Court File and Parties
DIVISIONAL COURT FILE NO.: DC-15-000804
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Kawartha-Haliburton Children’s Aid Society Applicant/(Respondent in Appeal)
- AND -
JR, Respondent (Appellant)
BEFORE: Swinton, Pattillo and Kurke JJ.
COUNSEL: Christopher Spear, for the Respondent (Appellant)
Belinda Jesudasan, for the Applicant (Respondent on Appeal)
Jane Long, for the Office of the Children’s Lawyer
HEARD at Oshawa: March 1, 2016
ENDORSEMENT
1The appellant mother, JR, appeals the order of M.A.C. Scott J. dated March 30, 2015 making three of her children Crown wards. The two boys were made Crown wards without any order as to access, while the baby girl was made a Crown ward without access for purposes of adoption.
2The appellant raises three grounds of appeal:
The Children’s Aid Society (“CAS”) failed to prepare a proper Plan of Care in writing as required by s. 56 of the Child and Family Services Act, R.S.O. 1990, c. C.1 (“the Act”).
The trial judge erred in failing to consider the requirement in s. 55 of the Act as to the possibility of returning the children to the appellant with supervision by the CAS.
The trial judge erred in failing to make an order that the appellant have access to the three children.
The CAS did not fail to provide a proper Plan of Care
3The appellant takes issue with the CAS Plans of Care before the Court, dated February 2, 2014 for the boys and October 7, 2013 for the girl. She argues that these Plans of Care did not reflect the Plans presented in the evidence of the CAS witnesses during trial, and they were not updated in a written form. Moreover, the written Plans before the Court did not deal adequately with the future needs of the boys for remedial support and treatment.
4Section 56 of the Act requires the CAS to provide a Plan of Care in writing before a court makes an order under s. 57 and certain other sections of the Act. While it would have been preferable to have had an updated Plan of Care for the girl before the Court proceeding started, the failure to provide such a Plan does not justify appellate interference with the trial judge’s decision. If there was an objection to the existing CAS Plans of Care, it should have been raised before or during the trial.
5In any event, the CAS Plans of Care were described in detail through the CAS witnesses during this 29 day trial that lasted from May to December, 2014. In her lengthy and detailed reasons, the trial judge considered the benefits and deficits of the Plans of Care of the CAS, the appellant and others. I see no merit to this ground of appeal.
The trial judge did not err in failing to consider the requirement in s. 55
6The proceeding before the trial judge with respect to the girl was a protection application pursuant to s. 39 of the Act. The proceeding before the trial judge with respect to the two boys was a status review hearing.
7The children were apprehended from the appellant’s care on November 13, 2013. The boys had been found to be in need of protection, on consent, on October 11, 2012 in an order of McKelvey J., and they had been placed with the appellant subject to a supervision order.
8The hearing before McKelvey J. proceeded on the basis of a consent under s. 37(2)(l). The provisions of s. 55 applied in that hearing, which requires the Court to make inquiries about the efforts the CAS has made to assist the parent so that the child can remain with the parent.
9The task of the trial judge on the status review pursuant to s. 64 of the Act was to determine whether there was a continuing need for an order to provide protection for the boys and to determine the appropriate order under s. 57 of the Act.
10Following a lengthy trial, the trial judge carefully considered the legal questions she was required to determine. She found that each of the children was in need of protection under s. 37(2) of the Act and explained why she came to that conclusion, based on the evidence. These reasons included domestic violence between caregivers, the chaotic lifestyle of the appellant, criminal charges of the parents, neglect of the children, and the parents’ lack of follow through with services.
11The trial judge then determined whether Crown wardship was in the best interests of each of the children, as required by s. 57. In coming to her conclusion that Crown wardship with the purpose of adoption was in each child’s best interests, she considered in detail the proposed Plans of Care of the CAS, the appellant and others, as well as the evidence at trial from the witnesses, including the appellant and the boys’ therapist. She considered what the CAS had done to assist the appellant in the past and had some negative comments to make. However, she concluded that a supervision order would not work, in part because of what had happened in the past with respect to supervision orders and in part because of the appellant’s present relationship with the CAS. The trial judge very reasonably concluded that it was not in the best interests of the children to remain with the appellant, and she considered less serious options before making the Crown wardship order. There was abundant evidence to support her conclusions.
12The appellant has failed to identify any error of law or any palpable and overriding error of fact that would justify appellate intervention in respect to the order of Crown wardship for each child.
The trial judge did not err in failing to make an order for access to the three children
13Subsection 59(2.1) of the Act provides that a court shall not make an order of access to a Crown ward unless satisfied that the relationship between the person seeking access and the child is meaningful and beneficial to the child, and the ordered access will not impair the child’s future opportunities for adoption. The onus is on the person seeking access to show that these criteria have been met.
14The trial judge made clear findings that the appellant’s access, particularly to the boys, would not be beneficial. She also found that access would impair the children’s opportunities for adoption. The evidence, particularly the testimony of the boys’ therapist, supports her conclusions. I would not give effect to this ground of appeal.
Conclusion
15Accordingly, the appeal is dismissed.
Swinton J.
Pattillo J.
Kurke J.
Date: March 4, 2016