WARNING
THIS IS AN APPEAL UNDER THE
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.
45(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: Catholic Children's Aid Society of Toronto v. N.A., 2014 ONCA 437
DATE: 20140529
DOCKET: C58313
MacPherson, Watt and Benotto JJ.A.
BETWEEN
Catholic Children’s Aid Society of Toronto
Applicant (Respondent)
and
N.A.
Respondent (Appellant)
Robin Leighton, for the appellant
Alec Duncan, for the respondent
Heard and released orally: May 22, 2014
On appeal from the judgment of Justice George Czutrin of the Superior Court of Justice, dated January 14, 2014, dismissing the appeal from the judgement of Justice Robert J. Spence of the Ontario Court of Justice, dated May 15, 2013.
ENDORSEMENT
[1] The appellant appeals the decision of the Senior Justice of The Family Branch which dismissed her appeal from the finding of the Ontario Court of Justice making the children J.V.S., aged seven, and N.N.S., aged six, Crown wards without access.
[2] The appellant submits that the children be returned to her, subject to supervision by the respondent. She also seeks access.
[3] The children have been in care since June 16, 2010. On July 8, 2011, they were found in need of protection. On October 3, 2012, the appellant’s visits with the children were reduced to one and a half hours per week, under supervision.
[4] On May 15, 2013, after a 14-day trial, the children were made Crown wards so that they could be placed for adoption.
[5] The trial judge concluded that the appellant’s plan of care was not in the best interests of the children and that the children could not be returned to her.
[6] There were findings that the children were at risk of harm if placed with the appellant. The trial judge cited multiple reasons for this conclusion, including the appellant’s mental health, her inability to care for the children, and the “toxic” relationship with the respondent.
[7] The appellant has had no visits with the children since the trial. On September 12, 2013, the Senior Justice of the Family Branch refused to reinstate the visits and went on to hear the appeal on an expedited basis on December 12, 2013.
[8] The appeal was dismissed and the decision of the trial judge was upheld.
[9] The appellant appeals the decision of the Superior Court which in turn dismissed a finding of the Ontario Court, under the Child and Family Services Act, R.S.O. 1990 c. C.11. This court has held that in these circumstances, the Court of Appeal “should only intervene if the Superior Court appeal judge erred in principle by failing to identify a material error in the decision below.” (See Children’s Aid Society of Toronto v. G.S, 2012 ONCA 783)
[10] We are satisfied that no such error exists. The appellant alleges an error of fact by the trial judge. The error of fact alleged was that the trial judge did not give sufficient weight to her mental health. This is not an error of fact. The trial judge considered in detail her mental illness and, in the context of the evidence as a whole, concluded that the children were at risk, if returned to her care or subject to an access order.
[11] Finally, we are of the view that the trial judge did not err in his interpretation of “beneficial and meaningful” in relation to the access.
[12] We agree with the decision of the Senior Justice. The statutory timelines have long since passed; the children must be placed for adoption or returned to the appellant. The appellant’s plan of care put the children at risk so they cannot be returned.
[13] For these reasons, the appeal is dismissed.
“J.C. MacPherson J.A.”
“David Watt J.A.”
“M.L. Benotto J.A.”