CITATION: K.R. v. Children’s Aid Society of London and Middlesex, 2023 ONSC 3798
DIVISIONAL COURT FILE NO.: DC-22-73-00
DATE: 20230711
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, LeMay and Nishikawa JJ.
BETWEEN:
K. R.
Appellant
– and –
The Children’s Aid Society of London and Middlesex, J.R., S.C., Madawaska Maliseet First Nation, R. L. and D. B., Kr. Rh. and the Office of the Children’s Lawyer
Respondents
B. Guslits, for the Appellant
C. Dyck, for the Children’s Aid Society of London and Middlesex
M. Bulbrook, for the Office of the Children’s Lawyer
K. Doucet, for Kr. Rh.
R. L. appearing on her own behalf
HEARD: June 22, 2023, by Videoconference
REASONS FOR DECISION
LeMay J:
Overview
[1] The Appellant K.R. is the mother of five children. This application concerns three of her children, who were aged six and seven at the time of the trial (collectively “the Children”). The Children’s Aid Society of London and Middlesex (“the Society”) had been working with K.R. and the Children since November of 2018. On March 19th, 2019, the Society obtained an order bringing the Children and N., the Appellant mother’s eldest child, into Society care. The Children have remained in care ever since.
[2] In November of 2022, after a seven-day trial, Tobin J. issued a decision in which he found that the Children were children in need of protection under the Child, Youth and Family Services Act, 2017 (“CYFSA”), S.O. 2017, c. 14, Sched. 1.
[3] Having concluded that the Children were in need of protection, the trial judge then determined that a final order was necessary as the Children had been in the care of the Society for forty-three months. He determined that this final Order should be an Order for long-term Society protection. Finally, he determined that the Children and Appellant mother should have supervised access at least twice a month, for a minimum of four hours.
[4] The Appellant mother now appeals this decision, alleging that the trial judge made errors in his assessment of the risks when he decided that the Children were in need of protection and in his disposition of the matter when he decided to place the Children in the care of the Society. The Appellant mother also alleges that the trial judge made errors in his determination of the appropriate level of access to grant to the Appellant mother and the other siblings of the Children. Finally, the Appellant mother alleges that the trial judge made errors in considering the evidence and in not considering a possible kinship plan from the Respondent R. L.
[5] For the reasons that follow, I would dismiss the appeal except on the issue of access, which I would refer back to the trial judge for further consideration in accordance with these reasons.
Background
a) The Family
[6] The Appellant mother is a member of a First Nation located in New Brunswick (“the First Nation”). Her mother and maternal grandparents were also members of the First Nation. There is a history of intergenerational trauma that was disclosed by the Appellant mother during her testimony. The Appellant mother was born in Ontario and was placed in care when she was approximately eight years old. She had limited contact with her biological parents after she was placed in care, except for a year when she lived with her father.
[7] The Appellant mother had her first child when she was 23. That child, N., was originally placed in the care of R.L and D.H. However, the application regarding N. was granted and N. is now living with the Appellant mother without objections from the Society. N. is currently sixteen years old.
[8] In addition, the Appellant mother gave birth to K. in April of 2021, during the course of this application. K. was subject to a voluntary service agreement (“VSA”) for a period of six months after his birth. The VSA was not renewed when it expired, and K. remains in the care of the Appellant mother.
[9] The father of the Children, J.R.is incarcerated and did not participate in the trial but supported the position of the Appellant mother, and did not participate in this appeal.
b) The History and Events Leading to the Children’s Apprehension
[10] Two of the Children, twins, were born in 2015, and the third was born in 2016. All three children are Indigenous and are members of the First Nation.
[11] Between December of 2013 and November of 2018, the Appellant mother was involved with the Society on seven occasions prior to the occasion giving rise to this Application.
[12] The Society’s most recent involvement with the Appellant mother and the Children began in November of 2018, when a teacher reported that N. had missed significant time from school. At that point, the Society became involved with the family again.
[13] In December of 2018, the Appellant mother was arrested and charged with possession of drugs for the purposes of trafficking. She was released on a promise to appear. The Society did not bring an Application to place the Children in care at that point. However, the Society continued to be involved with the family. In January of 2019, the Appellant mother was leaving the twins with friends for extended periods of time.
[14] On February 26th, 2019, the Appellant mother was evicted from the residence that she was subletting. The twins went to stay with the same friends that had been caring for them in January, while the other two children stayed at a motel with the Appellant mother. The Society had difficulties in contacting the Appellant mother in early March of 2019.
