COURT FILE NO.: DC-06-348

DATE: 2007/03/23

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

IN THE MATTER OF THE CHILD & FAMILY SERVICES ACT,

R.S.O. 1990, c. C-11, as amended

AND IN THE MATTER OF THE CHILDREN:

WSC, born December 7, 1996 and ECC, born December 15, 1998

B E T W E E N:

The Children’s Aid Society of the Niagara Region

Appellant

• and -

J.C., R.R. and S.B. (deceased)

Respondents

K. Hughes, for the Appellant

K. Newell, for the Respondent mother

C. Bellinger for the Office of the Children’s Lawyer

HEARD: January 23, 2007

REASONS FOR JUDGMENT

Aitken J.

Nature of the Proceedings

1The Children’s Aid Society of the Niagara Region (“the Society”) appeals from the final order of Taliano J. dated May 1, 2006, in which he granted a mother, JC, and the mother’s cousin, DS (“the aunt”), access to her two children, W and E, who, with her consent, had been made Crown wards, and in which he granted the children access to each other.

Grounds of Appeal

2Numerous grounds of appeal are listed in the Notice of Appeal. They can be summarized as follows:

(a) The trial judge erred in law by placing the burden of proof on the Society to satisfy the court that it was in the children’s best interests that access be terminated, rather than placing it on the Respondents to rebut the presumption that there be no order for access pursuant to s. 59(2) of the Child and Family Services Act, R.S.O. 1990, c. C. 11 (“the Act”).

(b) The trial judge erred in law by failing to apply the proper test for access; namely, whether the Respondents had established, on a balance of probabilities, that access to the children was beneficial to the children, that it was meaningful to the children, that access would not impair the children’s future opportunities for a permanent and stable placement, and that access was in the best interests of the children.

Motion for Leave to Introduce Fresh Evidence

3At the commencement of the hearing, the Society sought to introduce fresh evidence in the form of an affidavit sworn January 9, 2007 by Nicole Ormel, the children’s protection worker. The purpose of the affidavit was to relate events concerning the children and access to the children that had occurred subsequent to trial. All counsel agreed that the affidavit met the test for fresh evidence. The evidence could not have been adduced at trial. It was highly relevant to the issues before the court and was potentially decisive as to the children’s best interests. The evidence was credible and uncontroverted. In child welfare cases, it is important for the court to have current and accurate information about the children.

4Under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the court hearing an appeal can receive further evidence by affidavit. In keeping with such authorities as Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 83 (SCC), [1994] 2 S.C.R. 165, and Children’s Aid Society of Peel v. W. (M.J.) (1995), 1995 593 (ON CA), 23 O.R. (3d) 174 (C.A.), the evidence was admitted on the appeal.

Standard of Review

5As set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, different standards of review apply depending on the nature of the issue. In regard to a pure question of law, the standard of review is correctness. For findings of fact, the standard of review is palpable and overriding error. Where the trial judge draws inferences from facts, the standard of review first is whether the trial judge made any palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inferences from those factual findings (the second part of the test is not simply whether the inferences could reasonably be drawn from the factual findings). In regard to a mixed question of law and fact, if it involves the trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error. If it involves the trial judge’s interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.

6An appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law; however, it is not entitled to overturn a trial judge’s decision in regard to access rights simply because it would have made a different decision or balanced the factors differently. (See Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 per L’Heureux-Dube J.; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at paras. 11 and 12 per Bastarache J.) Bastarache J. in Van de Perre, supra went on to state:

… the approach to appellate review requires an indication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 1999 BCCA 6, 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.

