyer
R.L.
Respondent
Heard: September 21, 2005
On appeal from the judgment of Justice Susanne R. Goodman of the Superior Court of Justice dated March 14, 2005, allowing an appeal from the orders of Justice Mavin Wong of the Ontario Court of Justice dated February 18, 2004.
BY THE COURT:
[1] This appeal involves a natural parent’s claim to a right of access to two of her children who have been made Crown Wards.
[2] The appellant Children’s Aid Society of Toronto (“CAS”) has been involved with the family since shortly after the birth of the eldest child in 1998. The CAS’s concerns related to the cleanliness of the home and the ability of the parents to meet the special needs of one of the children. The children were apprehended and placed in temporary care in August 2001. The children were found to be in need of protection and a Society Wardship order was made. The children were returned to their parents in January 2002, but in November 2002 the children were once again apprehended because of the conditions in the home.
[3] In March 2003, the CAS sought orders of Crown Wardship with no access to facilitate adoption. After a seven-day trial in November and December 2003 in the Ontario Court of Justice, the trial judge found that Crown Wardship was in the children’s best interests, that the society’s plan to make the children Crown Wards for the purposes of adoption was reasonable, and that any delay in the disposition of the case would have an adverse effect on the children. On the issue of access, the trial judge made what she described as a “silent with respect to access” order, the intention of which appears to have been to permit the CAS to allow the parents to visit the children until such time as adoptive parents were found.
[4] The respondent mother appealed the “silent with respect to access” order to the Superior Court of Justice. She did not appeal the order of Crown Wardship nor did she challenge the trial judge’s essential findings of fact relating to the need for a Crown Wardship order. The children’s father did not appeal.
[5] The appeal judge rejected the mother’s contention that the trial judge had found that access would not impair the children’s opportunity for adoption. She interpreted the reasons of the trial judge as follows: “[T]he court intended that the judgment be silent as to access so that the children could be placed for adoption without further delay when an appropriate placement was found.” The appeal judge also interpreted the trial judge’s reasons as finding that the mother had failed to rebut the presumption under the Child and Family Services Act, R.S.O. 1990, c. C.11 [the “CFSA”], s. 59(2):
The court shall not make or vary an access order with respect to a Crown ward under section 58 (access) or section 65 (status review) unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child’s future opportunities for a permanent or stable placement.
[6] The appeal judge found that the CFSA does not permit a “silent with respect to access” order “as a means of circumventing the condition in clause 59(2)(b)”. The appeal judge concluded that, in view of the passage of time since the trial, the appropriate order was to remit the matter to the trial court for a rehearing on the question of access: “Although I am satisfied that the appropriate order in February, 2004 would have been an order denying the parents a right of access to the children, I do not have sufficient information before me to permit me to determine whether such an order remains in the best interests of the children, within the meaning of the CFSA.” The appeal judge ordered access to the mother pending the retrial.
[7] Before this court, all parties filed fresh evidence and consented to the admission of all the fresh evidence. We agree that the fresh evidence was properly admissible, particularly as the interests of young children are involved. The fresh evidence indicates that the mother has continued to enjoy access, that the CAS has not attempted to place the children for adoption in light of this appeal, and that the prospects for adoption remain as they were at the time of trial.
[8] In our view, the trial judge erred in law in remitting the matter to the trial court for a new trial. Having found, in our view correctly, that the appropriate order for the trial judge to have made was an order of no access, the appeal judge should have made that order rather than remit the matter for a rehearing. We agree with the submission of the CAS that any uncertainty as to the situation of the mother and the children arising from the passage of time from the date of the trial was an insufficient reason to further delay disposition of this matter by ordering a rehearing. The onus was clearly on the mother to satisfy the court that access should be granted pursuant to s. 59(2)(b). The mother had filed no fresh evidence on the appeal to the Superior Court and, in our view, there was no basis upon which the appeal judge could have ordered a rehearing.
[9] It is clear from the CFSA and from the jurisprudence that the overriding concern for the best interests of the child can only be satisfied if proceedings are conducted in a timely fashion and delay is avoided. The CAS cannot place a Crown Ward for adoption if an access order is outstanding: CFSA, s. 140(2). In view of the concurrent findings of the trial judge and the appeal judge that Crown Wardship was justified, and that the best interests of the child would be met through the CAS plan for adoption, it is imperative that these children not be left in what counsel for the Office of the Children’s Lawyer aptly described as “litigation limbo”. As this court stated in Children’s Aid Society of Peel v. W. (M.J.) (1995), 1995 593 (ON CA), 23 O.R. (3d) 174 at 200, “Time is important in the life of a young child.” These children have been the subject of CAS concern from the time of their birth. More than two years have passed since the CAS commenced proceedings to have them made Crown Wards so that they could be placed for adoption. Remitting the matter for yet another hearing, especially as the fresh evidence does not satisfy us that the mother has any hope of satisfying the onus under s. 59(2)(b), would be contrary to the best interests of these children and to the policy of the CSFA.
[10] Accordingly, we allow the appeal and amend the orders of the trial judge to provide that neither parent shall have a right of access.
[11] In making this order, we are not unmindful of the evidence that placing one of the two children for adoption will be a challenge in view of that child’s special needs. We would point out, however, that the CSFA, in ss. 58 and 64, permits the respondent mother to seek an access order or status review if the children have not been placed within six months. We would also point out that an order giving no right of access to the parents does not prevent the CAS, in its capacity as custodial parent of the Crown Wards, from permitting the parents to visit the children: see Family, Youth and Child Services of Muskoka v. R.S. (2004), 2004 4776 (ON SCDC), 11 R.F.L. (6th) 39 at para. 16 where the Divisional Court quoted with approval from the judgment in appeal of Perkins J.:
While the children are in foster care and even while they are placed for an adoption that has not been made final, the CAS as the custodial parent of the children retains the right to control who has access to the children and who does not, and on what terms. I leave it to the CAS to determine whether that power should be used in favour of any of the other children or any of the adult parties to this case.
[12] We agree with this analysis, but would characterize the right of the CAS as “the right to control who may visit the children” and when. In our view, that is the practical result the trial judge intended in this case. Where the court considers that the best interests of the child require that the parents have no contact with the child pending adoption, an order to that effect can be made. However, in the absence of a “no contact” order, the CAS retains the right described above, even where an order stipulates that a parent has no legally enforceable right of access.
[13] Accordingly, the appeal is allowed and the orders of the trial judge are amended to provide that neither parent shall have a right of access. None of the parties to this appeal sought costs and we order none.
“M.A. Catzman J.A.”
“Robert J. Sharpe J.A.”
“J.M. Simmons J.A.”