COURT OF APPEAL FOR ONTARIO

DATE: 2006-10-16

DOCKET: C44496

RE: CHILDREN’S AID SOCIETY OF TORONTO (Applicant/Respondent) – and O. AND M.M. (Respondents/Appellants)

BEFORE: MACPHERSON, CRONK and GILLESE JJ.A.

COUNSEL: Lawrence B. Geffen for the appellants Linda Hofbauer and Sherri Smolkin for the respondent

HEARD & RELEASED ORALLY: October 12, 2006

On appeal from the summary judgment of Justice Susanne R. Goodman of the Superior Court of Justice dated October 14, 2005, dismissing the appeal of the judgment of Justice Stephen E. Foster of the Ontario Court of Justice dated January 23, 2004.

E N D O R S E M E N T

[1] The appellants, O. and M.M., are the parents of four year old L.. L. was apprehended by the respondent Children’s Aid Society of Toronto on the day he was born, […], 2001.

[2] On June 6, 2002, Waldman J. of the Ontario Court of Justice made a finding that L. was a child in need of protection pursuant to s. 37(2)(b) of the Child and Family Services Act. L. was ordered to be made a Crown ward for three months with access to his parents.

[3] In a status review application dated September 3, 2002, the CAS sought an order making L. a Crown ward without access, for the purpose of adoption. A trial was held before Foster J. of the Ontario Court of Justice over thirteen days in October and November 2003. On January 23, 2004, Foster J. ordered that L. be made a Crown ward with no access. Justice Foster found that L. was “very adoptable”. He said:

In my view, securing L.'s adoption and thereby his opportunity for a permanent placement outweighs the loss of connection to his parents and siblings as well as the possibility things may change in the future so as to allow him to one day return home.

[4] The appellants appealed to Goodman J. of the Superior Court of Justice who dismissed the appeal. She held that the trial judge did not err in principle. Moreover, the trial judge considered the relevant factors and there was evidentiary support for the judgment. Justice Goodman further held that the CAS had demonstrated the continuing need for protection of L. as well as that it was in his best interests to remain in the care of the CAS as a Crown ward, without access, for the purpose of adoption.

[5] The appellants appeal to this court. Although they raise many issues, the core of their argument is that Foster J. erred in finding that there was a lack of cooperation by the appellants and/or an inability to monitor compliance by the respondent. They argue that both judges below did not give sufficient weight to the “positive and cooperative” behaviour of the appellants. They attempt to demonstrate that they are good parents through evidence of “positive visits” with their children.

[6] We do not agree with the appellants’ submissions for two reasons. First, in our opinion, the key factual findings by the trial judge, described above, were unquestionably supported by the evidence. Contrary to the appellants’ contention, we are not persuaded that the trial judge misapprehended the nature and significance of the evidence on these key issues or that he assigned an undue or disproportionate weight to the relevant evidence. Second, Goodman J.’s reasons are comprehensive. She dealt with all the aspects of the reasons of the trial judge, Foster J., whose reasons were also very thorough. Her conclusion that the trial judge’s reasons and disposition were sound was, in our view, correct. Moreover, Goodman J.’s ultimate conclusion that “the respondent Society has demonstrated the continued need of protection of L. as well as that it is in his best interests to remain in the care of the respondent society as a Crown ward, without access, for the purposes of adoption” was, in our view, entirely appropriate.

[7] The appeal is dismissed without costs.

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”

“E. E. Gillese J.A.”