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
CITATION: Catholic Children's Aid Society of Toronto v. A.Y., 2015 ONCA 493
DATE: 20150703
DOCKET: C59715
Weiler, Cronk and Pepall JJ.A.
IN THE MATTER OF the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended
AND IN THE MATTER OF the Children:
Y.N.Y.
M.L.Y.
S.C.H.Y.
M.K.Y.
BETWEEN
Catholic Children’s Aid Society of Toronto
Applicant (Respondent)
and
A.Y.
Respondent (Appellant)
and
P.Y.
Respondent (Appellant)
A.Y. and P.Y., acting in person
Rena Knox, for the Catholic Children’s Aid Society of Toronto
Catherine Bellinger, for the Office of Children’s Lawyer on behalf of the children
Heard: May 15, 2015
On appeal from the order of Justice Craig Perkins of the Superior Court of Justice, dated November 10, 2014.
ENDORSEMENT
[1] The appellants submit that the judge at first instance erred in granting Crown wardship of their four children, now aged 16, 13, 9, and 6 years old, on the motion for summary judgment brought by the respondent, the Catholic Children’s Aid Society of Toronto (the “CCAS”). The grounds of appeal raised before the summary judgment appeal judge fell into three broad groups: (i) procedural fairness issues and whether summary judgment ought to have issued; (ii) evidentiary issues, such as misapprehension of the evidence, overemphasis of some aspects of the evidence, failure to consider other aspects of the evidence and lack of evidence for certain findings; and (iii) the nature of the order that ought to have been made.
[2] We see no error in the decision of the summary judgment appeal judge. With respect to the specific issues raised by the appellants on appeal, we conclude as follows.
Crown Wardship
[3] The order that the children were in need of protection and making them Crown wards was properly made. Notwithstanding the voluminous “fresh” evidence filed on this appeal, we are of the opinion that Crown wardship continues to be in the best interests of the children. We note that this disposition is in accordance with the wishes of the children. As the summary judgment appeal judge observed, a child’s wishes, especially as he or she grows older, are an important component of the determination of the child’s best interests.
[4] Accordingly, the appeal with respect to Crown wardship is dismissed.
Proposed Parental Access
[5] With respect to access by the parents, the summary judgment appeal judge noted, at para. 47 of his reasons:
[T]he test involves not only a beneficial and meaningful relationship, but also a finding that access would be in the children’s best interests. There was evidence about how the parents had taken advantage of contact initiated by the children in the past three years to blame them for destroying the family.
[6] Having regard to the reasons for which Crown wardship was ordered and the onus on the parents under s. 59(2.1) of the Child and Family Services Act, R.S.O. 1990, c. C.11, the motion judge concluded that the parents also failed on the access issue and ordered no access.
[7] In our view, on the record before him, the summary judgment appeal judge’s conclusion on access was fully justified. The record indicated that none of the children had then expressed any desire to see their parents, although one of the children (Y.N.Y.) had proposed making a video to send to his parents.
[8] That said, at the appeal hearing, this court was informed that at times the two eldest children had expressed a wish to have some contact with their parents, either by telephone or by the making of a video for them. Indeed, the eldest child, Y.N.Y., had made a video for his parents and it was given to them in court by the representative of the CCAS.
[9] Counsel for the CCAS pointed out that the children are emotionally fragile. All of them want the parents to accept responsibility for the harm they have caused.
