COURT FILE NO.: 02/080DV

DATE: 20030618

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT

R.S.O. 1990 as amended

AND IN THE MATTER OF THE CHILD

E.R. – D.O.B. […], 2000

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF HAMILTON-WENTWORTH

L. Laliberte, counsel on behalf of the Respondents

Applicant (in the Superior Court of Justice–Family Court) Respondents on Appeal

• and -

K. R. and C. B.

S. Garcea, counsel on behalf of the Appellant, K. R.

T. Mann, counsel on behalf of the Appellant, C. B.

Respondents (in the Superior Court of Justice–Family Court) Appellants

HEARD: May 28, 29 & 30, 2003 (at Hamilton)

SCIME J.

1This is a motion brought by K.R. for an Order to stay the operation of the Order of Mr. Justice Czutrin dated November 26^th, 2002, making the child E.R. a crown ward with no access, pending the disposition of the appeal.

2I have considered the detailed seven-page chronology of events, filed as Exhibit No. 1, spanning over three years, involving 72 court appearances in the Family Court.

3E.R. was born on […], 2000. C.B. and K.R. are the biological parents of E.R.

4C.B. had three older children, M., M.W. and K.B. and K.R. was not their father. In March 1998, C.B. was charged with the second-degree murder of her child M. and the aggravated assault of her child M.W. These charges still await trial.

5C.B.’s children M.W. and K.B. were apprehended by the Society and reside with the maternal grandparents. C.B. has access only to K.B. under the supervision of either grandparent.

6In April 2000, C.B. and K.R. had ongoing discussions with the Society for K.R. to have custody of their expected child. A home study of K.R.’s residence was conducted by the Society and approved. On May 11, 2000 C.B. consented in writing to K.R. having custody of E.R. and the Society was in agreement.

7On May 12, 2000, the child E.R. while in the custody of K.R., was apprehended by the Society. C.B. and K.R. were not residing together and were not in a relationship. On May 12, 2000 Genesee J., placed the child E.R. in the care of K.R. upon terms and adjourned for a case conference at a time already set for M.W. and K.B. At that time K.R. was unrepresented.

8There is a total absence of any evidence that at any time K.R. posed any risk to his child. It seems to me that the father at all material times was able to adequately care for his child. It was conceded that the mother, C.B. posed a risk and that any access to her child E.R. should be supervised.

9On May 16, 2000 the child E.R. was, for the second time, apprehended from his father by the Society. On May 23^rd, K.R. obtained counsel and an agreement was reached to place the child back with the father and the matter was adjourned so the Society could prepare an affidavit in support of returning the child to the father.

10On May 24, 2000, Czutrin J., made an Order returning the child E.R. to the care of his father, K.R., on the same terms as the May 12, 2000 Order in addition to terms including that the father attend an anger management course. The child was returned to the father on May 26, 2000.

11On July 14, 2000, the child, for the third time, was apprehended from his father by the Society. On July 19, 2000, Mazza J. granted a temporary Order that the child remain in the care of the Society with access at the discretion of the Society. The allegation by the Society, was an unsupervised access by E.R.’s mother. Czutrin J. in his reasons, November 26, 2001, at pages 19 and 20, stated that he could not conclude that the contact between the child and the mother did take place or was planned contrary to the terms of the Order of May 24, 2000.

12On September 5, 2000, Fleury J. made a temporary Order returning the child E.R. to his father under the terms of supervision imposed by Czutrin J. on May 24, 2000. The father refused to accept the return of his child under the terms of supervision imposed by the Court. In the afternoon of September 5, 2000, Fleury J., rescinded the Order and returned the child to the care of the Society with access at the discretion of the Society.

13Since the July 14^th apprehension the father visited his child once when the Society arranged a supervised visit for the father at the same time as C.B. The father had not seen the child since August 2, 2000.

14On September 12, 2000, Genesee J., ordered the consolidation of the E.R. case with the case of M.W. and K.B., without the father’s consent, and adjourned the case to the March 23, 2001 assignment court for a four-week trial.

15On March 19, 2001, Final Minutes of Settlement were filed regarding M.W. and K.B. who were to reside with their natural grandparents.

16On the March 23, 2001, trial list, the E.R. case was not reached; adjourned to April 24, 2001; further adjourned to June 15, 2001 for a one and one-half day motion with the trial to follow: then further adjourned to July 11, 2001.

17On July 11, 2001, Mazza J. heard the motion and on July 12, 2001 dismissed the father’s application against the Society.

18On August 24, 2001, Kent J. granted leave to the Society to amend its application to seek crown wardship.

19On September 7, 2001 Mazza J. dismissed the father’s motion in regard to the July 12, 2001 Order. The motion for summary judgment by the Society was to be heard September 17, later adjourned to October 15, 2001.

20On October 15, 2001, Czutrin J. heard the summary judgment motion for a final order without trial under Family Law Rule 16. The Society sought an oral amendment at the conclusion of submissions to include abandonment s. 37(2)(i) (CFSA), opposed by the father and granted for reasons set out at pages 21 to 23 of Reasons, November 26, 2001.

