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.
COURT OF APPEAL FOR ONTARIO
CITATION: Children's Aid Society of Toronto v. N.A., 2012 ONCA 128
DATE: 20120227
DOCKET: C54509
Laskin, Rosenberg and LaForme JJ.A.
BETWEEN
The Children’s Aid Society of Toronto
Respondent in the Appeal (Applicant)
and
N.A. and A.A.T.
Appellant (Respondents)
Linda Choi, for the appellant A.A.T.
A.A.T., in person
Charlotte Murray, for the respondent
Carolyn Leach, for the children
Heard: February 9, 2012
On appeal from the order of Justice Victor Paisley of the Superior Court of Justice, dated May 18, 2011, dismissing the appeal from the order of Justice Marvin A. Zuker of the Ontario Court of Justice, dated November 18, 2010.
By the Court:
BACKGROUND
[1] The appellant mother is 36 years old; the appellant father is 41. Their two children are now 8 and 6 years of age. The children have been under the care of the Children’s Aid Society of Toronto (“the Society”) since November 2007. At that time, and continuing on to the present, the mother and father were divorced and living at separate residences.
[2] The Society first became involved with the family in August 2005. On May 5, 2006 the Society apprehended the children and the father later placed the children into the Society’s care on November 12, 2007. On that occasion the children were placed in a foster care home, which is the same home they continue to reside in.
[3] Throughout the 13 day trial in the Ontario Court of Justice the mother was represented by counsel who also represents her on this appeal. The father has at all times represented himself. On the second day of trial, the trial judge appointed the Office of the Children’s Lawyer to represent the children. The mother did not attend the last three days of the trial.
[4] At trial, the Children’s lawyer supported an order placing the children in the care of the father subject to Society supervision on specific terms. This was based on the children’s consistently expressed views and preferences. In the alternative, the children’s lawyer supported an order of Crown wardship without access to permit the children to be adopted.
[5] On November 18, 2010, the trial judge decided that the best interests of the children required that they be made crown wards without access and placed for adoption. It is to be noted that the children have not seen their parents since that order was made some 15 months ago.
[6] On November 24, 2010, both parents jointly appealed the November 18th order to the Superior Court of Justice. For a variety of reasons, on May 16, 2011 their appeal was dismissed for want of prosecution. While it is technically the decision to dismiss for want of prosecution that is being appealed to this court, all parties agreed that this court could consider the question of error in the original Crown wardship order of November 18, 2010. Putting the best interests of the children first, and given the need for an expeditious conclusion to these proceedings, we agreed to proceed in this fashion.
[7] Both parents seek to have the children placed in their joint care, with or without a supervision order. Alternatively, they request that the children be placed with the father subject to Society supervision, with the mother to have access to the children at her home.
[8] The father is self-represented on this appeal, as he was at trial. He has neither perfected his appeal nor filed any materials in support of his position. It appears that he in effect adopts the legal arguments in the mother’s factum and, with the assistance of an interpreter, advanced his position in oral argument.
[9] On appeal, counsel for the children takes the position that the trial judge’s decision was supported by the evidence, does not reflect any legal error, and is strengthened by the new evidence that was filed with the court. At this time, the Children’s lawyer supports the Society in seeking that the appeal be dismissed and that the children be made Crown wards so that they may be placed in a permanent adoptive home.
ISSUEs
[10] On the merits of the appeal, the appellants assert that the trial judge erred in concluding that the children could not be adequately protected by a supervision order. They argue that he misconstrued some evidence, overemphasised other evidence, and failed to consider a number of relevant factors in arriving at his decision.
[11] And finally, although this was not pressed in oral argument, the appellants submit that the trial judge failed to sufficiently explain why the children could not be returned to the parents’ care.
DISCUSSION
[12] The custody decisions of trial judges are owed considerable deference by reviewing courts. A trial judge’s decision will, therefore, not be interfered with unless there is an error in principle, a failure to consider a relevant factor or a consideration of an irrelevant factor, or a lack of factual support for the judgment.