[15] On March 14th, 2019, the Society had contact with the Appellant mother. At that time, the Appellant mother confirmed that she was using drugs and that she had been transient since February 26th, 2019. The Appellant mother and the Society’s caseworker agreed to a plan whereby the Appellant mother would try to obtain a spot at an Indigenous led emergency shelter for her, N. and the Children the next day.
[16] On March 15th, 2019, the Appellant mother did not follow up with the Society’s caseworker. There was no independent confirmation that the Appellant mother’s plan to care for the Children was being carried out. The Society’s caseworker had contacted the shelter and determined that they did not have space that evening. As a result of these concerns, the Society took the children and N. into care on the evening of March 15th, 2019.
[17] Prior to the Application being brought, the First Nation was contacted by the Society. The First Nation indicated that they do not support any movement towards adoption for any of the children. They did not otherwise participate in the proceedings at trial or in this appeal.
c) The Events Subsequent to the Children Going Into Care
[18] On March 19th, 2019, Henderson J. granted a temporary without prejudice order placing the Children and N. in the care of the Society and granting the Appellant mother reasonable interim access. The Society was granted the discretion to determine the level, if any, of supervision during the access. That order was not varied prior to trial with respect to the Children.
[19] The interim Order was varied with respect to N. Ultimately, N. was placed in the care of R.L. as a kinship caregiver in October of 2020. N. has been living with the Appellant mother since April of 2021 with the consent of R.L. and without the benefit of a court order. The Society has not taken any action to remove N. from the Appellant mother’s care.
[20] By June of 2019, the Children were all placed in the same foster home.
[21] After the Children and N. were taken into care, the Appellant mother was in a relationship with a person who was a drug user. He is the biological father of the Appellant mother’s youngest child, K. K. was born in spring of 2021. As discussed above, the infant was the subject of a VSA between the Appellant mother and the Society. That VSA has expired, and K. remains in the care of his Appellant mother.
[22] After the Children were brought into the care of the Society, the Appellant mother experienced further periods of housing instability including a period when she was without a residence from January to July of 2022. In July of 2022, the Appellant mother secured a two-bedroom apartment where she lives with N. and K.
[23] The Appellant mother also had periods of active addiction from March of 2019 to August of 2020, when she found out she was pregnant with K. Prior to the trial, the Appellant mother did not engage in any relapse prevention programs other than attending a few meetings. The trial judge found that since finding out that she was pregnant with K. there was no evidence that the Appellant mother had used illegal drugs.
[24] During the time between the interim Order and the trial, access evolved somewhat. At the original hearing in March of 2019, Henderson J. ordered reasonable interim access to the Children and left the amount of access, and whether it was supervised, in the control of the Society. Access visits took place in 2019 under the supervision of the Society. However, the Appellant mother missed a number of those access visits for various reasons and there was a point where access visits were put on hold.
[25] During the COVID-19 pandemic, in-person access was cancelled for all families. In this case, only video access was provided for a period of time. In-person visits resumed in the summer of 2020 and, in September of 2020, the access visits were increased to weekly visits from bi-weekly visits.
[26] From the spring of 2021 through to the trial in September of 2022, access visits took place on a weekly basis for three hours a week. The Appellant mother attended this access consistently, and I am given to understand that the Children enjoyed the access.
[27] The Society’s application proceeded to trial in September and October of 2022. At trial, the Appellant mother argued that the children should be returned to her care. The Appellant mother argued that she had resolved her drug addiction and housing instability issues and that there were no longer substantial risks for the Children if they were left in her care. The Society disagreed and sought an order to have the children placed in extended Society care and remain in their current foster home.
[28] After an eight-day trial, the trial judge issued his decision finding the Children in need of protection and making a disposition order generally in accordance with the order sought by the Society. The trial judge also ordered that the Appellant mother, N. and K. could have supervised access with the Children at least twice a month, for at least four hours each time, leaving location, supervision and mode of access in the discretion of the Society.
[29] On the day that submissions were scheduled to be heard at trial, the Appellant mother’s counsel requested an adjournment so that a kinship assessment of R.L. could be undertaken in respect of the Children. The adjournment request was denied.