Background Facts

7W was born on December 7, 1996. E was born on December 15, 1998. JC is the children’s mother. RR is W’s father. SB is E’s father and is deceased. DS is JC’s second cousin. The children were apprehended from JC’s care on November 29, 2003 and have since remained in the Society’s continuous care and custody. On January 7, 2004, the children were found to be in need of protection and were made Society wards on consent for a period of six months, subject to access to JC. On July 12, 2004, Society wardship was continued, also on consent, for a further six months. On December 6, 2004, the Society commenced a Status Review Application requesting Crown wardship without access for the purpose of adoption. JC was the only Respondent who filed pleadings and presented a plan of care for the children. She proposed that the children be placed in her care and reside with her and her partner, JJP. The Society moved for summary judgment on September 8, 2005. At that time, an order was made on consent declaring the children Crown wards and directing a trial of an issue as to whether or not their mother should have access to the children. The trial occurred from March 13 to 17, 2006. Reasons for judgment were released on May 1, 2006.

8Initially the children were placed together in one foster home. Since April 2004, they have been in separate foster homes and visit each other once a week. The trial judge found that the first placement terminated in April 2004 for two reasons: (1) the foster mother was inexperienced and was unable to deal with W’s behaviour; and (2) the foster father became unexpectedly ill and the foster mother was unable to cope without his assistance. Other findings of fact made by the trial judge suggest that the first placement terminated in April 2005, not April 2004.

9At trial, both JC and the Children’s Lawyer took the position that the children should remain in their then current foster homes where they were doing well and where they wished to remain. They should not be adopted because JC wanted to have continued access to the children and the children did not want to be adopted. The Society took the position that the children were adoptable and that access by JC and DS should not be ordered because such access would prevent a permanent and stable placement with an adoptive family.

Reasons of the Trial Judge

(a) Children’s Status

10The trial judge reviewed evidence as to the children’s status when they first came into care and at the time of trial. He found that when E first came into care, she was very much behind in her development. She had significant dental hygiene issues. Her behaviours were inappropriate. She was not trusting and she was confused. She did not dress herself. She lacked good hygiene. By trial, she had shown considerable improvement. She was eating properly. Hygiene was not a problem. She referred to her foster parents as mommy and daddy.

11The trial judge found that when W first came into care, he was underweight, he refused to eat, he had a bad temper and he was behind at school. He was such a difficult child to manage that his first foster placement failed. W’s paediatrician diagnosed him as suffering from post-traumatic stress and perhaps a bi-polar disorder as well as an attachment disorder. He stated that W needed unconditional love, consistency and trust. W’s foster mother described him as a child who needed one-on-one time with his caregiver and, even though he was receiving that in her home, W’s behaviours in school were problematic. He had fits, he screamed, he engaged in name-calling. He required and was receiving counselling. Even though his behaviour had improved while he was at that foster home, at the time of the trial, he still had problems. W was happy in his foster home. He got along well with the other children in the home, particularly the foster mother’s eight-year old.

(b) Children’s Relationship with Mother and “Aunt”

12The trial judge made the following findings and observations about the children’s mother, JC, the children’s relationship with her, and JC’s access visits with the children:

No doubt at least part of the explanation for [W’s] ongoing problem is that visits with his mother have been sporadic and unreliable. Even telephone access with his mother often did not work … His mood changes both before and after visits with his mother and his aunt [DS] and at the present time he does not show excitement over the prospects of his mother’s visits although he does want to see her. He does not speak much about his aunt [DS] although he seems to be excited about seeing her. (para. 11)

[E] is usually quite happy after access visits with her biological family, particularly her brother W who she loves very much. She seems to be closer to her aunt [DS] than to her biological mother. (para. 12)

Sherry Matthews was in charge of the supervised access visits which the mother had at the Society’s offices. She testified as to unacceptable comments made by the mother during some of the visits, including telling the children that they would be coming home soon. I do not propose to review some of the other objected-to behaviour on the part of the mother because it is clear that the mother was heavily involved in mental health and substance abuse issues at the time of these visits. Although her behaviour was distasteful and some of her comments inappropriate, the children were not at risk of physical harm during these visits although emotional damage cannot be excluded as a consequence of some of the mother’s ill advised, although perhaps understandable, comments. However, the access visits with mother were in a very controlled and unnatural setting and it is not surprising that some negatives would emerge particularly given the mother’s substance abuse issues that were ongoing during much of the access. However, the mother readily recognized her shortcomings and agreed to the Crown wardship order as a consequence. However, since that time, she has made great strides at overcoming her substance abuse issues and I would therefore expect that her future behaviour towards the children would be vastly improved as a result, particularly if she were to receive the necessary guidance to amplify her understanding of her children’s needs.

