WARNING
THIS IS AN APPEAL UNDER THE
CHILD AND FAMILY SERVICES ACT
AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
- (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.
(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.
(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.
CITATION: Children's Aid Society of the Regional Municipality of Waterloo v. S.S., 2010 ONCA 630
DATE: 20100930
DOCKET: C52318
COURT OF APPEAL FOR ONTARIO
Blair, MacFarland and Watt JJ.A.
BETWEEN:
The Children’s Aid Society of the Regional Municipality of Waterloo
Applicant (Respondent on Appeal)
and
S. S.
Respondent (Appellant)
Brigitte Gratl, for the appellant
Kim Putman, for the respondent, CAS
Heard and released orally: September 2, 2010
On appeal from the order of Justice W. L. MacPherson of the Superior Court of Justice, dated April 29, 2010.
ENDORSEMENT
[1] The central ground of appeal raised is that the trial judge ought not to have accepted Dr. Benoit’s evidence in relation to S.S.’s ability to parent. It is argued that Dr. Benoit’s evidence in a subsequent trial involving S.S.’s other younger child contradicted the evidence she gave in the earlier trial, which is the subject of this appeal. This is, in part, the fresh evidence motion before us.
[2] Dr. Benoit did a parental capacity assessment of S.S. in relation to her older child L. She concluded for reasons set out in that report that S.S. did not have the capacity to parent L. although she was willing to do so.
[3] In a subsequent trial in March 2010, Dr. Benoit also gave evidence. She was very clear in her evidence that she did not re-interview S.S. nor did she ever interview the younger child. She was also clear that if all remained as it had been two and one-half years earlier, her opinion would remain the same. If things had changed, she was unable to comment on any changes. Counsel suggests this statement contradicts her earlier evidence when she opined that the damage sustained by S.S. was irreversible. We do not agree.
[4] As Dr. Benoit repeated on numerous occasions during her protracted cross-examination in March 2010, anything is possible. Things can and do change and she was unaware of any changes that may have occurred in the two and one-half years since she had conducted her assessment.
[5] As to the argument in relation to Dr. Benoit’s expertise, counsel at both trials accepted Dr. Benoit’s expertise as did the trial judge. Ms. Gratl suggests now that Dr. Benoit was not qualified to give opinion evidence on the effect of Cortisol on the brain in children exposed to highly stressful situations. She has produced no expert evidence that takes issue with Dr. Benoit’s evidence about the recent studies involving children exposed to situations of high stress. She cannot come to this court now and take issue with Dr. Benoit’s expertise to give this evidence without some expert evidence to back up her allegation, particularly, in a situation where Dr. Benoit’s expertise was acknowledged, accepted by all counsel present and no objection was taken to her evidence when it was given.
[6] The trial judge accepted Dr. Benoit’s evidence as she was entitled to do and there is no basis for us to interfere. It is insufficient to come to this court and simply attempt to file articles found on the internet which relate to the effect of Cortisol on the brain. There is no opinion from anyone qualified to give one that these articles are authoritative. Absent such evidence, they are of no evidentiary value and are inadmissible.
[7] In the result, the fresh evidence application is dismissed.
[8] In our view, this appeal is an attempt to simply retry this case. There is no doubt that this is a tragic case. S.S. has lost her child L. who has been made a Crown ward with no access. However, the trial judge carefully listened to the evidence over some 12 days. Her careful reasons for judgment are thorough and complete and she accepted Dr. Benoit’s evidence as she was entitled to do.
[9] Sadly, for S.S. she concluded that it was in the best interests of L. that she be made a Crown ward with no access. L. is in a potential adoptive home with her younger sibling. She is four years old and she is entitled to have some stability and finality in order to get on with her life.
[10] The appeal judge’s reasons are equally careful and considered and we can find no basis to interfere. The appeal is dismissed.
“R. A. Blair J.A.”
“J. MacFarland J.A.”
“David Watt J.A.”