Fresh Evidence
[30] As is often the case, there is evidence of subsequent events that the parties seek to place before this Court for the hearing of this appeal. The general test for the admission of fresh evidence on an appeal is set out in R. v. Palmer 1979 8 (S.C.C.), [1980] 1 S.C.R. 759. However, the Supreme Court of Canada has held that the test for fresh evidence in a child protection case should be more relaxed: See Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.) 1994 83 (SCC), [1994] 2 S.C.R. 165.
[31] In this case, all parties ultimately agreed that the new evidence tendered by the other parties should be considered by the panel in addressing the appeal. I would accept that agreement, admit the fresh evidence and consider it in resolving the appeal. The evidence came in the form of four Affidavits, which I will now briefly summarize.
[32] First, the Appellant mother provided an Affidavit dated March 6th, 2023. It is focused primarily on problems that the Appellant mother had been having in obtaining the access visits that were ordered by the trial judge. This Affidavit identifies three problems: the Society and the foster mother are deferring to each other; the access visits that were scheduled are not taking place; and there is no plan or method for the access visits to increase or change.
[33] Second, the Society’s caseworker assigned to the family, Barry Verberne, provided an Affidavit outlining his involvement with the family since the trial judge’s decision was released. Mr. Verberne’s Affidavit also focuses on the access visits. He has identified that there have been concerns about the access visits that have been expressed to him by both the foster mother and by the therapist who has been involved in counselling the Children. The concerns focus around dysregulation when the Children return from those access visits both at home and at school. As a result, Mr. Verberne stated that the idea of moving access visits to the Appellant mother’s home had been paused and that this issue was being explored through ADR. Finally, Mr. Verberne confirmed that the Appellant mother had been involved in further sessions with an addiction services agency.
[34] Third, the Society provided the Affidavit of Robyn Allison, who is a resource worker with the society. Ms. Allison was assigned to conduct a kinship assessment on R.L. after the trial was completed. The kinship assessment was cancelled when R.L advised Ms. Allison in December of 2022 that she did not wish to continue with it.
[35] Finally, Kr. Rh., the foster parent, provided an Affidavit sworn very shortly before the hearing. This Affidavit outlines recently discovered information about her own Indigenous heritage and her family’s history.
Standard of Review
[36] This is an appeal. As a result, the standards of review as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On a question of law, the standard of review is correctness. On a question of fact, the standard of review is palpable and overriding error. For questions of mixed fact and law, the standard varies. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
[37] The parties agree on the standard of review. There are a couple of issues where they have a dispute as to whether the issue is a question of law or a question of fact, and I will address those issues as I come to them.
Issues
[38] This appeal raises the following issues:
a) Did the trial judge err in law in making a finding under s. 74(2)(b)(i) and (ii) of the CYFSA when the risk identified had been addressed by the Appellant mother prior to the hearing?
b) Did the trial judge err in his disposition of the matter?
c) Did the trial judge err in his analysis of the appropriate level of access to grant to the Appellant mother and the children who were not in care? Did the trial judge provide sufficient reasons for his decision?
d) Did the trial judge err in determining who the Children viewed as their “psychological parent” without any expert evidence?
e) Did the trial judge err in declining to give substantive consideration to the potential kinship plan of R.L.?
[39] I will deal with each issue in turn.
Issue #1- Was the Finding Under s. 74(2)(b)(i) and (ii) in Error?
[40] The Appellant mother’s key argument is that the trial judge failed to consider the fact that the risks had resolved themselves by the time the trial took place. The Appellant mother argued that the trial judge erred in law by considering the Appellant mother’s history of drug abuse and transiency because there was no evidence that the Appellant mother was using drugs at the time of the trial and because she had found permanent accommodations three months before the trial. In support of this position, the Appellant mother relied on the decision in N.V.C. v. Catholic Children’s Aid Society of Toronto 2017 ONSC 796.
[41] I disagree for two reasons. First, the general approach in the case-law is laid out in detail in Children’s Aid Society of Toronto v. R.M. 2019 ONSC 2251. In that decision, Horkins J. rejected the rigidity associated with requiring a finding that the children were at risk of harm on the day of the hearing. She stated (at paras. 92 to 94):
[92] In C.A.S. of London and Middlesex v. T.Y., 2017 ONSC 3460, at para. 94, the court explained why the rigid approach is problematic, adopting Thibideau J.’s comments in Children's Aid Society of Brant v. J.A.T., 2005 ONCJ 302, at para 24:
The more rigid approach reduces the hearing process to a judicial game with formal and rigid rules regardless of outcome and policy considerations. The flexible approach focuses on the best outcome for the child within an evidentiary framework that fosters use of evidence for an appropriate outcome.
