COURT FILE NO.: 160/04

DATE: 20040625

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, JENNINGS AND SWINTON JJ.

B E T W E E N:

THE CATHOLIC CHILDREN’S AID SOCIETY OF HAMILTON

Respondent on Appeal

• and -

D.M. (mother); J.M. (father)

Appellants on Appeal

George Johnson, for the Appellants, mother and father

Kathleen Baker, for the Respondent, The Catholic Children’s Aid Society of Hamilton (CCAS)

HEARD: June 25, 2004

O’DRISCOLL J.: (Orally)

1The back of the motion record of the moving party on the motion to admit further affidavit evidence has been endorsed as follows:

The child was made a Crown ward on June 5, 2003. On August 20, 2003, the trial judge made an order of “no access”. The hearing that day did not involve the hearing of further evidence. In all of these proceedings, both at trial and on appeal, the criterion at all times is the “paramount purpose”, that which is set out in s.1(1) of the Child Family Services Act (CFSA), “to promote the best interests, protection and well-being of the children”. Based on the decision of the Supreme Court of Canada in CCAS of Metro Toronto v. (C.)(M.), [1994] 2 S.C.R. 165, it is our view that the affidavit evidence subsequent to June 5, 2003 should be admitted. Moreover, under s.69(6) of the CFSA, “the Court may receive further evidence relating to events after the appealed decision”. For these reasons, the proposed affidavit is admitted into evidence. It is, so to speak, a log kept by the CCAS of the comings and goings and the dates and times of the appellants and the CCAS’s employees who are dealing with this child.

The Appeal

2In our view, there was ample evidence permitting the trial judge to come to the conclusion that we find in her Reasons of June 5, 2003:

54“As a result of my consideration of section 37(3)(11) and (12), I agree with the CCAS and find on balance that the child’s best interests require that she not be at physical risk to the degree that she is when she is in the care of her parents. Although I must of necessity indulge in some speculation, I do not believe that the CCAS would discover and be able to report a similar pattern of serious safety hazards if scrutinizing a typical family with a young child. The pattern of dangerous situations, which I find the parents allowed to occur in this case, unfortunately compels me to conclude on a balance of probabilities that it would not be in the best interests of this child to be in the care of these parents supervised or unsupervised.”

3In P.(D.) v. S.(C.), [1993] 4 S.C.R. 141, the Court said:

130“It is well established that a court of appeal must not intervene in the determinations and findings of fact made by a trial judge unless an error has been demonstrated. It is well-settled case law that a court of appeal will only intervene in a trial judge’s findings of fact if the judge has made a manifest error, ignored conclusive or relevant evidence, has misunderstood the evidence or drawn erroneous conclusions from it.”

4The trial judge followed the statutory pathway set out in s.37(3) of the CFSA and she found, and we agree, that there was sufficient evidence to demonstrate that Crown Wardship, without access, was the disposition most consistent with the child’s best interests.

5The trial judge properly considered that the real relevance of historical evidence is the extent to which it provides reliable backdrop against which to measure the extent to which a parent’s abilities and circumstances have changed. (See paragraph 10 (a) to (e) of the Respondent’s factum for a list of matters that the trial judge was allowed to look to, and did look to, with regard to the background of the mother).

6The trial judge properly, in our view, considered the principles of s.1(1) of the CFSA, including its remedial nature and its focus on the best interests, well-being and protection of the child as the paramount principle.

7The trial judge applied the appropriate test in considering the Status Review before the Court: that is, whether the child remains in need of protection and the disposition that is in the best interests of the child.

8The trial judge found, and we agree, that there was evidence upon which she could conclude that the CCAS was advancing a permanent and stable plan for the child. The CCAS submitted there is ample evidence upon which the learned trial judge could make the findings of fact at trial and we agree with that submission.

9The CCAS further submits that there was no palpable or manifest error and that, accordingly, there is no basis for an appellate court to interfere with the findings of fact. Again, we agree with that submission.

10The CCAS says that the learned trial judge appropriately weighed and considered the relevant evidence and factors in rendering the judgment; we agree with that submission.

11With regard to access, the CFSA states:

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 child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child’s future opportunities for a permanent and stable placement.

12We are of the view that anyone who seeks access under s.59(2) of the CFSA has the burden to satisfy the onus under that section of the statute.

13In her August 20, 2003 endorsement, the trial judge dealt with the question of access under s.59(2) of the CFSA in this way:

“The CCAS has a statutory obligation under s.140(1) of the CFSA to try and place for adoption every child who has been made a Crown ward.

There is no evidence in this case that the CCAS will be unable to fulfill its mandate. S. is a 2 ½ year old girl with some bonding with her natural parents. Dr. Morris, in a parenting capacity assessment, dated January 25, 2001, [sic] described her as a “gorgeous wonderful child who appeared a little developmentally advanced”.

Foster mother had reported to Dr. Morris that S. was a wonderful active child who played beautifully.

The child’s service worker, Sylvia Novak, testified to having no concerns because S. was meeting all her developmental milestones. I am satisfied based on this evidence that S. more likely than not will be adopted.

Because adoption is likely, access will interfere with that permanent and stable placement.

Moreover maintaining in the meantime a relationship between S. and her birth parents only prolongs the hardship for the parents and causes disruption to the child and makes necessary an application under s.59(3) of the CFSA.

There will be no access to S..”

14I have already read into these reasons what was said by the Supreme Court of Canada in P.(D.) v. S.(C.) supra, namely, that it is well-established that a Court of Appeal must not interfere in the determinations and the findings of fact made by a trial judge unless an error has been demonstrated. We see no error in what has been found by the trial judge in these proceedings with regard to access under s.59(2) of the CFSA.

15In summation, there was ample evidence upon which the trial judge was able to conclude that the appropriate disposition was Crown Wardship without access. On this record, there was no substantial wrong and no miscarriage of justice in the circumstances. The appeal will, therefore, be dismissed.

16I have endorsed the back of the appellant’s Appeal Book and Compendium, Part I of II, as follows: “This appeal is dismissed for the oral reasons (recorded). No order as to costs.”

O’DRISCOLL J.

JENNINGS J.

SWINTON J.

Date of Reasons for Judgment: June 25, 2004

Date of Release: July 13, 2004

COURT FILE NO.: 160/04

DATE: 20040625

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT