CITATION: T v. Children and Family Services for York Region, 2017 ONSC 5987

DIVISIONAL COURT FILE NO.: 479/17

DATE: 20171011

WARNING

THIS IS AN APPEAL UNDER THE CHILD AND FAMILY SERVICES ACT AND IS SUBJECT TO S. 45(8) OF THE ACT:

45(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: A.T., Appellant v. Children and Family Services for York Region and H.S., Respondents in Appeal

BEFORE: Swinton, Perell and Gareau JJ.

COUNSEL: A.T., self-represented Anthony Snider and Nancy Guatto, for the Respondent Children and Family Services Jane Long, for the Office of the Children’s Lawyer

HEARD at Toronto: October 5, 2017

ENDORSEMENT

[1] The appellant seeks to overturn the judgment of Douglas J. dated August 1, 2017 in which he granted a motion for summary judgment brought by the respondent Children and Family Services for York Region (“CFS”) and dismissed the appellant’s motion for summary judgment in this child protection proceeding. The motions judge found that the appellant’s daughter X was in need of protection pursuant to s. 37(2)(g) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”) because of risk of emotional harm and granted an order of Crown wardship. The order also granted access by the appellant to X at the discretion of the CFS as to location, duration and need for supervision.

[2] The appellant submits that the motions judge made five serious and reviewable errors of fact and made two errors of law in applying ss. 37(2)(g) and 37(3) of the Act.

[3] The appellant submits that the motions judge disregarded relevant evidence, gave undue weight to certain evidence, and made unreasonable findings of fact. We disagree. The motions judge may have overlooked the appellant’s May 29, 2017 affidavit in the list he made of material before him, but he clearly had regard to it, as he made reference to the content of the affidavit and its exhibits and reports in his reasons.

[4] With respect to the other errors of fact alleged by the appellant, we see no basis for appellate intervention. The appellant has not demonstrated any misconception about the evidence, and the motions judge’s conclusions are amply supported by the evidence before him.

[5] In particular, the motions judge had ample evidence to support his finding that the child was in need of protection pursuant to s. 37(2)(g), which provides:

A child is in need of protection where

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

Subclause (f) lists the following kinds of emotional harm: serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development.

[6] The child is now over 9 years old, and she has been with her current foster family since January 2015. She was first apprehended by a Children’s Aid Society just after her birth. She has been apprehended five times in total, and she has been declared a child in need of protection in 2008, 2010, 2012 and 2014. She has been in care for a total of over four years.

[7] Each of the Society’s interventions occurred after the appellant suffered a mental health decompensation. The appellant acknowledges her mental health issues, but not the seriousness and persistence of them. Each time there has been a decompensation, the appellant had not implemented a viable safety plan to protect her two children.

[8] The motions judge concluded that the “predictable interruptions in care and consequent apprehensions by CFS represent a source of emotional harm to the child within the meanings of s. 37(2)(g) of the Act.” He reasonably relied on the family’s history and the evidence in the report of Dr. Henderson and the child’s therapist concerning the emotional harm caused by the interruptions in the child’s care precipitated by the appellant’s serious mental health decompensations and her inability to provide an appropriate safety plan. She has not provided an appropriate alternative caregiver for X in case of a further decompensation.

[9] The motions judge made no error of law in his application of s. 37(2)(g). The evidence supports his conclusion that there was a risk of serious emotional harm to the child. Indeed, the evidence established that the risk had materialized, and the child is suffering emotional harm.

[10] Moreover, the motions judge considered the factors in s. 37(3) that are to be considered in fashioning an order in the best interests of the child. The plan of the CFS is that X will be adopted by her foster parents. Her current wish, expressed since April 2016, is to be adopted by them. The motions judge took into consideration the child’s relationship with the appellant and her sibling, and he reasonably concluded that an order of Crown wardship coupled with access for the appellant would be the best plan to provide X with permanence and stability in her life and would be the least disruptive disposition from the child’s perspective.

[11] As the motions judge made no reviewable error of fact or law, there is no basis for appellate intervention. Accordingly, the appeal is dismissed.

Swinton J.

I agree _______________________________

Perell J.

I agree _______________________________

Gareau J.

Released: October 11, 2017