21On November 26, 2001, Czutrin J. found the child E.R. to be in need of protection, pages 34 – 35 and ordered the child to remain in care. The court heard submissions as to disposition and the extension of time and adjourned the hearing to await further material from the parties.

22The father brought a motion for access and on December 21, 2001, Czutrin J., granted the father supervised access at the visitation centre under conditions and requested submissions regarding a s. 54 assessment.

23On January 22, 2002, Czutrin J. ordered a s. 54 assessment. The father did not attend the assessment.

24On January 28, 2002, Dandie J., heard the father’s second application against the Society and adjourned sine die to allow the father the opportunity to renew the complaint procedure at the Society.

25On April 22, 2002, Czutrin J. delivered a 21-page Judgment and at paragraph 38 found there was no genuine issue for trial and at paragraph 40 ordered additional evidence concerning issues under s. 57(4) and s. 59 (CFSA).

26On August 22, 2002, Czutrin J. granted the father, on his motion, access to his child, separate from visits by the mother.

27On November 26, 2002, Czutrin J. rendered a 12-page Judgment making the child a crown ward with no access and dismissed the father’s application against the Society.

28On December 23, 2002 the mother and father filed a joint Notice of Appeal.

29The child is now 37 months of age. For the first two months the child was in the father’s care except for the apprehensions by the Society.

30Both before and after the birth of the child E.R., the Society was agreeable to the father having custody. The Orders by Genesee J., and Czutrin J., included condition (p): “The father shall obtain a custody order regarding the child, containing access times satisfactory to the Society.”.

31For reasons that are not clear on the record before this Court, the mother had access to K.B. under the supervision of a grandparent, yet in regard to E.R. it appears the Society would not permit the mother’s access to be supervised by the father. The father was not a risk; there was no relationship between the father and mother and there is nothing brought to this Court’s attention that indicated an inability to supervise any visits.

32The tragic turning point in this case was the third apprehension by the Society on July 14, 2000. If this apprehension related to a casual encounter with the mother beyond the father’s control and considering the conclusion of Czutrin J. as to that allegation, the Society’s apprehension in these circumstances raises the issue as to whether it was in the best interest, protection or well being of the child.

33The third apprehension resulted in the Order of Fleury J. It was this third apprehension within the two months E.R. was in K.R.’s custody that was the turning point, causing the custody endeavours by the father, approved by the Society, to get off track. The father now refused to accept return of the child on terms that the mother’s access be under Society supervision as he took the position he was as capable as the grandparent to supervise visits and he was also opposed to unannounced Society home attendances. His refusal was tragic in the circumstances. It appears that if the father had complied with the supervision orders he would have had his child in his care since birth. By his own choosing, from the time E.R. was two months up to 18 months, he only saw his child once, depriving himself and E.R. of father/child visits and opportunity to bond.

34Between January 4, 2002 and November 27, 2002, out of a possible 90 scheduled visits the father attended 42 visits and 10 non-attendances had reasons given.

35For reasons known only to the Society between January 4, 2002 to August 14, 2002 visits for the father were scheduled in conjunction with the mother. The mother and father were not a family unit and there was no relationship between them. The father, at all times, sought custody and in my view it was in the child’s best interest that he have the opportunity of separate visits with his father, without the mother. It was only after the father brought a motion that he was granted visits without the mother in August, 2002.

36Then between August 19, 2002 and November 27, 2002 out of a possible 13 visits, he attended seven visits and only missed one visit without a reason.

37There is no suggestion that the father’s access were at any time disruptive or accompanied by stress. Examining the visit reports which only go up to July 2002, there were numerous positive comments recorded; no emotional or physical harm; no increase in stress; a good relationship; gestures from which it is open to draw the inference of some degree of bonding and attachment.

38The father’s refusal to participate in the assessment ordered by Czutrin J. leaves the court without expert testimony deemed appropriate by the court. Accordingly there was no independent expert evidence as to any bonding or attachment between the father and child.

39I have considered that since the filing of the appeal there was a two-month delay in bringing this motion to stay and this is a factor I have considered in determining whether the reinstating of access after such a delay would be in the child’s best interest.

40I am also mindful that the child has been with the same foster parents for two and a half years. However, there is an absence of evidence from the foster parents as to what the circumstances of the child were both before and after the granting of the Order under appeal.

41The Supreme Court of Canada provided guidance in determining the child’s best interest under the Child and Family Services Act in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. (S.C.C., [1994] 2 S.C.R. 165). L’Heureux-Dubé J., speaking on behalf of the court held that the paramountcy of the best interests, protection and well-being of the child is clearly apparent throughout the Act.

42That section 37(3) recounts factors to be considered when attempting to determine the child’s best interest. These factors include concern for the child’s physical, mental and emotional needs, the importance of continuity in the child’s care, the child’s view as well as any other relevant circumstance.

43The underlying philosophy of the Child and Family Services Act of balancing the best interest of the child with the importance of keeping intact the family unit, without neglecting the protection of the child in need of protection, must be kept at the forefront of an analysis of the issues before the court.

