CITATION: Children’s Aid Society of Simcoe County v. J.D., 2010 ONSC 3542
DIVISIONAL COURT FILE NO.: 240/10
DATE: 20100617
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MCCOMBS, MOLLOY AND HAMBLY JJ.
BETWEEN:
THE CHILDREN’S AID SOCIETY OF SIMCOE COUNTY
Applicant
(Respondent in Appeal)
– and –
J.D.
Respondent
(Appellant)
David M. Winnitoy, for the Respondent in Appeal, The Children’s Aid Society of Simcoe County
Brian Bond, for the Appellant
J. Tremain and Lori Aylwin, for the Office of the Childen’s Lawyer
HEARD at Toronto: June 17, 2010
ORAL REASONS FOR JUDGMENT
molloy j. (ORALLY)
[1] The appellant Ms. J.D. appeals from the decision of Wood J. dated June 2, 2009, granting Crown wardship orders without access for Ms. J.D.’ two youngest children, now aged almost nine and seven.
[2] Ms. J.D. has five children. The oldest three have already been made Crown wards. The children’s biological father was noted in default and did not participate in these proceedings.
[3] The Children’s Aid Society (“the CAS”) has been involved with this family since 2000 due to issues of alcohol and drug abuse by the mother and violence between the parents. In 2004, the CAS commenced protection proceedings for all five children, pursuant to the Child and Family Services Act, R.S.O. 1990, c.C.11 (“CFSA”). Since that time there have been numerous CAS interventions and supervision orders. The mother’s persistent alcohol abuse has been at the root of most of these problems. There have also been incidents of physical assaults on the children, one of which resulted in the mother being charged criminally and convicted.
[4] The current proceedings were commenced on May 14, 2007, after the four daughters were apprehended from the appellant’s home. The daughters were found to be in need of protection on August 14, 2007. A supervision order was made but further problems developed. The children were removed from the home and placed in foster care with periods of supervised access. There were also ongoing problems with the mother’s conduct during that access. Ultimately the CAS sought an order making the youngest two children Crown wards without access for purposes of adoption.
[5] The matter came on for trial before Wood J. in May, 2009. By that time the two girls had been living with foster parents for two years. The trial proceeded for twelve days, at the end of which Wood J. reserved his decision. He delivered written reasons for judgment on June 2, 2009 making both girls wards of the Crown without access for purpose of adoption.
[6] The mother, Mrs. J.D. now appeals to this Court from the order of Wood J. Three issues are raised:
(i) whether the trial judge erred in refusing to allow the mother to tape record the trial proceedings;
(ii) whether the trial judge erred in refusing to permit the mother from testifying about her proposed use of a substance known as “antabuse” to prevent further consumption of alcohol by her;
(iii) whether the trial judge properly considered the best interests of the children in reaching his decision.
Issue #1: Tape Recording
[7] This is either an issue of law or an issue of procedural fairness and natural justice. Either way, the trial judge is required to be correct. We are of the view that the trial judge committed no error in how he handled this issue. The CFSA is very clear that hearings shall be held in private, unless the court orders otherwise. There is also a prohibition on identifying a child or parent in a proceeding before the CFSA.
[8] Wood J. was concerned that if the proceedings were to be recorded and then information were to be released either to the children or to another member of the public, the potential harm would far out-weigh any benefit the mother would gain from taping the proceedings in order to review them later in the day. Section 45(10) of the CFSA further reinforces the value placed on privacy in child protection proceedings. Only a party or a party’s counsel may order transcripts of a CFSA proceeding, unless there is a specific order of the court.
[9] Wood J. had the jurisdiction to decide whether the appellant mother could tape the proceedings. His decision was based on legitimate privacy concerns. He applied the correct legal test and undertook the requisite balancing of the childrens’ and parties’ privacy interests with those of the mother. There was a solid evidentiary foundation for his conclusion. In any event, his decision not to permit the mother to tape the proceedings did not alter the outcome of the trial in any way.
[10] Wood J. took the further step of advising the mother that if there was a particular portion of the transcript she required, and he was of the view that this was appropriate, he would order the transcript for her.
[11] This in fact occurred once during the trial. On that occasion, Wood J. ordered the transcript himself and provided it to the appellant.
[12] Accordingly, we find no merit to this ground of appeal.
Issue #2: Antabuse
[13] The appellant submits that the trial judge erred by not permitting her to testify about her intention to control her drinking in the future by taking a drug called antabuse. What the trial judge actually said was that the mother was not qualified as an expert to testify about the medical or chemical effects of this substance.
[14] The trial judge was correct in his application of the law. The appellant mother was not qualified to give evidence about her proposed treatment. She had the opportunity to bring an expert witness but did not do so. The trial judge applied the correct legal test in refusing to allow the appellant mother to give evidence on her proposed procedure.
[15] Accordingly, there is no merit to this ground of appeal.
Issue #3: Best Interests of the Children
[16] The appellant submits that the trial judge failed to properly consider and apply the test for the best interests of the children.
[17] The trial judge correctly defined the test; there is no issue about that. The question is whether he properly applied the test. That is a question of fact.
[18] The standard of review on findings of fact is strict. Appellate courts must defer to all findings of fact made at trial unless the Court is satisfied that the finding was the product of a “palpable and overriding” error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 10.
[19] The Ontario Court of Appeal in the context of a child protection case has stated, “We can interfere with the trial judge’s conclusion only if he made an error in principle, misapprehended the evidence or arrived at a clearly unreasonable result”: Children’s Aid Society of Toronto v. K.K. and J.M., 2006 2755 (ON CA), [2006] O.J. No. 384 (C.A.) at para. 11.
[20] It is not the function of this Court to re-try the case. Our role is to ensure that the trial judge committed no errors of law and that his findings of fact are supported by the evidence before him.
[21] In our view, Wood J. carefully considered the evidence and weighed the competing factors. He concluded that it was in the best interests of these two children that they have no further contact with their mother and that their best interests would be served if they were adopted.
[22] All parties agree that these two little girls are readily adoptable. There was ample evidence before Wood J. upon which he could reach that conclusion. Indeed, the evidence in support of his conclusion was overwhelming. There was no misapprehension of the evidence and no error in principle. The result reached was clearly reasonable.
[23] Accordingly, this appeal is dismissed.
[24] No order with respect to costs.
MOLLOY J.
MCCOMBS J.
HAMBLY J.
Date of Reasons for Judgment: June 17, 2010
Date of Release: July 12, 2010
CITATION: Children’s Aid Society of Simcoe County v. J.D., 2010 ONSC 3542
DIVISIONAL COURT FILE NO.: 240/10
DATE: 20100617
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MCCOMBS, MOLLOY AND HAMBLY JJ.
BETWEEN:
THE CHILDREN’S AID SOCIETY OF SIMCOE COUNTY
Applicant
(Respondent in Appeal)
– and –
J.D.
Respondent
(Appellant)
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: June 17, 2010
Date of Release: July 12, 2010