[93] The type of risk that can lead to a child protection order is set out in s. 74(2) of the CYFSA. It was also defined in the predecessor Act. It is obvious from the legislation that “risk” can be caused by a variety of different circumstances and conduct.
[94] In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.
[42] I accept that the risks will change over time, and that the judge hearing the case must consider all of the facts to determine whether the risk exists and/or may return, even if it is under control or resolved at the time of the hearing.
[43] Second, in any event, a close reading of N.V.C. suggests that the judge in that case adopted an approach that was not that different from the one adopted by Horkins J. in R.M. I acknowledge that N.V.C. states (at para. 57) that the risk of harm must be determined at the time of the hearing. However, N.V.C. goes on to state (at para. 64):
[64] It is obvious that for the state to intervene, apprehend a child, and place her in foster care on a temporary basis, there must be a finding that the child is in need of protection at the time of the intervention. As well, in a hearing to finally determine the issue of present risk of future physical harm, it is equally obvious that a finding must be based upon all of the relevant evidence at the date of the hearing.
[44] The N.V.C. decision, like R.M., envisions a review of all the evidence at the time of the hearing. In my view, that encompasses both the facts as they exist on the date of the hearing and the history of the participants in the trial. By considering the entirety of this evidence, a trial judge can arrive at a complete and accurate risk assessment.
[45] Having concluded that the trial judge did not err in his approach to the evidence, the remaining concerns raised by the Appellant mother can be very briefly addressed as they are all factual issues that require the Appellant mother to demonstrate a palpable and overriding error before this Court would intervene.
[46] The most significant of these is the Appellant mother’s claim that the trial judge did not properly consider and apply An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, S.C. 2019, c. 24 (the “Federal Act”). I disagree. The trial judge’s reasons on both the question of whether the Children were in need of protection and his disposition analysis reference the Federal Act and apply it to the facts. The trial judge properly instructed himself as to the requirements of the Federal Act (see, inter alia, para. 17 of his reasons). Finally, the trial judge also criticized the Society (at para. 106) for its delay in trying to obtain help from the First Nation and other Indigenous organizations. All of these factors demonstrate that the trial judge was alive to the requirements of the Federal Act and to the importance of the Children’s Indigenous heritage. He was entitled to make findings of fact and apply those facts to the law, which he did. There is no reversible error.
[47] The Appellant mother’s second concern is that the trial judge gave inadequate reasons. When the submissions on this point are closely considered, it is clear that the complaint of inadequate reasons is mostly a disagreement with the trial judge’s weighing of the risks in this case. In my view, the trial judge’s reasons clearly and cogently explain the risks that existed in this case as well as the weight that the trial judge gave to those risks. Given the standard of review that applies to this Court’s consideration of the trial judge’s decision, there is no basis to interfere with the trial judge’s decision: See Van De Perre v. Edwards 2001 SCC 60, [2001] 2 S.C.R. 1014 at para. 11.
[48] Finally, the Appellant mother alleges that the trial judge improperly weighed the evidence of the children’s attachment and of their behavioural dysregulation because he did not have any expert evidence on the subject. The Appellant mother has raised similar concerns as a specific issue (Issue #4) and I will address those concerns later in these reasons.
Issue #2- Did the Trial Judge Err in His Disposition of the Matter?
[49] The Applicant challenges the trial judge’s disposition of the matter on the following grounds:
a. The Appellant mother’s plan was not given appropriate weight and consideration under both the CYFSA and the Federal Act, especially since she has two children in her care.
b. The trial judge did not give appropriate weight to protecting the sibling relationship under both Acts.
c. The trial judge did not place sufficient weight on the fact that the Children are First Nations children, and that the Appellant mother’s plan was the only plan that ensured a connection to their culture.
d. The foster parent’s plan was improperly weighed against the Appellant mother’s plan before deciding that the Children should be placed in the Society’s care.
[50] I will begin with the last issue. Had the trial judge weighed the foster parent’s plan against the Appellant mother’s plan before deciding to place the Children in the Society’s care, that might very well have attracted appellate intervention and might have been reviewed on a standard of correctness. However, he did not. In this case, the trial judge carefully reviewed the positives and negatives of the Appellant mother’s plan against the Society’s plan. There was no error in his approach.
