DATE: 20060203

DOCKET: C43212

COURT OF APPEAL FOR ONTARIO

RE:

THE CHILDREN’S AID SOCIETY OF TORONTO (Applicant/Respondent in Appeal) v. K.K. and J.M. (Respondent/Appellant in Appeal)

BEFORE:

MCMURTRY C.J.O., DOHERTY and ARMSTRONG JJ.A.

COUNSEL:

Steven Bookman for the appellant

Kristina Reitmeier and Katherine Kehoe for the respondent CAS

Ken Nathens for the third party Hughes

HEARD: January 19, 2006

RELEASED ORALLY: January 19, 2006

On appeal from the judgment of Justice G. Klowak of the Superior Court of Justice dated February 14, 2005.

E N D O R S E M E N T

[1] The appellant argued that the Children’s Aid Society of Toronto’s (the “Society”) contravention of s. 140(2) of the Child and Family Services Act (the “Act”) in the spring of 2003 rendered the Crown wardship order made in June 2004 a nullity. When s. 140(2) was contravened, a Crown wardship order had been made but was under appeal. The Society erroneously took steps to place the infant with the prospective adoptive parents. The Crown wardship order was subsequently reversed on appeal and a new trial ordered. At that new trial, a Crown wardship order was made in June 2004. It is that order which was appealed to Klowak J. and it is her order dismissing that appeal which is appealed to this court.

[2] The Society acknowledges that it failed to comply with s. 140(2) and that it should have done so. The Society took steps to rectify the problem when it was discovered in the summer of 2003. It was open to the appellant mother during the wardship hearing conducted in June 2004 to demonstrate any prejudice which may have flowed to her from the Society’s contravention of s. 140(2) a year earlier. She demonstrated no prejudice.

[3] In any event, we are satisfied that the Society’s failure to comply with its obligation under s. 140(2) cannot affect the court’s jurisdiction to hear a Crown wardship application and to determine that application on its merits. Were we to accept the appellant’s submission, it would mean that the Society’s failure to comply with s. 140(2) would effectively preclude the court from making a Crown wardship order in the proceedings even if it was demonstrated that a Crown wardship order was in the best interests of the child. That result would be entirely inconsistent with the best interests of the child, the driving force behind this legislation: see s. 1(1) of the Act.

[4] The appellant submits that the trial judge made two errors in the course of determining that the child should be made a Crown ward. The appellant argues first that the trial judge breached s. 15(1) of the Charter by relying on stereotypical notions of individuals who suffer from alcoholism. In doing so, the appellant says that the trial judge denied her the right to equality before the law as guaranteed by s. 15(1) of the Charter.

[5] We would not frame this argument as a Charter argument, but rather as an argument that the trial judge made a determination not on the basis of the evidence, but on the basis of a preconceived stereotype applied to the appellant. Were such the case, the trial judge would clearly have made a reversible error.

[6] Having reviewed the passage in the trial judge’s reasons (p. 10) relied on in support of this submission, we are entirely satisfied that his words do not suggest any form of stereotyping. The language used by the trial judge demonstrates only a common sense recognition of the realities faced by persons who suffer from the terrible disease of alcoholism and the risks inherent in placing a very young child with someone who suffers from that disease.

[7] The appellant next submitted that the trial judge erred in determining the question of Crown wardship by comparing the circumstances of the appellant mother to those of the prospective adoptive parents. As counsel for the appellant accurately and frankly acknowledged, the appellant mother was bound to lose on that comparison.

[8] The trial judge did not decide the question of Crown wardship on the basis of the comparison alluded to by the appellant. The trial judge referred at some length to the relevant statutory provisions setting out the factors to be considered in determining the best interests of the child. He specifically identified the mother’s ability to provide adequate care for her child as the primary focus of the best interests inquiry. The trial judge determined that the appellant mother could not provide the necessary care. In coming to that conclusion, he accurately summarized and relied on the evidence concerning:

• the appellant’s ongoing battle with alcoholism;

• the absence of any relationship between the child and the appellant mother, who had not seen the child since he was a few months old; and,

• the mother’s significant anxiety disorder.

[9] The factors referred to by the trial judge find support in the evidence and, in our view, justify the conclusion reached by the trial judge.

[10] The trial judge did refer to the positive features of the ongoing relationship between the child and the prospective adoptive parents. Those references were appropriate when considering the best interests of the child: see paras. 1, 7 and 8 of s. 37(3) of the Act. We do not read those references as a determination of the best interests of the child based on a comparison of the circumstances of the mother against those of the proposed adoptive parents. The paragraph of the reasons challenged by the appellant is no more than the trial judge’s recognition of the reality of the situation. He had a mother who he had found was utterly unable to provide the necessary care for her child. At the same time, he had evidence that the child was in a home where all the necessary care was being provided. The trial judge could not ignore these circumstances in deciding where the child’s best interests lay.

[11] This was a very difficult case. 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. We have not been shown any error that would justify our intervention and we certainly cannot describe this result as unreasonable. To the contrary, it seems wholly justified.

[12] We have considered the fresh evidence offered by all parties. It does not change our conclusion. While one must applaud the determined efforts of the appellant to continue along her rehabilitative trail, those efforts do not alter the ultimate calculus with respect to the best interests of the child.

[13] The appeal must be dismissed. We would uphold the order of Klowak J. dismissing the appeal from the trial judge.

“R.R. McMurtry C.J.O.”

“Doherty J.A.”

“Robert P. Armstrong J.A.”```