DATE: 20040709

DOCKET: C39178

COURT OF APPEAL FOR ONTARIO

RE: Y. B. (Appellant) – and – WINDSOR ESSEX CHILDREN’S AID SOCIETY (Respondent)

BEFORE: McMURTRY C.J.O. and MOLDAVER and CRONK, JJ.A.

COUNSEL: Ian R. Mang, for the appellant

Ronald Burnett, for the respondent

Carolyn Leach and Catherine Bellinger, for Office of the Children’s Lawyer

HEARD: March 11 and April 7, 2004

On appeal from the order of Justice S. Rogin of the Superior Court of Justice dated October 31, 2002.

E N D O R S E M E N T

(1) Background

[1] This appeal concerns Crown wardship proceedings in respect of three children. The factual background may be briefly described as follows.

[2] The appellant, Y. B., is the mother of three children, Ke. B. born […], 1993, J. B. born […], 1995 and Ki. B. born […], 1998 (the “Children”), who were the subject of a status review application initiated by the Windsor Essex Children’s Aid Society in which the Society sought Crown wardship of the Children without access to the appellant or the Childrens’ father, D. B..

[3] The appellant and Mr. B. separated in about June 2000. Thereafter, the Children resided with the appellant until they were apprehended by the Society, without a warrant, in October 2000. They have resided in foster homes since that time.

[4] In November 2000, the Society commenced a protection application concerning the Children. Both the appellant and Mr. B. were represented by counsel and participated in the protection application proceedings. The application was resolved by an agreed statement of facts, which included a plan of care for the Children. In April 2001, the Children were found to be in need of protection under s. 37(2)(i) of the Child and Family Services Act, R.S.O. 1990, c. C.11 on the basis that they had been abandoned.

[5] In mid-August 2001, the Society commenced a status review application, in which it sought an order that each of the Children be made a ward of the Crown without access to the appellant or the Children’s father. Although both parents appear to have been represented by separate counsel at various times in the proceedings, neither parent filed an answer to the Society’s application within the time prescribed by the Family Law Rules, Ont. Reg. 114/99, as amended, or filed a plan of care for the Children.

[6] In the face of the appellant’s failure to respond to the status review application, the Society brought a motion for summary judgment. In support of its motion, the Society argued that neither parent had complied with the plan of care detailed in the agreed statement of facts filed in the protection application proceedings and that no alternative placement with extended family was viable for the Children. The appellant attended in court with counsel on the return date of the motion. Mr. B. attended in person, without separate legal representation.

[7] By judgment dated October 23, 2001, S.G. Zaltz, J. of the Ontario Court of Justice granted the Society’s motion. He held that there were no genuine issues requiring a trial, the Children were in need of protection, there were no other viable placements for the Children with either extended family or other members of the community, and the Children were adoptable. Accordingly, he granted Crown wardship for each of the Children, without access to either of their parents, and held that the Society’s proposed plan of care for the Children was appropriate in the circumstances.

[8] On November 19, 2001, the appellant delivered a notice of appeal from the judgment of the motions judge. Both the appellant and Mr. B. were represented by counsel for the purpose of the appeal. By order dated October 31, 2002, S. Rogin, J. of the Superior Court of Justice dismissed the appeal. In doing so, he stated that neither parent had submitted a proposed plan of care for the Children or provided any information that could have affected the decision of the motions judge. He also stated, “Neither parent has come close to disputing any of the material facts which were before Zaltz J. despite having been given the opportunity [to do so] by [order of] Quinn J. in April 2002.”

[9] The appellant now appeals the dismissal of her appeal from the October 2001 Crown wardship judgment granted to the Society.

