A.A. v. Children's Aid Society of Toronto, 2013 ONCA 462

WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45. (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.

45. (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.

46. (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.

Court of Appeal for Ontario

Citation: A.A. v. Children's Aid Society of Toronto, 2013 ONCA 462 Date: 2013-07-05 Docket: C57002

MacPherson, Cronk and Rouleau JJ.A.

Between:

A. A., Appellant

and

The Children’s Aid Society of Toronto, Respondent

Counsel: Jeffery Wilson, for the appellant Samantha Levenson, for the respondent

Heard: July 2, 2013

On appeal from the order of Justice Craig Perkins of the Superior Court of Justice, dated May 2, 2013.

Endorsement

1The appellant A.A. appeals the Order of Justice Craig Perkins of the Superior Court of Justice dated May 2, 2013, dismissing an appeal from the order of Spence J. of the Ontario Court of Justice dated October 9, 2012, making the child, H.A., a ward of the Crown so that he can be placed for adoption.

2The appellant’s principal argument is that the appeal judge erred in principle concerning the proper interpretation and application of s. 57(4) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), which provides in relevant part:

57(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him … immediately before intervention under this Part, the court shall, before making an order for … Crown wardship …, consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family… with the consent of the relative or other person. [Emphasis added.]

3The appellant contends that the trial judge did not properly consider a substantial amount of fresh evidence that established that there were many people in the appellant’s Somali community who were prepared and able to provide proper care for the appellant’s five-year-old son with special needs.

4We do not accept this submission. The appeal judge considered the fresh evidence in some detail. He concluded that, although the fresh evidence “consists of numerous affidavits of people purportedly willing to provide support for the mother in caring for the child or even to provide direct, primary care”, none of the deponents had actually presented a plan of care for the child. In our view, this was a fair summary of the fresh evidence before the appeal judge. It follows that the appeal judge did not err by concluding as he did:

This is not a sufficient basis for me to conclude the result at trial would or might have been different, either in respect of the finding or in respect of the disposition. Still less is it a basis for me to make an order for a different disposition today.

5We note that both parties filed new fresh evidence for this appeal hearing. This fresh evidence establishes that a member of the appellant’s community – indeed, the appellant’s second cousin, K.M. – has come forward with a plan to provide care to the child. For several months, the respondent has worked carefully and constructively with K.M. with a view to placing the child in her care, preferably on an adoption basis, but not excluding at this juncture the possibility of an order under s. 65 of the CFSA.

6In our view, this is a very positive development for all concerned, especially the child. We urge the appellant, respondent and K.M. to work together towards a resolution along these lines.

7The appeal is dismissed. The respondent properly does not seek costs.