2008 ONCA 738

DATE: 20081029

DOCKET: C48059

COURT OF APPEAL FOR ONTARIO

MacPHERSON, CRONK AND ROULEAU JJ.A.

BETWEEN

Family and Children’s Services of Guelph and Wellington County

Respondent (Applicant)

and

K.S. and D.M.T.

Appellants (Respondents)

K. S. and D.M.T., in person

Carol S. VandenHoek, for the respondent

Heard: October 21, 2008

On appeal from the order of Justice L. Snowie of the Superior Court of Justice dated October 24, 2007 dismissing an appeal from the order of Justice L.J. Rogers of the Ontario Court of Justice dated February 22, 2007.

ENDORSEMENT

[1] The appellant D.M.T., supported by her husband – the appellant K.S. – appeals against the October 24, 2007 order of Snowie J. of the Superior Court of Justice dismissing the appellants’ appeal from the February 22, 2007 order of L.J. Rogers J. of the Ontario Court of Justice directing that the appellants’ three-year old daughter – P.T.S. – be made a ward of the Crown without access for the purpose of adoption.

[2] The appellants do not allege any legal error by the appeal judge or the judge of first instance. Rather, they seek to reverse the decisions below on the basis of fresh evidence concerning Ms. T.’s progress in developing parenting skills, her current mental health and living circumstances, and her suggested ability to care for P.T.S.

[3] P.T.S. has been in foster care, in the same foster home, since her apprehension by the respondent Society in August 2005 – about three years ago. The appellants are P.T.S.’s biological parents. They last saw P.T.S. in March 2007. P.T.S.’s foster family wishes to adopt P.T.S. and has been approved for adoption. Fresh evidence tendered by the Society indicates that P.T.S. is thriving in her current placement and that her foster parents have provided P.T.S. with a stable, secure and supportive living environment.

[4] The fresh evidence tendered by both parties meets the requisite test for admission on appeal. During oral argument, neither party opposed the receipt and review by this court of the fresh evidence proffered by the other.

[5] Section 1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the Act) states: “The paramount purpose of this Act is to promote the best interests, protection and well being of children.” Thus, P.T.S.’s best interests dictate the outcome of this appeal.

[6] It is clear that Ms. T. has made great strides in developing the skills and support networks necessary for the care of her youngest child, her son G.S., with whom she now lives in Quebec. We do not underestimate the significance of these efforts by Ms. T. To the contrary, we recognize and commend them.

[7] But G.S.’s interests are not necessarily the same as those of P.T.S. This court, unlike the courts of Quebec, is concerned solely with P.T.S.’s best interests.

[8] The record before us indicates that:

(i) there is considerable uncertainty regarding any future care plan proposed by Ms. T. for P.T.S. Indeed, very few concrete details of such a plan have been put forward;

(ii) Ms. T. is now separated from Mr. S. – P.T.S.’s biological father;

(iii) contrary to Ms. T.’s contention, there has been no real explanation forthcoming for the serious and extensive injuries sustained by her daughter B.S. while B.S. resided in the appellants’ care. Further, the available evidence suggests that Mr. S. has failed to show any insight into the nature of the appellants’ responsibility for B.S.’s injuries;

(iv) the expert evidence reveals continuing concerns about Ms. T.’s ability to cope if a second child is placed in her custody. The involved experts do not support a plan to place P.T.S. in the care of the appellants; and

(v) it is only within the last month or so that Ms. T. has been permitted by the Quebec courts to live in the community with her son, G.S..

[9] By way of comparison, the record also establishes that:

(i) P.T.S. has developed strong bonds with her foster parents and their children;

(ii) P.T.S. has no real relationship at present with either of the appellants, whom she has not seen for more than eighteen months;

(iii) P.T.S. has been receiving excellent care in her foster care home and continues to receive positive discipline, stability and consistent parenting from her foster par-ents; and

(iv) P.T.S. is developing appropriately for her age, in all respects, in her current foster care environment.

[10] P.T.S.’s best interests require that we balance all the considerations set out in s. 37(3) of the Act, including those relating to the importance of continuity of care for P.T.S. and P.T.S.’s physical, mental and emotional needs. Balancing all these factors, including the extensive history of the appellants’ past care of their children as detailed in the record, we are satisfied that P.T.S.’s best interests require that her current placement remain undisturbed.

[11] For the reasons given, the appeal is dismissed. This is not an appropriate case for an award of costs.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”