WARNING
THIS IS AN APPEAL UNDER THE
CHILD AND FAMILY SERVICES ACT
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: K.S. v. Children's Aid Society of the Regional Municipality of Waterloo, 2013 ONCA 104
DATE: 20130219
DOCKET: C56096
Blair, MacFarland and Rouleau JJ.A.
BETWEEN
K.S.
Respondent/Appellant
and
The CAS of the Regional Municipality of Waterloo
Applicant/Respondent in Appeal
and
C.B
Respondent
and
Children’s Lawyer, Henry Shields
Respondent
K.S. in person
Catherine Bellinger, for the Children’s Lawyer
Danica Brown, for the CAS of the Regional Municipality of Waterloo
Heard and released orally: February 13, 2013
On appeal from the order of Justice C. Lafreniere of the Superior Court of Justice, dated August 31, 2012.
ENDORSEMENT
Background and History
[1] This matter has a long history. It is the third proceeding involving the appellant’s right of access to her children. Each proceeding began in the Ontario Court of Justice and worked its way through the Superior Court of Justice to this Court.
[2] In August, 2007, the children – then 6 and 8 years of age – were found to be in need of protection and placed in the care of their father subject to supervision by the respondent Children’s Aid Society, with no right of access to the appellant. The rationale underpinning this decision was the appellant’s lack of recognition of the emotional harm her conduct inflicted on the children, who were 6 and 8 years old at the time, and her unwillingness to make changes to her conduct. The issue of access by the mother was adjourned to trial. This decision was upheld in the Superior Court of Justice and in this Court (June, 2008). This Court noted that the appellant’s access would be fully considered at an upcoming status review hearing.
[3] The appellant has not seen her children since the August 2007 order.
[4] Subsequently, after a 45-day status hearing review extending over many months and ending in July, 2010, Hardman J. of the Ontario Court of Justice ordered that the status quo be continued: the children would stay with their father, subject to CAS supervision, for a further 12 months and access to the appellant was prohibited. The continuing prohibition was based on evidence that the children were not yet emotionally well enough to have contact with their mother and that the appellant’s ongoing mental health issues – which she continued to deny – and her ongoing conduct were impediments to access. There had been no change, and Hardman J. gave clear and specific guidance to the appellant as to what she needed to do to overcome the no-access order, if possible. The appellant was required to:
a) attend an appointment with a physician to discuss mental health symptoms, at an Agency approved by the CAS, to follow all recommendations for further assessment and/or treatment, and to obtain a psychiatrist to meet with her regularly and deal with the issues identified in the parenting capacity assessment;
b) attend and successfully complete individual and/or group counselling with regard to personal issues at an Agency approved by the CAS, and follow through with treatment recommendations offered by the service provider; and
c) cooperate with the CAS
[5] This order was appealed by Ms. S., but the decision was upheld both in the Superior Court of Justice and, again, in this Court (Dec. 12, 2011). Leave to appeal to the Supreme Court of Canada was denied.
[6] In the meantime, the CAS commenced another status hearing in May, 2011 – just short of a year following the order of Hardman J. That status hearing led to the order now under appeal. On Dec. 23, 2011, Lynch J. of the Ontario Court of Justice confirmed that the status quo would still be maintained: the children would continue with their father for a further 12 month with CAS supervision, without any access by the appellant. Lynch J. concluded that there had been no change in the appellant’s condition and that she had not taken any steps as required by the order of Hardman J. to address her mental issues that underlie the access issue.
[7] On August 31, 2012, Lafreniere J of the Superior Court of Justice, dismissed an appeal from that order. Ms. S. now appeals the decision of Lafreniere J. to this Court.
[8] We are told that another status hearing is pending, with a date yet to be set.
Observations
[9] We have no doubt that Ms. S. loves her children. As noted, we are told that a new status hearing is presently pending where the issue of her rights to access will be reviewed again. We hope that Ms. S. will cooperate with the CAS with a view to obtaining a psychiatric assessment that will assist the court at the new hearing in making a determination.
[10] There is an assessment by Dr. Benoit that was before Hardman J. in an earlier status court proceeding and it sets out the mental condition that impedes Ms. S.’s access claim.
[11] Counsel advise that if Ms. S. presents this report to a hospital, approved by the CAS, she may be eligible for funding. Presumably, if she cooperates with the CAS as required by the order of Hardman J., the CAS will be able to provide the necessary guidance to assist her in this regard. These matters can be reviewed at the new hearing.
Disposition
[12] That said, we see no error in the decision of Lafreniere J. or in the decision of Lynch J. which she upheld. Ms. S. has some concerns about the factual findings that were made about the refusal by Lynch J. to grant an adjournment, and about other perceived procedural mistakes. The findings were supported by the materials and affidavit evidence in the record however, and we see no basis for interfering with Lynch J.’s discretionary decision to refuse the adjournment. Nor do we see any substance in the other procedural concerns.
[13] The reality is that Ms. S. was required to comply with the terms of the order of Hardman J. set out above requiring her to address her mental health issues by cooperating with the CAS and by seeking the assistance of, and following the treatment recommendations of, a psychiatric agency approved by the CAS.
[14] She has not taken sufficient steps to do so.
[15] Accordingly, the appeal must be dismissed because Ms. S. has not done what she has to do in order to obtain a decision that would set aside the order prohibiting her from having access to her children.
[16] Ms. S. contests the costs award of $2500 made against her by Lafreniere J. Costs are a discretionary matter and we see no basis for interfering with that order. While leave to appeal costs is granted, the appeal is dismissed.
“R.A. Blair J.A.”
“J. MacFarland J.A.”
“Paul Rouleau J.A.”