Although it is true that their mother has not been there for these children, nonetheless both children love their mother and want to see her. Until their apprehension, she was their primary caregiver and they both continue to have a meaningful and beneficial relationship with their mother. If the mother’s future visits become reliable and her future behaviour unaffected by the consumption of destructive substances, which is more likely now that she is progressing successfully through rehabilitation, the children would benefit even more from their mother’s access. Similarly, the children benefit and would continue to benefit from contact with [DS] and other members of the mother’s extended family. All of these contacts would be terminated if access is terminated. In my view, ongoing access is both meaningful and beneficial.

13More will be said shortly as to whether the evidence before the court – both at trial and in the form of fresh evidence – could support these findings.

(c) Children’s Views and Preferences

14The trial judge found that neither child wanted to be moved from the foster home where he or she was residing at the time of trial. Neither child wanted to be adopted. The children loved their mother and wanted to continue to see her. Of particular importance to the children was continuing to see each other. There was evidence to support these findings.

(d) Long-term Placement Possibilities

15E’s foster mother testified that she and her husband would consider adopting E. W’s foster mother testified that W could stay in her home as a foster child until he turned 18 years of age.

16Heide Tebrake, an experienced social worker who for several years has worked as an adoption worker, provided expert evidence as to the adoptability of W and E. In her opinion, despite the children’s ages, maturity issues, and emotional and behavioural problems, both W and E were adoptable, though it would be easier to find a placement for E than for W. She was hopeful that the children could be adopted together and priority would be given to find a family that would take both children. The ease of finding a placement for E would assist in finding one for W. Leaving the children in their current foster homes would be an obstacle to their being reunited in one home.

17Ms. Tebrake testified that even though children may be opposed to adoption and to the termination of access by a parent, once they know a court has made the decision, often they accept it and move forward. W had indicated to her that, if he were to be adopted, he would want his adoptive family to be as nice as his foster family.

18Ms. Tebrake pointed out that long-term foster care is a significantly less stable and permanent arrangement for children than adoption. Most adoptions arranged through the Society are permanent; only a very small number break down. The children remain members of a family beyond age 18; in essence for the rest of their lives. By contrast, of 175 foster care cases reviewed, 45% of the children were placed without interruption, 18% had two placements and 36% had three or more placements. The children ceased to be supported by the foster family beyond age 18.

19Although not elaborated upon in his reasons for judgment, the trial judge heard lengthy evidence from Ms. Tebrake about the process undertaken by the Society to find an adoptive family once the child has been made a Crown ward, there is no access order preventing an adoption placement and the Society has determined that the child is adoptable. I will return to this shortly.

Legislation

20Sections 58 and 59 of the Child and Family Services Act deal with the issue of access to children who are the subject of protection orders under Part III. The material portion of those sections are:

58. ACCESS ORDER – (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

(2) WHO MAY APPLY – Where a child is in a society’s care and custody or supervision,

(a) the child;

(b) any other person, including, where the child is an Indian or a native person, a representative chosen by the child’s band or native community; or

(c) the society,

may apply to the court at any time for an order under subsection (1).

(7) NO APPLICATION WHERE CHILD PLACED FOR ADOPTION – No person or society shall make an application under subsection (2) where the child,

(a) is a Crown ward;

(b) has been placed in a person’s home by the society or by a Director for the purpose of adoption under Part VII (Adoption); and

(c) still resides in that person’s home.

