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. E.S., 2013 ONCA 77
DATE: 20130207
DOCKET: C56039
Goudge, Epstein and Tulloch JJ.A.
BETWEEN
Children’s Aid Society of Toronto
Applicant (Respondent in Appeal)
and
E. S.
Respondent (Appellant)
Ian R. Mang and Shelley M. Kierstead, for the appellant
Danielle Szandtner, for the respondent
Heard: January 25, 2013
On appeal from the judgment of Justice Frances P. Kiteley of the Superior Court of Justice, dated August 22, 2012.
ENDORSEMENT
[1] The appellant, the biological mother of the children, appeals the decision of the Superior Court dismissing her appeal from an order of the Ontario Court of Justice making her children, C.B., age 4, and M.S., age two, Crown wards with no access. An order of Crown wardship without access has the effect of terminating parental rights, making the children eligible for adoption.
Background
[2] The Children’s Aid Society apprehended C.B. and M.S. at birth. The children had been diagnosed with Fetal Alcohol Spectrum Disorder. They are the youngest of the appellant’s five children, none of whom are in her care. The oldest, G.S. is with a family friend, G.B. The two middle children, M.B. and M.B, are with their paternal aunt.
Trial Decision
[3] After a lengthy trial to determine whether the children were in need of protection under s. 37(2)(b) of the Child and Family Services Act, R.S.O. 1990, c. C11, and if so, the appropriate disposition, Curtis J., in her order of April 20, 2011, concluded that there was ample evidence that C.B. and M.S. were in need of protection due to the risk of physical harm arising out of a pattern of neglect in caring for the children. The trial judge ordered that the children be made Crown wards without access.
[4] Once it is established that a child is in need of protection, however, s.57.1 of the Act sets out a number of possible dispositions including an order for supervision or society wardship as well as an order for Crown wardship. The finding that the children are in need of protection has not been challenged. It is the Crown wardship order that the appellant continues to dispute.
[5] The trial judge considered the various options put forward by the appellant, G.B. and the Society. In analyzing these options, the trial judge noted the appellant’s lack of judgment regarding her relationship with the children’s father and her lack of insight in her parenting. The trial judge went on to commend G.B. and his partner, R.B. for, among other things, their co-operation with the Society. At the same time, she stressed the importance of finality in the lives of these children. This concern was an important factor in the trial judge’s ultimate conclusion that it was in the best interests of the children to make them Crown wards without access in order that they be available for adoption.
First Appeal
[6] The mother appealed the order for Crown wardship with no access, initially seeking an order that the children be returned to her. She then amended the notice of appeal to request an order placing the children with G.B. and R.B., subject to supervision by the Society or pursuant to a custody order.
[7] On June 3, 2011, pending the appeal, the Society initially placed the children in the G.B./R.B. residence as a foster home with a view to adoption. Due to problems that arose between G.B. and the Society foster care/kin resource worker, on November 28, 2011, the Society placed the children in a new foster home with a couple who were not seeking to adopt. This information was submitted as fresh evidence on the first appeal.
[8] On the first appeal, heard June 26, 2012, by Kiteley J., the appellant submitted that the trial judge’s finding of a risk of on-going litigation, with its attendant instability in the lives of the children, was not supported by the evidence. She further argued that the trial judge erred in allowing this unsupported concern to dominate her consideration of the best interests of the children. As such, it was submitted that the trial judge misinterpreted and misapplied s. 57.1 and s. 57(4) of the Act.
[9] In support of her position that the trial judge should have made supervision or custody order, the appellant adduced fresh evidence, an affidavit sworn by Ms. Belmonte, the new Society resource worker assigned to the matter. The appeal judge accepted this new evidence and, in her reasons, summarized its import as follows:
The fresh evidence indicates that between June 3, 2011 and September, 2011, both children were doing well. The placement has been beneficial to both of them and to [G.B.]. However, beginning with the home visit on September 7th, the relationship between [G.B.] and CAST became highly conflicted. In her affidavit, [the child and youth worker] described the deterioration in the relationship primarily between [G.B.] and [the child and youth worker]. Between September 7th and November 28th, CAST did not identify any specific protection concerns about the day to day care of the children. However, [the child and youth worker] identified grave concerns about [G.B.]’s reliability and truthfulness. On October 5th, [the child and youth worker] spoke with [G.B.] and [R.B.] and after raising several issues, informed [G.B.] that due to continued conflicting stories, poor communication and fabrications that had arisen on September 29th, she was requesting consent to get updated medical information from G.B.’s doctor. That was not forthcoming. On November 24th, [the child and youth worker] attended a meeting with the CAST kinship supervisor, CAST supervisor, children’s service worker, two foster parent support workers and [R.B.] and [G.B.]. After reviewing the concerns and issues with respect to the foster home, [R.B.] and [G.B.] were advised that the foster home would be closed and the children would be removed.
[10] The appeal judge was not persuaded that Curtis J. erred in coming to the conclusion that it was in the best interests of the children that they be made Crown wards with no access. The fresh evidence did not, in her view, change that conclusion.
[11] First, the appeal judge held that the order for Crown wardship with no access was supported by the evidence. The appellant had been involved in issues relating to the custody of her various children for over seven years. She also noted the appellant’s efforts to seek the return of her children up to May 22, 2012, when she amended her notice of appeal to support the G.B./R.B. placement.
[12] The appeal judge rejected the argument that even if the record supported a finding that there was a legitimate concern about the risk of future litigation the trial judge erred by overemphasizing that risk and its adverse effect on the children’s entitlement to stability. She concluded that Curtis J. properly considered all the alternatives under s. 57.(1) and 57.1(1) before deciding that none of the alternatives to Crown wardship were appropriate.
[13] Finally, the appeal judge, after reviewing the fresh evidence, found that it did not detract from the validity of the conclusion that the best interests of the children would still be served by making them Crown wards with no access.
Second Appeal
[14] Before this court the appellant continues to argue that there are no grounds for concern about ongoing litigation if the court were to make an order short of Crown wardship without access.
[15] We disagree. After 14 days of trial, this was a reasonable inference for the trial judge to make on the evidence. Like the appeal judge, we find no basis to interfere.
[16] We also agree with the appeal judge that there was no error in the weight assigned to the concern about finality in assessing the best interests of these children.
[17] As for the fresh evidence that was before the appeal judge, there is nothing in that evidence to suggest that the original Crown wardship no access order is not still in these children’s best interests. Once a court has determined that the children should be permanently placed with an adoptive family, it is for the Society to decide where those children are placed (see s. 141.(1) of the Act). The appellant’s challenges to the Society’s placement decisions following the Order for Crown wardship no access are not properly before the court on this appeal and are not relevant to the decision as to whether the dismissal of the appeal from the original Crown wardship no access order should be overturned by this court.
Disposition
[18] We see no basis for this court to interfere and the appeal is therefore dismissed. At the request of the parties, there will be no order as to costs.
“S.T. Goudge J.A.”
“Gloria Epstein J.A.”
“M. Tulloch J.A.”