WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
45(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.
45(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.
45(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
2014 ONCA 688
DATE: 20141007
DOCKET: C59146
Cronk, MacFarland and LaForme JJ.A.
BETWEEN
The Children’s Aid Society of the Region of Halton
Applicant
(Respondent in Appeal)
and
E.M.
Respondent
(Appellant)
and
M.K.
Respondent
(Respondent in Appeal)
E.M., appearing in person
Diane B. Skrow, for the respondent Children’s Aid Society of the Region of Halton
Elizabeth McCarty and Kristin Knoepfli, for the respondent the Office of the Children’s Lawyer
Heard and released orally: October 6, 2014
On appeal from the order of Justice J. Trimble of the Superior Court of Justice, dated July 18, 2014.
ENDORSEMENT
[1] The appellant appeals from the order of Trimble J. of the Superior Court of Justice, dated July 18, 2014, quashing the appellant’s appeal from the openness order granted by Zisman J. of the Ontario Court of Justice, dated March 28, 2014, under the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”), pertaining to the appellant’s biological daughter, S.K. S.K. is now almost 15 years of age and has been in protection under the Act since 2008 – a period of approximately 6 years.
[2] In our view, the appeal must be dismissed.
[3] The appellant argues that S.K.’s placement for adoption and, inferentially, her prior Crown wardship, are illegal and should be set aside and that S.K. should be placed with members of her extended maternal family.
[4] We reject this argument. Placement cannot be determined at an openness hearing. In addition, nothing on the record before us establishes any defect in S.K.’s adoption proceedings. Furthermore, the appellant’s arguments in support of her challenge to S.K.’s adoption and the openness order have already been considered on several occasions by various judges of the Ontario Court of Justice and the Superior Court of Justice. We note that this is the appellant’s third appeal to this court in respect of her daughter’s placement. She has been unsuccessful throughout. In essence, the appellant now seeks to relitigate core issues concerning her daughter’s placement already determined by the courts.
[5] The appeal judge of first instance carefully considered the background to this protracted litigation and the grounds advanced by the appellant for reversal of the openness order and S.K.’s placement for adoption. He noted, correctly, that there appears to be no statutory authority under the Act for an appeal of an openness order. In any event, on the record before this court, S.K. is not prepared to consent to a more expansive openness order. In contrast, she did consent to her adoption by her adoptive parents and to the terms of the openness order. Contrary to her submission, the appellant’s consent to the openness order was not required. These considerations are fatal to this appeal.
[6] We further note that the appeal judge referred expressly to the test for quashing an appeal and undertook an assessment of the merits of the appellant’s appeal. Although he stated that it was “plain and obvious” that the appellant’s appeal could not succeed, his reasons, read as a whole, confirm that he directed himself to the governing test for quashing an appeal and applied it properly to the facts before him.
[7] In all these circumstances, we see no basis for appellate intervention with the appeal judge’s decision.
[8] The appellant also challenges the appeal judge’s award of costs to the Children’s Aid Society and the Office of the Children’s Lawyer. However, both parties have confirmed to this court that they are not seeking costs below.
[9] The appeal is dismissed. As neither the Children’s Aid Society nor the Office of the Children’s Lawyer seek costs of this appeal, we make no costs order.
“E.A. Cronk J.A.”
“J. MacFarland J.A.”
“H.S. LaForme J.A.”