59. ACCESS: WHERE CHILD REMOVED FROM PERSON IN CHARGE – …

(2) ACCESS: CROWN WARD – 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.

(3) TERMINATION OF ACCESS: CROWN WARD – The court shall terminate an access order with respect to a Crown ward if,

(a) the order is no longer in the best interests of the child; or

(b) the court is no longer satisfied that clauses (2)(a) and (b) apply with respect to that access.

65. COURT MAY VARY, ETC. – (1) Where an application for review of a child’s status is made under section 64, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 56(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date; or

(c) make a further order or orders under section 57. …

Issues

Did the trial judge err in law by ignoring the presumption against access in s. 59(2) of the Act?

21The Society submits that the trial judge erred by placing the burden of proof on the Society to establish on a balance of probabilities that the children’s mother and aunt should not have access to W and E. In this way, he ignored the presumption inherent in s. 59(2) of the Act that no access shall be ordered by the court in regard to a Crown ward unless the person seeking access has persuaded the court that access should be granted. I agree that the trial judge made an error in law in this respect.

22Section 59(2) of the Act creates a presumption against access where a child is a Crown ward. (See New Brunswick (Minister of Health and Community Services) v. L.M., 1998 800 (SCC), [1998] 2 S.C.R. 534, 41 R.F.L. (4th) 339; 1998 CarswellNat 1755 at para. 44; Children’s Aid Society of Niagara Region v. M.J., 2004 2667 (ON SC), [2004] O.J. No. 2872, 4 R.F.L. (6th) 245 at para. 44 (S.C.J.); Windsor-Essex Children’s Aid Society v. E.S., [2004] O.J. No. 5824 (O.C.J.) at para. 21; Children’s Aid Society of Ottawa v. D.K., 2002 47078 (ON SC), [2002] O.J. No. 2483 (S.C.J.)). Once there is an order for Crown wardship, the focus of the Child and Family Services Act shifts to establishing a permanent and stable placement – preferably through adoption. This is clear from the wording of s. 140(1) of the Act which requires the Society to make all reasonable efforts to secure a Crown ward’s adoption. Only Crown wards that are not the subject of an access order are eligible for adoption (see s. 140(2)(a)). Therefore, there is a presumption against court ordered access for a Crown ward in order to facilitate permanency planning through adoption (Children’s Aid Society of Ottawa v. D.K., supra, para. 24-25).

23The onus is on the persons seeking access to a Crown ward (in this case the mother and aunt of the children) to prove on a balance of probabilities that (1) the relationship between the person and the child is meaningful to the child, (2) the relationship between the person and the child is beneficial to the child, and (3) access will not impair the child’s future opportunities for a permanent or stable placement. These three factors must be proven on a balance of probabilities by the person seeking access before the court goes on to consider whether an access order would be in the best interests of the child. (See Children’s Aid Society of Owen Sound and County of Grey v. T.T., 2005 24909 (ON SC), [2005] O.J. No. 1875 (S.C.J.) at para. 20; Children’s Aid Society of Ottawa-Carleton v. T.C., 2002 46172 (ON SC), [2002] O.J. No. 3711 at para. 7).

24In this case, the trial judge ignored the presumption against access for Crown wards and, instead, started with the presumption that access for the mother and aunt should continue unless the Society established on a balance of probabilities that it was not meaningful or beneficial to the children or that access would impair the child’s future opportunities for a permanent or stable placement. Further, the trial judge accepted as a virtual presumption that access orders in place before children become Crown wards should not be terminated until the Society is in a position to offer a concrete alternative to the existing foster care arrangements with access, such as a prospective adoptive family. (See paras. 20, 24 of the trial judge’s reasons.) In the same vein, the trial judge presumed that, in circumstances where a child is seven years of age or older and must consent to an adoption, if at the time the child is made a Crown ward the child does not want to be adopted, then any previously existing access order should continue until the child does consent to adoption. (See paras. 20, 23.) There are no such presumptions explicitly stated or implied in the Act. In fact, the presumption in s. 59(2) is to the contrary; namely, that once a child is made a Crown ward, there will be no access order made.

