COURT FILE NO.: 05-DV-1109
DATE: 2006-04-07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
B E T W E E N:
The Children’s Aid Society of Ottawa
Respondent
Marguerite Lewis, for the Respondent
- and -
C. C.
Appellant
Nathalie G. Fortier, for the Appellant mother, C.C.
Jack E. Pantalone, for the Child, M.C.
HEARD: April 5, 2006
CUNNINGHAM J. CUSINATO J. REILLY J.
JUDGMENT ON APPEAL
BY THE COURT
Nature of the Proceedings
[1] The appellant seeks to reverse the judgment of Justice Sheffield delivered on April 22, 2005, relative to M.C. a child in the temporary care of the Children’s Aid Society (“the Society”).
[2] In his judgment the learned trial judge granted Crown Wardship of the child, pursuant to the Provisions of the Child and Family Services Act (“the Act”) without provision for access to the appellant mother.
Overview
[3] At the time of trial, the subject child was 8 years of age and had been placed in the temporary care of the Society. This placement has prevailed from time to time over a period of several years beginning approximately in the year 2001.
[4] The mother’s history as revealed by the evidence was that she was under the care of a psychiatrist.
[5] It was not only the mother’s psychiatric problems but as well those of the child, that resulted in these placements. The mother at the time was unable to care for the child, and this is one of the reasons for the original placement with the Society.
[6] At trial there was extensive psychiatric evidence, not only on behalf of the Society from Dr. Diane Benoit, but as well from Dr. Esmond the treating psychiatrist for the child and from Dr. Martin Coté-Beck the treating psychiatrist for the appellant.
[7] From our examination, the evidence at trial was extensive and thoroughly reviewed in the reasons of the trial judge.
[8] Though there were minor variations in the evidence of the psychiatrists concerning the issue of access between the appellant mother and the child, and as to what was in the child’s best interest, all counsel acknowledged Dr. Benoit as a renowned expert in the area of child psychiatry.
[9] In her evidence Dr. Benoit reviewed the area of attached relationships, and spoke against continued access between the appellant and the child. The doctor testified that the child needs stability and permanency in his life; which would be possible with an adoptive placement but problematic if there were to be continued access between mother and child.
[10] This was her view in spite of the child’s expressed desire not to be adopted.
[11] Dr. Benoit testified she could not make a recommendation for access based on her interview and the factual information presented concerning the child. It was her conclusion that it would be grossly irresponsible to allow or encourage any form of access between mother and child in this case.
[12] It was her evidence from interviews with the child that he was highly intelligent; that upon the child being assured he was wanted and valued as a member of a family he could call his own he would quickly settle in to an adoptive relationship.
[13] Dr. Esmond, the psychiatrist who was treating the child concurred with this opinion. In her view, placement with a family who cared and who understood the child’s needs would be in the child’s best interest.
[14] She agreed with the statement of Dr. Benoit that this child needs stability and permanency in his life.
Issues
[15] Crown Wardship of the child was uncontested and in fact conceded at the opening of trial.
[16] Although temporary placement was proposed at trial by the appellant to permit access, it was rejected and this issue is not the subject of our consideration.
[17] The sole issue on this appeal concerns itself with paragraphs 84 and 85 of the trial judgment granting Crown Wardship without access with a view to adoption.
[18] In considering the issue of access the Court must reflect on S. 59 (2) of the Act. To paraphrase these considerations; the Court must answer these questions:
(a) Is such relationship beneficial and meaningful to the child?
(b) Will access impair the child’s future opportunities for a permanent and stable placement?
The Law
[19] As determined by the decision of the Supreme Court of Canada Van de Perre v. Edwards 2001 SCC 60, [2001] 2 S.C.R. 1014; the court may intervene where:
(a) there is material error.
(b) there is serious misapprehension of the evidence by the trial judge.
(c) there is error in law.
[20] The standard of review is as follows:
(1) On a question of law, correctness.
(2) Findings of fact, shall stand unless it is clear there is palpable and overriding error.
(3) On questions of mixed fact and law, the court on review is to apply a more stringent standard.
Disposition
[21] On appeal the court is not to overturn the trial judge simply because it might have arrived at a different conclusion.
[22] We are satisfied that on our review of the record the learned trial judge in a thoughtful and thorough review of the evidence considered all the relevant principles. In our view, there is no clear or palpable error in the findings and determination of the trial judge.
[23] We find no error in law as to the trial judge’s determination nor any serious misapprehension of the evidence.
[24] For these reasons the appeal is dismissed, and under the circumstances without costs.
Mr. Justice J.D. Cunningham
Mr. Justice A.E. Cusinato
Mr. Justice R.D. Reilly
Released: April 7, 2006
COURT FILE NO.: 05-DV-1109
DATE: 2006-04-06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
The Children’s Aid Society of Ottawa
Respondent
- and -
C. C.
Appellant
JUDGMENT ON APPEAL
CUNNINGHAM J.
CUSINATO J.
REILLY J.
Released: April 7, 2006