COURT FILE NO.: 6/07

DATE: 20070213

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, HOWDEN AND HIMEL JJ.

B E T W E E N:

KAWARTHA-HALIBURTON CHILDREN’S AID SOCIETY

Applicant

(Respondent in Appeal)

• and -

C.P., J.C.1 (deceased), D.M.1, SR., and S.B.B.

Respondents

(Appellant in Appeal)

Kimberley J. Randell, for the Applicant

Christopher Spear, for the Respondent, C.P.

Nicole Y. Lawson, Children’s Lawyer, for the children D.M. and A.M.

HEARD at Toronto: February 13, 2007

himel J.: (Orally)

1C.P. appeals the order of Justice B. G. MacDougall, dated February 23, 2006, making her children, D.M. and A.M., Crown wards with access to Ms. C.P. and J.C, the youngest child a Crown ward without access for the purpose of adoption. D.M. and A.M. want access to J.C. but the Court refused to order sibling access. D.M. is now fifteen years old and A.M. is fourteen years old and they were represented by a lawyer appointed by the Office of the Children’s Lawyer. J.C. is now four years old and was not represented.

2The trial took place in the fall of 2005. The Children’s Aid Society called eleven witnesses and Ms. C.P. testified at trial. At the time of the trial, D.M. and A.M. were in a foster home with access to their mother. J.C. was in a different home. The mother exercised access from apprehension through to trial. At the time of apprehension, there were allegations of drug use, violence and criminal activities in the house, as well as mother moving the children several times between 2002 and 2004. The father of D.M. and A.M. took no part in the proceedings although duly served. The father of J.C. had been incarcerated, but later died. The B. was served but took no part in the proceedings.

3The trial judge held that the children were in need of protection, that there was a risk that they would likely suffer harm by a person having charge of them, or caused by their mother’s failure to care for them under s.37(2) of the Child & Services Family Act.

4In his Reasons, the judge relied on the evidence of police at the time of the apprehension including findings of needles, spoons, cocaine and marijuana in the apartment, that the man with whom the mother resided was a drug addict, the mother’s criminal record for drug offences, the finding of drugs in the infant’s meconium at birth suggesting in-utero exposure to drugs and the mother’s history of involvement with men who were allegedly violent and had criminal records. That, combined with the numerous moves of the children, led the Court to having significant concerns. The Court also considered the evidence of the mother’s behaviour during access when the children were in care.

5In summary, the Court found the evidence to be clear that the children were in need of protection and the Court then considered the best interests of the children and made them all Crown wards, having found no less restrictive alternatives existed.

6The Court found it to be in the best interests of the older children to have access to their mother at the discretion of the Society and that there be no access to J.C. To allow J.C. to be adopted, the Court denied sibling access on the undertaking by the Society to encourage access unless it prejudiced the adoptability of J.C.

7There was ample evidence upon which the trial judge could find all three children were in need of protection under s.37 of the Child & Family Services Act and upon which an Order for Crown wardship could be based.

8There were three additional areas of concern raised in argument by the appellant before us. The first was the failure of the trial judge to refer in his Reasons to the obligations on the Court under sections 37(4) and 57(5) of the Child & Family Services Act.

9Notwithstanding the lack of a specific reference to those sections in his Reasons, we are satisfied that it is implicit in his judgment that he was mindful of those provisions. There was ample evidence at trial concerning the status of the two older children, that the children had not been involved with their father who was Indian for many years, that the B. had been served but did not appear and participate in the proceedings, that the children had no contact with any native family members in the community, and that all three children at the time of trial were placed in desirable foster home placements where they were thriving.

10Furthermore, counsel for the appellant indicated that if this was the only issue, he would not seek to have the matter referred back for hearing on this issue.

11The second matter was that the appellant submitted that the evidence at trial failed to establish the adoptability of J.C. and that this failure undermined the determination that there should be no inter-sibling access. There is no statutory requirement for expert evidence on the question of adoptability. Case law supports the proposition that expert evidence should be tendered, except where it is obviously unnecessary, for example, in cases where the child in question is an infant. At trial, J.C. was three years old and developing well and had no apparent special needs. Accordingly, in our view, there was no basis for interfering with the trial judge’s finding on the question of adoptability.

12The third issue related to sibling access. On this issue, the trial judge said the following:

“Section 140(1) of the Child & Family Services Act places a mandatory duty on the Society to “make all reasonable efforts to secure adoption of a child who has been made a Crown ward and is in the Society’s care and custody.”

In view of the undertaking of the Society to make all reasonable efforts to have any adopting parent(s) of J.L.C. cooperate with access to D.M. and A.M., and in balancing the best interests of J.L.C. in being available for long-term placement or adoption against ordering “sibling access”, I find that having J.L.C. available for adoption takes precedence. Whereas a “sibling access” order could prevent an adoption, not ordering “sibling access” may not prevent actual “sibling access” from occurring.”

13These were determinations clearly open to the trial judge to make and there is no basis, in our view, on which we can interfere.

14Accordingly, for the reasons outlined above, the appeal is dismissed.

FERRIER J.

15I endorse the appeal book as follows: “For oral reasons delivered this day, appeal dismissed. No costs.”

HIMEL J.

FERRIER J.

HOWDEN J.

Date of Reasons for Judgment: February 13, 2007

Date of Release: February 19, 2007

COURT FILE NO.: 6/07

DATE: 20070213

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, HOWDEN AND HIMEL JJ.

B E T W E E N:

KAWARTHA-HALIBURTON CHILDREN’S AID SOCIETY

Applicant

(Respondent in Appeal)

• and -

C.P., J.C.1 (deceased), D.M.1, SR., and S.B.B.

Respondents

(Appellant in Appeal)