Did the trial judge err in law by considering sibling access to be governed by the same principles as access to a parent or other person?

25Throughout his reasons, the trial judge lumped together access to the children’s mother and aunt with access to each other. He interpreted the Society’s position as being that there should be no access for the siblings in addition to no access for the children’s mother and aunt. (See para. 23 of his reasons.) This was not the position of the Society. The Society’s position at trial, and on the appeal, was that sibling access was in the best interests of both siblings and the Society would be continuing that access while it searched for an adoptive home for both children. If the children were not placed in the same adoptive home, the Society’s position was that efforts would be taken to ensure that both adoptive homes would maintain sibling contact for W and E. The trial judge seriously misapprehended the evidence as to the impact on W and E’s access to each other if no access was ordered for their mother and aunt and if they were placed for adoption.

26As well, the trial judge erred in law in assuming that sibling access and access by a birth parent or member of the birth parent’s family were treated the same under Parts III and VII of the Act. Different legal principles apply under the Act to sibling access than to access by a parent or other person. Under s. 58(1) and (2) of the Act, a child who is in the care of the Society may apply for access to a sibling, and this ability continues even after the child making the application has been placed for adoption. The prohibition against access applications under s. 58(7) does not apply to an application brought by a child who has been placed for adoption. As well, the prohibition in s. 160 of the Act to the effect that the court cannot order access to an adopted child by a birth parent or a member of a birth parent’s family, does not apply to prevent a sibling from seeking access to an adopted child (V. (A.) v. P. (M.A.) (Litigation Guardian of) (1995), 1995 875 (ON CA), 15 R.F.L. (4th) 330, 126 D.L.R. (4th) 673 (Ont. C.A.); P. (M.A.R.) v. V. (A.) (1998), 40 R.F.L. (4th) 411 (Ont. Gen. Div.)). Section 140(2) of the Act requires that any outstanding order of access to the child made under s. 58(1) be terminated before the child is placed for adoption. This does not mean that an order that the child have access to another person (namely another sibling) has to terminate before the child is placed for adoption.

27Additionally, an option available to, but not considered by, the trial judge was to have the order state that no order was being made as to access or to have the order silent as to access. This would have enabled the Society to allow inter-sibling access consistent with the best interests of the children, without infringing any court order or preventing the placement of the children for adoption. (See Children’s Aid Society of the City of Kingston and County of Frontenac v. L.K., [2004] O.J. No. 4947 (S.C.J.) at paras. 50-54.) In fact, it has been held by the Ontario Court of Appeal that even if there is an order giving no right of access to the siblings, that does not prevent the Society, in its capacity as custodial parents of Crown wards, from permitting the siblings visits with each other. (See Children’s Aid Society of Toronto v. D.P., 2005 34560 (ON CA), [2005] O.J. No. 4075 (C.A.) approving Family, Youth and Child Services of Muskoka v. R.S. (2004), 2004 4776 (ON SCDC), 11 R.F.L. (6th) 39 at para. 16 (Ont. S. C. Div. Ct.).) It is only if there is a court order stating that there will be no contact between the siblings that the Society would be legally obliged to ensure no contact.

28The trial judge found that continued contact between the children was in their best interests. His misapprehension of the evidence regarding the position being taken by the Society and the contact that could be maintained between the siblings, even if their mother and aunt had no access, amounted to an error in law and was a material factor in his making an order for access by the mother, aunt and siblings.

Did the trial judge err in law in his interpretation of the meaning of “beneficial” in s. 59(2)(a) of the Act?

29“Beneficial” has been held to mean “advantageous”. “Meaningful” has been held to mean “significant” (Children’s Aid Society of the Niagara Region v. M.J., supra, at para. 45). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother’s relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was “beneficial” within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children’s emotional health, were identified.