The trial judge’s consideration of the evidence
[13] The appellants raise numerous findings of fact by the trial judge, which they say reveal error on his part. For example, they point to the finding that the father abused the mother and that the mother absconded to Montreal with one of the children. In each instance they say that the trial judge either overemphasised evidence or failed to consider other relevant evidence.
[14] We disagree. In each of the findings particularized by the appellants - both in oral argument and in the mother’s factum - the reasons reflect that the trial judge was very much aware of the relevant evidence. The evidence is both referenced and reviewed by the trial judge in his reasons.
[15] The real issue the appellants have with the trial judge’s references to the evidence is that he did not agree with their view that it weighed in favour of returning the children to their care. This does not amount to error and does not form any basis on which to interfere with the trial judge’s decision.
[16] In any event, when setting out his reasons for making the children Crown wards, the trial judge was not obliged to discuss every piece of evidence he considered in arriving at his ultimate findings of fact. The entire record, including the trial judge’s reasons for decision, informs this court’s decision on appeal. Ultimately, this court must assess whether the trial judge‘s decision was consistent with the best interests of the children analysis required by the Child and Family Services Act, R.S.O. 1990, c. C.11.
[17] On our review of the record we conclude that the trial judge fulfilled his mandate. Some of the more critical and compelling findings of fact made by the trial judge include that:
• The parents could not provide a safe, stable and permanent plan for the children either jointly or separately. It was the trial judge’s opinion that the volatile nature of their relationship, which included a history of domestic violence, weighed against the viability of any joint plan.
• Each parent had demonstrated an inability to prioritize the children's interests above his or her own. Neither parent had demonstrated any consistent ability to accept direction or support regarding the children's needs.
• There was a continuing risk of harm to the children. The children came into care with issues of basic neglect, including recurring illnesses that were not being treated effectively, an unclean house, and poor hygiene. The risk of neglect continues and the children continue to be in need of protection.
• The history of both parents, and in particular the mother, demonstrates non-compliance and conflict with authority, which reduces the value of any supervision order.
[18] There was ample evidence for each of these findings and it was entirely open to the trial judge to decide that it was in the best interests of the children to be made crown wards without access. He properly considered the evidence and applied the appropriate factors as required under the Child and Family Services Act.
[19] A review of the new evidence, which is not contested, does not alter this conclusion. In fact the new evidence illustrates that certainty in their future is now critically important to these children. The evidence reveals that the children are well nourished, healthy and coping well in care. According to the children’s lawyer, their most pressing immediate wish is to know what their future holds.
[20] The new evidence also discloses that the Society is confident that the children will be adopted and will remain together. Indeed, it notes that there is at least one family that is open to adopting both.
The sufficiency of reasons
[21] The appellants submit that the trial judge’s reasons insufficiently explain why the children cannot be placed with both parents. While this was not pressed in oral argument, it can nevertheless be disposed of by way of brief comment.
[22] To succeed the appellants must show that the deficiency in the reasons of the trial judge has occasioned prejudice to the exercise of their right to an appeal. In this case, the reasons have not.
[23] As already noted, the trial judge reviewed all of the evidence in detail in his reasons. He highlighted the parents’ volatile relationship with each other and with the Society, the history of domestic violence, and the multiple failed attempts to place the children with either parent under supervision as reasons why a supervision order would not protect the children in future. The trial judge’s reasons for why the children cannot be placed in the care of either or both parents are sufficient.
DISPOSITION
[24] The appeal of the decision of the Superior Court of Justice, dismissing the appeal for want of prosecution, is allowed. The appeal seeking to set aside the Ontario Court of Justice order of crown wardship without access, however, is dismissed.
Released:
“FEB 27 2012” “John Laskin J.A.”
“JL” “M. Rosenberg J.A.”
“H.S. LaForme J.A.”