[51] As a result, to attract appellate intervention on his disposition conclusions, the trial judge would have had to make a palpable and overriding error. I see no such error on any of the other three points raised by the Appellant mother.
[52] In terms of the Appellant mother’s first argument, I have already set out at paragraph 46 my conclusions in respect of the trial judge’s consideration of the Federal Act and the CYFSA. I would simply add that the trial judge carefully set out the contents of the Appellant mother’s plan as well as the positive features and concerns of that plan. One of the concerns identified by the trial judge (para. 184) was the fact that placing the Children in her care would require a further move, which would be disruptive to the Children. I would also observe that each child is different and will have different needs.
[53] This brings me to the sibling relationship. The trial judge specifically turned his mind to the provisions requiring the Court to consider the possibility of a child being placed with or near children who have the same parent (para 119). The trial judge was alive to the fact that the Children had two other siblings whose relationship with the Children needed to be maintained.
[54] Finally, there is the claim that the trial judge did not place sufficient weight on the fact that the Children were First Nations children and that only the Appellant mother’s plan would ensure their connection to their First Nations culture. I disagree. In evaluating the plans, the trial judge found that the Appellant mother’s plan would better establish and preserve the Children’s cultural identity (para. 185(b)). In addition, although there are problems with the trial judge’s access determinations, discussed below, he correctly found that maintaining access in this case would foster the Children’s connection to their Indigenous identity.
[55] The trial judge properly instructed himself as to the relevant law and carefully weighed the evidence. The trial judge’s weighing of the evidence is owed deference. As a result, I see no reason for appellate intervention on the issue of the trial judge’s decision that the Children should be placed in extended Society care.
Issue #3- Did the Trial Judge Err in his Decision on Access?
[56] Prior to the trial, access was taking place consistently on a weekly basis for three hours a week. The Appellant mother was consistently attending the access and the children were enjoying it. The trial judge reduced the minimum access to the Appellant mother to twice a month, for a minimum of four hours. The access was to be supervised in the discretion of the Society. The trial judge did so despite a contrary recommendation by the Children’s Lawyer.
[57] The trial judge’s reasons on access are relatively brief. The trial judge identified the decision in Kawartha-Haliburton Children’s Aid Society v. M.W. 2019 ONCA 316, (2019) 432 D.L.R. (4th) 497 as confirming that, even after being placed in Society care, a child can still have a meaning and beneficial relationship with a parent and that preserving that relationship justifies access. The trial judge also stated that the Federal Act needed to be taken into account.
[58] However, he did not grapple with either the significance of the Federal Act’s provisions with respect to access or the circumstances that already existed on the ground at the time of trial. In failing to address either of these issues, the trial judge erred in law and made a palpable and overriding error in respect of the access that he ordered.
[59] The concerns with the trial judge’s reasons start with section 17 of the Federal Act, which provides as follows
17 In the context of providing child and family services in relation to an Indigenous child, if the child is not placed with a member of his or her family in accordance with paragraph 16(1)(a) or (b), to the extent that doing so is consistent with the best interests of the child, the child’s attachment and emotional ties to each such member of his or her family are to be promoted.
[60] This provision emphasises that the ties to the child’s family members are to be promoted. It is a requirement that must be fulfilled in deciding access subject to the best interests of these Children.
[61] While the trial judge considered the Federal Act in detail in his analysis of the other issues, he did not consider it sufficiently in making his decision to reduce access from weekly to bi-monthly. This failure is magnified by the fact that the level of access that existed at trial was being successfully maintained. In these circumstances, if the trial judge was going to reduce the access, it was incumbent on him to both ground the decision on the facts as he found them and then provide an adequate explanation as to why the access should be reduced despite the important role of promoting ties to family where Indigenous children are not placed with a family member, as set in the Federal Act. I agree with the Children’s Lawyer that the Federal Act must be integral to determining the level of access in this case.
[62] The Respondents note that the fresh evidence suggests that the current reduced access is not going smoothly. As noted by the Children’s Lawyer, change may mean that issues arise and this does not necessarily result in the need for or justification of reduced access. Promoting attachment and emotional ties to the Children’s Indigenous mother and siblings may need a period of transition. Further, the Appellant mother’s fresh evidence suggests that there are steps that the Society and the foster mother could be taking to assist with the process. .