30In reviewing the evidence, the trial judge identified a number of ways in which the mother’s access to the children, and particularly W, had not been beneficial. He noted that she had mental health and drug related issues that prevented her from parenting effectively, and these existed up to the time the Crown wardship order was made in September 2005. Although she had access to the children, she had exercised it in a sporadic and unreliable manner that had adversely impacted on W in particular. Even telephone access between W and his mother did not work. W had mood changes both before and after visits with his mother and his aunt. He did not show excitement about his visits with his mother but did show excitement about his visits with his aunt, though he did not speak of her often. The trial judge found that, although E did not react negatively to the visits with her mother, she seemed closer to her aunt than her mother and showed the greatest interest in and attachment to her brother. The children’s mother displayed objectionable behaviour during some access visits, making inappropriate comments to the children. The trial judge found that emotional damage to the children was a possible consequence of some of her comments.

31The trial judge found that the children’s mother was making great strides overcoming her substance abuse issues. He assumed that “her future behaviour towards the children would be vastly improved”. The trial judge relied on this assumption to justify his finding at trial that the mother’s access to the children was beneficial. This amounted to an error in law. It was the relationship that existed between the mother and the children at the time of trial, and not a relationship hoped for in the future, that had to be considered beneficial under s. 59(2)(a) (Children’s Aid Society of the Niagara Region v. J. (M.), supra, para. 46).

32The fresh evidence admitted on appeal was of no assistance to either the mother or the aunt in establishing on a balance of probabilities that their relationship with the children was beneficial within the meaning of s. 59(1)(a). In regard to the mother, following the trial, the Society arranged weekly access visits with the children supervised at the Society’s offices. The mother attended faithfully during March, April, May and June. She visited the children on July 14 and W alone on July 28. She was not in contact with the Society and did not exercise access for the following three weeks. On August 24, the mother advised the Society that she had been in Mexico assisting a friend with moving. Access resumed on September 8, but the visit that day was very difficult for all concerned. The mother cried and hugged E while giving much less attention to W. The children were angry and confused that their mother had not seen them for over a month and then was talking about their being adopted and moving to Mexico.

33On September 11, the Society decided to schedule the mother’s access for once a month instead of once a week since the mother was not attending weekly on a consistent basis. Access visits were scheduled for October, November and December. The mother attended the October and December visits, but missed the November visit, without any advance warning.

34There were numerous difficulties with the mother’s access visits. Frequently, the mother treated the children differently: greeting E, but not W, with hugs and kisses; bringing more gifts for E than W; promising W certain gifts, but then not bringing them; and ignoring W while devoting all of her attention to E. The mother raised inappropriate topics with the children. She showed E her recent body piercings. She told the children that an acquaintance, Cora, would be adopting them and they would be moving to Mexico. She told the children about her new house, said that they would be coming home and encouraged them to make a wish that they would be coming home. This occurred after the order had been made for Crown wardship with the mother’s consent.

35The foster mother observed how access visits with his mother led to an increase in W’s negative behaviour and tantrums, both at home and at school. This seemed to result in part from the uncertainty as to whether his mother would attend the access visits. He became very upset and angry if she did not attend a scheduled visit, especially if he had no notice that she would not be there. On occasion, W called his mother a liar and complained that she did not attend visits and did not keep her promises. On occasion, he said that he wanted to live with his mother, though by this point he was a Crown ward and other permanent, stable arrangements needed to be made for him.

36E’s behaviour was problematic from May 2006 forward, both at home and at school. She was defiant with her foster parents and said that her mother had told her that she did not have to listen to them. She understood from her mother that, if she was “bad”, she would get to go home. At times, E stated that she hated her mother and never wanted to see her again because she was mean. At other times, she seemed content with her visits with her mother. On occasion, E expressed that she wanted to live with her mother or at least continue to have visits with her mother.

