COURT FILE NO.: 247/06

DATE: 20070514

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Carnwath, Jennings and Lederman JJ.

B E T W E E N:

CHILDREN’S AID SOCIETY OF THE COUNTY OF SIMCOE Applicant (Respondent on Appeal)

• and –

M.J. Respondent (Appellant on Appeal)

• and -

M.S. Respondent (Party on Appeal)

Debora Lyons, for the Applicant (Respondent on Appeal) Ian R. Mang, for the Respondent (Appellant on Appeal) Manjusha Pawagi, for the Children’s Lawyer

HEARD at Toronto: May 14, 2007

JENNINGS J.: (Orally)

1At the outset of this appeal and with the consent of the C.A.S. and the Children’s Lawyer, (Ms. M.S. not appearing), the appellant was permitted to file fresh evidence of events occurring following the judgment under appeal.

2The appellant submits that the trial judge erred in the following two respects:

(a) She accepted and relied upon the findings of Dr. Benoit that V.’s emotional problems were predictive of what would be experienced by J. if he were returned to the appellant’s care; and

(b) She relied unduly upon the appellant’s economic circumstances, particularly in light of the fresh evidence indicating that the appellant has returned to full employment and has secured housing, the rent for which is geared to his income.

3We will deal sequentially with these submissions. In our opinion, the trial judge quite properly tested the conclusions at which Dr. Benoit arrived by carefully reviewing all of the evidence she heard in the 63 day trial concerning parenting abilities of the appellant and his partner in order to determine if the evidence supported those conclusions.

4It was open for the trial judge to consider the history of the interaction between the appellant and his partner with V. when she was in their care and to conclude that the inappropriate disciplinary measures to which V. was subjected, would in all probability be visited upon J. if he were returned to their care. There was ample evidence to support that conclusion.

5In addition, the trial judge considered amongst other matters the dysfunctional parenting relationship between Ms. E.K. and her own children and her estrangement from her siblings. It should be noted that the trial judge had the opportunity to observe Ms. E.K. for nine days when she was in the witness box in support of the trial judge’s conclusion that Ms. E.K.’s parenting skills were unlikely to improve. That being so, it was open to the trial judge to conclude that J. would suffer emotional harm if he were to be returned to the appellant’s home.

6With respect to the appellant’s finances, we observe the trial judge’s comments were made in the course of the mandated consideration by her of the circumstances set out in s.37(3) of the Child and Family Services Act, R.S.O. 1990 c.C.11. Circumstance number 8 directed the trial judge to compare the merits of the child care plan proposed by the Society with the merits of returning the child to the appellant. That necessitated to some extent a review of the financial ability of the appellant to provide for example, a secure, safe and uninterrupted residence. Although the appellant’s financial circumstances have perhaps improved since the judgment, there was evidence that his ability to provide such a home for J. was by no means certain.

7The trial judge was fully alive to the rule that poverty does not of itself preclude good parenting. Her passing references to recreational activities not available to J. in the appellant’s home were not, in our opinion, a significant factor in her conclusion, but rather a comment on the reality of the plan the appellant presented. We reject the submission that the trial judge applied middle class standards to the determination of what was in J.’s best interests.

8In conclusion, we find that the trial judge did all that was required of her under the statute. She weighed and considered the evidence and her findings of fact are supported by that evidence. We can find that she made no error of law. The appeal must therefore be dismissed. No costs are demanded and we make no order in that regard.

JENNINGS J.

CARNWATH J.

LEDERMAN J.

Date of Reasons for Judgment: May 14, 2007

Date of Release: May 16, 2007

COURT FILE NO.: 247/06

DATE: 20070514

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Carnwath, Jennings and Lederman JJ.