(2) Proceedings Before This Court

[10] Argument of the appellant’s appeal before this court commenced on March 11, 2004. In support of her appeal, Ms. B. did not argue that Zaltz J. erred in granting summary judgment on the status review application or that Rogin J. erred in dismissing her appeal from that judgment. Instead, she sought leave to introduce fresh evidence concerning the nature of what she described as her plan of care for the Children. The fresh evidence consisted of an affidavit sworn by Ms. B. C., the Children’s maternal grandmother, in which Ms. C. swore that she previously proposed to care for the Children and that she remained willing and able to do so. The Society disputed Ms. C.’s and Ms. B.’s suggested plan of care for the Children and sought to file an affidavit sworn by a social worker employed by the Society to respond to the fresh evidence tendered by Ms. B..

[11] However, initially, neither the Society nor the Office of the Children’s Lawyer was in a position to provide this court with current information regarding the care and well-being of the Children. In the particular circumstances of this case, having regard especially to the contents of Ms. C.’s affidavit, we were of the view that such information was critical to a proper resolution of this appeal.

[12] We were also concerned that the information filed with this court regarding a possible placement of the Children with Ms. C. or the appellant was inadequate and possibly inaccurate in some respects. In addition, the record indicated that although Ms. B. and Ms. C. had not seen the Children since at least October 2002, access rights to the Children had been exercised by some of the Children’s paternal relatives for several years.

[13] In these circumstances, the continuation of the appeal was twice adjourned to permit the parties to file additional materials with this court that addressed the current and proposed future care of the Children and their best interests.

[14] By May 2004, the Society and the Office of the Children’s Lawyer had filed additional materials with the court that included affidavits sworn on April 6, 2004 and May 6, 2004 by Frances Cappe, a clinical investigator for the Office of the Children’s Lawyer, and a report by Dr. Sheila A. Clyne, a clinical psychologist, prepared for the Society and dated May 8, 2004. Thereafter, the parties filed further written submissions regarding the merits of the appeal and the implications for the Children of the new information filed with this court.

(3) Discussion

[15] The appellant did not identify any legal or factual error made by either of the courts below. Accordingly, on the original record before this court, including the fresh evidence sought to be filed by Ms. B., there was no basis upon which this court could interfere with the decision of Rogin J.

[16] However, the augmented record before this court establishes concerns regarding the current status of the Children and the potential for their current care arrangements to appropriately meet their needs. In particular, the materials before this court indicate that:

i) the prospects for the adoption of one or more of the Children are questionable and are deteriorating with the passage of time;

ii) Ke. B. wishes to be in contact with her mother and her maternal grandmother and is distressed by the loss of her relationships with them;

iii) at least one of the other Children continues to miss his mother and wishes to visit her;

iv) Ms. B. appears to have taken some steps to stabilize her situation and asserts that she is now positioned to play a beneficial and meaningful role in the Children’s lives; and

v) Ms. B. appears to have terminated her previously destructive relationship with D. B., which was a significant concern at the time that the Children came into the Society’s care.

[17] As well, the additional materials filed with this court indicate that the placement plan for the Children now proposed by the appellant is directed to their placement with the appellant, rather than with Ms. C.. Mr. B. did not participate in this appeal and his involvement in the future care of the Children is not contemplated.

[18] Based on all these factors, we are of the view that the Children may benefit from a fresh review of their current situation and care arrangements, including an assessment whether it is in the best interests of one or more of the Children to re-establish contact with or be placed in the care of their mother. The parties appear to now agree that a fresh status review application is appropriate in this case.

[19] Accordingly, for the reasons given, the appeal is dismissed and the appellant is granted leave to commence a fresh status review application before the Ontario Court of Justice concerning all the Children. In the unusual circumstances here, including the fact that no developed plan for the adoption of any of the Children has emerged to date, we are satisfied that this application may be brought forthwith. Given the best interests of the Children, this court’s disposition of this appeal, and the granting of leave to the appellant to proceed with a fresh status review application in accordance with these reasons, we would expect that a request by the appellant for legal aid in respect of that application would receive timely and favourable consideration.

[20] This is not a proper case for an award of the costs of this appeal and we decline to award such costs.

“Roy McMurtry C.J.O.”

“M.J. Moldaver J.A.”

“E.A. Cronk J.A.”