37In regard to the children’s aunt, access was arranged on April 21, May 26, and July 2. According to the children, their mother had been present at the May access visit, contrary to the understanding the Society had with the aunt. A planned August visit did not occur because the aunt was in a car accident. The next visit she requested was on December 3. A further visit occurred on December 30 and another was planned for January 27. Although there was evidence that the children had fun on some of the outings with their aunt, there was no other evidence as to how their relationship with their aunt was beneficial to them.

38The trial judge erred in law in his interpretation of the meaning of “beneficial” under s. 59(2)(a). That the children loved their mother and she loved them and that they enjoyed some of their visits with their mother did not equate with their relationship with their mother being beneficial in the sense of being significantly advantageous to their overall well-being. Similarly, the fact that the children enjoyed their visits with their aunt was insufficient to establish that the continuation of their relationship with their aunt was beneficial to them. It was incumbent on the trial judge to consider the mother’s relationship with each child and the aunt’s relationship with each child separately and to assess whether the relationship in question was significantly advantageous to the child. The trial judge did not undertake this exercise. The evidence at trial, combined with the fresh evidence, was insufficient to support the conclusion that access of either the children’s mother or the children’s aunt was beneficial to either child, considering the sporadic nature of the access, the confusion felt by the children, the potential for emotional harm identified by the trial judge and the unsettled nature of the children’s behaviour emanating from the access visits.

39The trial judge moved on to consider whether terminating access was in the children’s best interests and concluded that the majority of the factors listed in s. 37(3) of the Act were satisfied by not terminating access. It was an error in law for the judge to move to this consideration when the children’s mother and aunt had not yet established that their ongoing access was beneficial to the children. Furthermore, the trial judge concluded that “the physical, mental and emotional needs of the children favour not making the termination order, as do continuity …” without their being any evidence to support this conclusion.

Did the trial judge err in law in his interpretation and application of s. 59(2)(b) of the Act regarding a permanent or stable placement?

40The trial judge erred in law in placing the onus on the Society to establish that ordered access would impair the children’s future opportunities for a permanent or stable placement. The onus should have been placed on the mother and the aunt to establish that their access to the each child would not impair that child’s future opportunities for a permanent or stable placement.

41The trial judge misapprehended the evidence at trial regarding the relative permanency and stability of adoption placements in contrast to foster care placements. The uncontroverted evidence at trial was that an overwhelming percentage of adoption placements are both permanent and stable. On the other, there is no permanency with foster care placements in the sense of a child becoming a member of a family for the rest of his or her life, and the stability of foster care placements is much more fragile than adoption placements. Despite this, the trial judge found that ongoing access for the mother and aunt would not impair the children’s opportunities for a permanent and stable placement for three reasons: (1) he doubted that the children were adoptable and therefore he considered foster care the only realistic alternative for them; (2) he considered both of the children’s foster care placements stable; and (3) he concluded that access could continue right up to the point that a particular adoptive family had been chosen and the children had consented to adoption, should a prospective adoptive family or families be located. In my view, these reasons reflect a palpable and overriding error in his understanding of the evidence.

42The trial judge placed the onus on the Society to prove that the children were adoptable. In fact, the trial judge went further and expected the Society to be able to identify a prospective adoptive family before the mother’s and aunt’s access to the children should be discontinued. (See paras. 20, 24.) Where a Crown wardship order has already been made, there is no obligation on the Society to prove that the children are adoptable, let alone that there is a prospective adoptive family identified (Children’s Aid Society of Niagara Region v. D.P. and S.B. (No. 3) (2003), 2003 1932 (ON SC), 36 R.F.L. (5th) 265, 2003 CarswellOnt 574 (Ont. Fam.Ct.) at paras. 142-145). By virtue of s. 140(1)(a), the Society is obliged to make all reasonable efforts to secure the adoption of a Crown ward.