[63] Having regard for the imperatives under the Federal Act and the evidence before him about the current access, I reluctantly conclude that the trial judge erred in reducing the access that was already ongoing.
[64] The trial judge erred in law in failing to give full effect to the provisions of the Federal Act on the subject of access. Based on the facts as the trial judge found them, the legislative imperative of s.17 of the Federal Act and bearing in mind the fresh evidence as it has been presented to us, there does not appear to be basis to reduce the access below what existed at the time of trial.
[65] This court may substitute its own order as to access. However, I would return the matter to the trial judge to determine the issue based upon these reasons for decision and with not only the fresh evidence that was before this court but also any additional fresh evidence that may become available.
Issue #4- Did the Trial Judge Err in Determining the “Psychological Parent”?
[66] The Appellant mother takes issue with the trial judge’s conclusion that the Children viewed the foster mother as their “psychological parent”. The Appellant mother argues that there was no expert evidence on this issue and, therefore, the trial judge could not make a finding in respect of it. A related argument was advanced in respect of issue #1, where the Appellant mother argued that the dysregulation experienced by the Children was not supported by expert evidence. I am not persuaded by these arguments for similar reasons, so it is convenient to deal with them together.
[67] Counsel for the Society rightly points out that expert evidence is not required to make determinations of both whether a child is attached to a parent or whether fostering that attachment is in the best interests of the child. For example, in Valoris for Children and Adults of Prescott Russell v. S.M.N. et. al. 2018 53413, (2018) 144 O.R. (3d) 424 (S.C.J.), the Court was faced with a complex dispute over the parenting of a young child. The Court found, without expert evidence, that the child had bonded with the foster mother and that it was in the child’s best interests that the child be placed with the foster mother. Similarly, in this case the trial judge did not require expert evidence to determine that the Children were bonded to the foster mother.
[68] More generally, expert evidence is not required to explain every technical finding that a judge makes. For example, an observation that a child does not have a nighttime accident except on the night after an access visit is objective non-expert evidence that a judge can use to infer that the child was dysregulated after the access visit. Indeed, the admission of expert evidence must be tempered by an understanding of its risks and dangers: See White Burgess Langille v. Abbott and Halliburton Co. 2015 SCC 23, [2015] 2 S.C.R. 182. An overreliance on expert evidence to support inferences that are open to trial judges to draw makes litigation more costly and is a further barrier to access to justice.
[69] The evidence before the trial judge in this case was evidence about what the Children were doing and when they were doing it. The trial judge was entitled to use that evidence to draw reasonable inferences about what was causing the behaviour. He drew these inferences, and there is no basis for appellate intervention.
Issue #5- Did the Trial Judge Err in Failing to Substantively Consider the Potential for a Kinship Plan of R.L.?
[70] R.L had been involved in this case for almost two years at the time of the trial. She had accepted custody of N. in October of 2020 and was aware of the Children’s situation at that time. If she had a kinship plan, it was incumbent upon her to advance it at an earlier stage in the proceeding. The trial judge did not make a reviewable error in refusing an adjournment, which would have been an unwarranted delay, especially since the trial judge correctly observed that these children had been in care for more than forty months.
[71] In any event, the Society was prepared to consider the kinship plan even after the conclusion of the trial. The fresh evidence indicates that the kinship plan was ultimately abandoned by R.L.
[72] The trial judge committed no error in this regard.
Conclusion
[73] For the foregoing reasons, I would dismiss the appeal except in respect of the issue of access. In respect of that issue, I would remit the matter back to the trial judge for further consideration consistent with these reasons. Given the urgency of the matter, the trial court should take all necessary steps to ensure a prompt hearing and disposition of the issue of appropriate access.
LeMay J.
I agree _______________________________
Matheson J.
I agree _______________________________
Nishikawa J.
Released: July 11, 2023
CITATION: K.R. v. Children’s Aid Society of London and Middlesex, 2023 ONSC 3798
DIVISIONAL COURT FILE NO.: DC-22-73-00
DATE: 20230711
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, LeMay and Nishikawa JJ.
BETWEEN:
K.R.
Appellant
– and –
The Children’s Aid Society of London and Middlesex, J.R., S.C., Madawaska Maliseet First Nation, R. L. and D. B., Kr. Rh. and the Office of the Children’s Lawyer
Respondents
REASONS FOR JUDGMENT
Released: July 11, 2023