WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
- (7) The court may make an order,
(a) excluding a particular media representative from all or part of a hearing;
(b) excluding all media representatives from all or a part of a hearing; or
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
CITATION: Children’s Aid Society of the Regional Municipality of Waterloo v. C.A.D., 2011 ONCA 684
DATE: 20111104
DOCKET: C53695
COURT OF APPEAL FOR ONTARIO
Blair, Juriansz JJ.A. and Pepall J. (ad hoc)
BETWEEN
The Children’s Aid Society of the Regional Municipality of Waterloo
Applicant (Respondent in Appeal)
and
C.A.D.
Respondent (Respondent )
and
Z.S.
Respondent (Appellant in Appeal)
Brigitte Gratl, for the appellant
Kim Putman, for the respondent Children’s Aid Society of the Regional Municipality of Waterloo
Heard: October 26, 2011
On appeal from the order of Justice Wendy L. MacPherson of the Superior Court of Justice dated April 12, 2011.
Juriansz J.A.:
[1] The appellant, the biological father of the child, appeals the decision of the Superior Court dismissing his appeal from the order of Crown wardship without access granted by the Ontario Court of Justice on summary judgment. An order of Crown wardship without access has the effect of terminating parental rights making the child eligible for adoption.
Background
[2] When the child was born in February 2008, her paternity was not clear. The child was initially in the care of her mother and was apprehended by the Children’s Aid Society of the Regional Municipality of Waterloo (the “Society”) on July 28, 2008 from a person with whom the mother placed the child because she felt unable to cope with her. The appellant, who was living in Port Elgin, was confirmed as the father by DNA testing. The Society had concerns about the father’s physical health, as it received records that indicated he had a history of blackouts, head trauma resulting from significant physical abuse by his father, abuse of prescription drugs, and regular use of marijuana. The Society communicated its concerns to the father and advised him of the information he needed to provide, and the actions he needed to take, in order to address those concerns.
[3] The Society arranged twice weekly access for the father. The father had difficulty exercising that right of access because of transportation obstacles, and on February 21, 2009, he notified the Society that he had moved to Kitchener. After his move, he exercised regular and consistent access.
Orders Below
[4] On March 25, 2009, an order was made making the child a Society ward for a four month period. The Society’s summary judgment motion for an order of Crown wardship without access was eventually heard by Hardman J. on March 23, 2010. The father opposed the motion and sought placement of the child in his care. The mother supported the motion, but indicated that if the child were placed with the father, she would want access.
[5] Hardman J. correctly identified the test on a motion for summary judgment as whether there is a need for a trial to establish the material facts that are necessary to the determination of the application. She also appropriately identified the use of the summary judgment rule as a procedural remedy to promote the child’s best interests and to support the time limitations established by s. 70 of the Child and Family Services Act, R.S.O. 1990, c. C.11. Hardman J. gave comprehensive reasons for granting the order. The father had few community or family supports, had not provided medical information to explain his blackouts or the continuing effects of his head trauma, had failed to complete the counselling and parenting programs the Society had suggested, had not ceased the regular marijuana use he had commenced at age 13, and showed lack of insight about the matters that were of concern to the Society. Contradictions in the father’s own material gave rise to concerns about reliability, and there was recognition that any continuing access by the father would have to be on a supervised and trial basis. Based on the father’s admission that he posed a risk to the child, the fact that he had not addressed those risks in the preceding year, and that he had not provided any evidence that change supporting the return of the child was “even in distant view”, the motion for summary judgment was granted and the child was made a Crown ward with no access.
[6] The father’s appeal was heard by MacPherson J. on March 24, 2011. On April 12, 2011, she released reasons dismissing the appeal.
[7] The issue on appeal before MacPherson J. was whether the motion judge erred in finding that there was no genuine issue for trial. The father submitted that the motion judge made impermissible findings of credibility and findings of fact not supported by the evidence. It was further submitted that the Parenting Capacity Assessment of Dr. Perlman was improperly relied upon.
[8] The father also tendered fresh evidence of his marriage to a woman who was his girlfriend at the time the original order was made, the birth of a new child to this couple, and that while the Children’s Aid Society of Grey Bruce had commenced a protection application, the new child remained in the parents’ care subject to supervision by that society. The respondent Society also filed an affidavit confirming that the child who is the subject of this appeal has been placed in an adoptive home on May 31, 2010 and has settled in and adjusted well to that home.
[9] The appeal judge dismissed the appeal, rejecting the father’s submissions that there were factual issues that required a trial, that there had been inappropriate findings of credibility, and that there was any error in the motion judge’s reliance on Dr. Perlman’s assessment. The fresh evidence did not show that the father had developed insight into his deficiencies or that he would be amenable to taking steps to address his shortcomings. The three year old child had been in the Society’s care for all but the first five months of her life, and was in an adoptive home where she was doing well. The order of Crown wardship with no access continued to be the only order in the child’s best interests.
Analysis
[10] For the reasons set out by MacPherson J., there is no merit to the argument that the motion judge erred by granting summary judgment.
[11] The father has again tendered new evidence on this appeal. The Children’s Aid Society of Grey Bruce has withdrawn its protection application in relation to the father’s new baby, replacing it with a plan of service. The father submits that this new evidence demonstrates that there is at least a triable issue as to his capacity to parent.
[12] The fresh evidence does demonstrate the father’s progress as a parent. He is to be commended for that progress. It is evident that the father loves the child and deeply wants to be a parent to her. From his perspective, proceeding with this second appeal is understandable. The law, however, requires that the analysis be conducted from the perspective of the child’s best interests.
[13] For the first five months of her life, the child was raised by and attached to her mother. Initially, she had no relationship with her father. It was only after the Society became involved that the child had weekly and then biweekly supervised visits with the father from late 2008 to May 14, 2010. The child has not seen the father since then. Those visits gave the child the opportunity to form a connection with the father, but not to cultivate a deep and abiding relationship.
[14] The father’s suitability to parent the child was thoroughly and carefully assessed first by the motion judge and then by the appeal judge. The evidence, including the fresh evidence, shows that the father continues to develop as a parent, but it does not dispel the continuing concerns about his capacity to care for the child. Since May 31, 2010, the child has been with a family who wishes to adopt her and the adoption has been approved pending these legal proceedings.
[15] It is in the child’s best interests, now, that there be finality, and that she have a permanent home. The fresh evidence, though admitted, does not give reason to displace the order of Crown wardship with no access.
Conclusion
[16] The appeal is dismissed. The Society does not seek costs.
“R.G. Juriansz J.A.”
“I agree R.A. Blair J.A.”
“I agree S.E. Pepall J. (ad hoc)
RELEASED: November 4, 2011