43In any event, the Society did adduce expert evidence that W and E were adoptable. That expert considered E eminently adoptable. She acknowledged that it would be more difficult to place W for adoption due to his age and more challenging behavioural problems; nevertheless, it was her opinion that it would be easier to place W for adoption in the same family as E as a result of the ease with which E could be placed for adoption. There was no conflicting evidence to the effect that the children were not adoptable.

44In regard to the permanency and stability of E’s foster care placement, the trial judge’s finding that E could stay on the long term with her then current foster family cannot be supported in light of the fresh evidence admitted on the appeal. E had to be moved to a new foster family following the trial for reasons having to do with one of the foster parent’s interactions with another child – not for any reasons relating to E. There is no evidence before the court that E’s new foster family is prepared to keep her in the long term or to adopt her. Consequently, there is no evidence before the court as to the permanency or stability of E’s current placement. In these circumstances, it cannot be concluded that the mother and aunt have established that their continued access to E, which prevents E being placed for adoption, will not impair E’s future opportunities for a permanent or stable placement.

45In regard to W, the evidence was clear and uncontroverted that W’s behaviour deteriorated significantly around the time of access visits making his already difficult behaviour even more difficult to manage, both at home and at school. The trial judge failed to consider this material evidence as to the impact continuing access would have on the stability of W’s placement over time should W remain in the care of his foster family. This was an important factor which the trial judge was obliged to consider.

46The trial judge heard detailed evidence about the process that is undertaken when a child is to be placed for adoption. That process starts with the discontinuation of access to the birth parent, a period of stabilization of the child in the foster home, the gradual introduction of the child to a prospective adoptive family and eventually (with a child of seven or more years of age) the consent of the child to the adoption. The only evidence before the court was that this is the process most likely to lead to a successful adoption placement. The child needs time to disconnect from his or her birth family and grieve that loss before the child is able to consider another alternative, namely adoption. There was no evidence before the trial judge to the effect that it was a viable option to continue the mother’s access to W and E while at the same time introducing them to prospective adoptive families and expecting them to consent to an adoption. In short, there was no evidence to support the trial judge’s finding that the continued access of the mother and aunt to W and E would not impair the possibility of their being adopted.

47For these reasons, the trial judge made an error in law in not placing the burden of proof on the children’s mother and aunt to prove that any ordered access would not impair the child’s future opportunities for a permanent or stable placement. As well, the trial judge misapprehended the evidence in a material way when considering the impact of access on each child’s future opportunities for a permanent or stable placement.

Conclusion

48Time is of the essence in child protection cases, especially where adoption is being considered. W and E were made Crown wards in September 2005. Since then, the Society has had an obligation to make all reasonable efforts to secure their adoption. The evidence is that the older the child, the more difficult it is to place the child for adoption. W is now ten and E eight. Returning this case for a retrial could result in a delay of several months, if not longer, impairing the Society’s ability to find a permanent and stable placement for both children. The paramount purpose of the Act is to promote the best interests, protection and well being of children. It is not in the best interests of W and E for their status to remain uncertain for any further period of time. (Children’s Aid Society of Toronto v. D.P., 2005 34560 (ON CA), [2005] O.J. No. 4075 (C.A.) at para. 8.)

49Consequently, I would allow the appeal, set aside the trial judge’s order of continued access for the mother, the aunt and the siblings, and order that neither the mother nor the aunt has a right of access to the children. I would have the order remain silent as to sibling access. This is the order that should have been made by the trial judge based on the evidence at trial and the fresh evidence now admitted. Such an order would allow the Society, while searching for an adoptive family or families for the children, to discontinue access for the children’s mother and aunt in a manner consistent with the children’s best interests while maintaining contact between the children. (Children’s Aid Society of Toronto v. D.P., supra, at paras. 10-12.) This would obviate the need for the Society to come back to court on a third occasion to terminate an access order if and when an adoptive family or families had been identified.

Aitken J.

Matlow J.

Boyko J.