44Madam Justice L’Heureux-Dubé held that the court has a duty to view all the circumstances relevant to what is in the best interest of a child including a consideration as to whether the evidence disclosed that the child would benefit from the tie of a child to his father. The best interest test requires the court to consider concerns arising from emotional harm and psychological bonding. The emotional well-being of a child is of the utmost importance. The furtherance of the child’s best interests must take priority over the desires and interests of the parents.

45I am mindful that it is of the utmost importance of reaching a speedy resolution of matters affecting children as the passage of time over an extended period, in this case in excess of three years, may unfortunately carry a heavy burden for all concerned.

46I turn now to the question whether or not this motion should succeed on its merits. I am of the view that it is not my function on this motion to determine the merits of the appeal. My paramount concern must be the best interest of the child. In determining the best interest of the child I have directed myself as to the principles set forth in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. supra.

47On the material before me I am satisfied as to the bona fides of the appeal.

48I will direct my analysis of this case applying the test as to what is in the best interest of the child. I do not intend to express any view as to the likelihood of a successful appeal on the basis of the limited evidentiary record before this court.

49I have not had the benefit of the affidavits and reports before the Family Court. There are in excess of 30 transcripts being prepared that the parties have deemed necessary for the appeal. The notice of appeal sets out 47 grounds of appeal. Czutrin J. gave lengthy, extremely well reasoned Judgments where numerous issues were identified, considered and dealt with. It seems to me that any question as to success on the grounds of appeal should be left to be decided by the appeal court without this court, on this motion, expressing any view on the likelihood of success.

50I am of the view in the particular circumstances of this case, that the issue of a stay should first be considered in regard to Crown Wardship and secondly the no access aspect of the Order.

51I have not been persuaded by the father on the evidentiary record before me that a stay of the Crown Wardship Order satisfies the best interest nor the protection and well-being of the child E.R.

52I accordingly dismiss the motion for a stay of the Order of Czutrin J. as to Crown Wardship.

53There is no motion to stay brought by the mother, therefore the order of no access will continue in regard to the mother, C.B..

54Crown Wardship having been ordered the Child and Family Services Act creates a presumption against access. Section 59(2) of the Child and Family Services Act specifies the unusual circumstances in which access can be ordered. (Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., supra). The burden of proof is upon the father who seeks access to a ward of the Crown.

55Section 59(2) provides:

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.

56K.R. is the biological father of the child E.R. The Society, prior to and following the birth of E.R. approved of K.R. having custody. The father has not been a risk at any time and appears to have been a loving father capable of caring for the child. There is an absence of any negative aspect to his visits that were contrary to the child’s best interest. There is a total absence of independent expert evidence that access with the biological father would not be in the best interest of E.R. There are positive aspects in the record of the father’s visits, which were never disruptive or accompanied by stress for the child. The relationship and tie of a biological father to his son is one capable of being extremely beneficial and meaningful to the child, however the evidence before this court on that issue is minimal.

57The three-year-old child has been in the care of the same foster family for two and one-half years. However, there is an absence of any evidence from the foster parents as to the particular circumstances of the child both before and after the Order under appeal. There is no evidence as to any possible placement with a family who wishes to adopt. There is an absence of independent evidence that any transitional access would impair the child’s future opportunities for placement. Temporary access pending disposition of the appeal, in my view, in the particular circumstances of this case, will not impair the child’s future opportunity for a permanent or stable placement.

58The father has satisfied the exception under s. 59(2)(b). However, there is little evidence before this court that meets the onus under s.59(2)(a) because of the limited evidentiary record and the history of events outlined in these reasons resulting in limited contact between the father and his child.

59K.R., up to this time, has not participated in any anger management counseling as ordered by the Family Court. Counsel for the father confirmed to this court that the father has now agreed to attend anger management counselling.

60This, in my view, is one of those cases that appears, realistically, to allow for a solution as referred to by Madam Justice L’Heureux-Dubé J. in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. supra, at para. 46, where temporary or transitional access could be beneficial to the child E.R.

61If I were not to stay the access Order and the appeal were allowed within a short time, the child’s life would again change. It seems to me that, at this time, some degree of temporary or transitional access would be the least disruptive and appropriate course of action in the particular circumstances and would be beneficial to the child E.R.

62I accordingly order:

1. A stay of the Order of Czutrin J. as to no access in regard to the father K.R., pending the disposition of the appeal;

2. That the father, K.R. shall have supervised access to his child, E.R., on a reasonable basis at the visitation centre;

3. That K.R. shall forthwith undergo anger management counseling; and

4. There shall be no order as to costs.

63In my view, it is of the utmost importance for the child that there be a disposition of the appeal at the earliest opportunity. I accordingly order that the preparation of all transcripts requested by counsel be expedited and that the appeal be expedited.

SCIME J.

Released: June 18, 2003

COURT FILE NO.: 02/080DV

DATE: 20030618

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT as amended

AND IN THE MATTER of the child E.R. – D.O.B. […], 2000