[10] In these circumstances, the court asked the appellants and counsel for the CCAS and the Office of the Children’s Lawyer to indicate how access could be compatible with the best interests of a particular child if that child wished contact with a parent. Counsel responded that if a child is desirous of such contact, and the child’s therapist agreed that contact with the parent would be in the best interests of that child, the CCAS would be at liberty to arrange such contact. It is anticipated that any such contact would proceed on the following basis:
• The parent would write a letter to the relevant child saying the parent is sorry for any harm he or she may have caused the child;
• Once this initial letter has been written, other letters may follow on the understanding that the tone of the letters are respectful and do not attempt to place any blame or guilt on the child for what has transpired;
• If the child wishes, the child may make a video to be given to the parents;
• The parent would engage in a mediated discussion with the child’s therapist about the video that has been made. For example, with respect to Y.N.Y,, the parent and therapist would talk about the video that Y.N.Y. made and about how he feels about what happened to him;
• Provided the outcome of the discussion with the child’s therapist is positive, a parent may make a video to be given to the child once that video has been approved by the child’s therapist ; and
• Prior to any in-person supervised visit with a child, the parent would also engage in a therapeutic process aimed at implementing supervised reunification visits with the children.
[11] If this process is implemented and successfully completed, the CCAS indicated it would be prepared to move to vary the no access order.
[12] The appellants did not object to the above-noted features of a potential future parental access plan.
[13] Accordingly, while we must also dismiss the appeal with respect to the issue of access on the basis of the existing record, we do so on the understanding that if the process outlined above takes place, the no access order in respect of parental access may be potentially varied.
Proposed Access to Maternal Grandmother
[14] The summary judgment appeal judge declined to deal with a request by the Children’s Lawyer’s agent for access by the children’s maternal grandmother to the oldest child and possibly the second oldest child as well. The request was opposed by the CCAS at the time and there was no evidence as to how such access would be in the best interests of either child. The summary judgment appeal judge noted that the CCAS had indicated that it would continue to try and arrange access to the grandmother, taking into account each child’s wishes and the recommendations of his or her treating professionals.
[15] Before this court, the CCAS advised that Y.N.Y. had written a letter to his maternal grandmother and was hoping for a reply. The children’s maternal grandmother was present in court and Y.N.Y.’s letter was given to her. The CCAS and Children’s Lawyer’s agent are not opposed to the grandmother having contact with Y.N.Y. by writing to him. Further, the court was informed that the CCAS no longer opposes a supervised visit by the maternal grandmother with Y.N.Y., provided he wishes to see her and provided further that the grandmother agrees to meet with a bilingual CCAS worker a half hour ahead of the supervised visit to be briefed on how the visit should be conducted.
[16] On the record before us, it is premature to conclude that court-ordered access by Y.N.Y. to his maternal grandmother is in Y.N.Y.’s best interests. However, there have been two developments since this issue was before the summary judgment appeal judge. First, by writing a letter to his grandmother, Y.N.Y. has indicated that he wishes to have contact with her. Second, the CCAS has now given qualified agreement to access by the maternal grandmother.
[17] Accordingly, it appears to us that initial steps have now been taken to move towards potential access. That said, on the record before us, no new court order is warranted or required at this time.
Alternate Plan of Care
[18] Finally, we observe that the CCAS filed as fresh evidence a report dealing with an alternate proposed plan of care by the children’s relatives in France that was in the French language and that had not been translated. The CCAS offered no explanation for the failure to have this document properly translated and, in response to questions from the panel, indicated it could likely have had the document translated in two days. While the members of the panel were able to overcome this obstacle, we caution that in future the CCAS should obtain a certified translation of relevant documents in advance or risk having the appeal adjourned until that is done. Having to adjourn in order to have documents translated into the appropriate language is a hindrance to the due administration of justice and unnecessary delay is not in the best interests of the children whom the CCAS is mandated to protect.
[19] The alternate plan of care proposes that the children move to France to be cared for by a maternal aunt and uncle. The report of the French Bureau de l’aide sociale à l’enfance, which was forwarded to International Social Services Canada, does not recommend this alternate plan of care, having regard to the lack of support the proposed care givers would offer to the children respecting their removal from parental care. The CCAS also opposes this alternate plan of care having regard, among other things, to the emotional attachment of the two youngest children to their present foster environment, as well as the differences in language and culture the children would encounter. We agree that the proposed alternate plan of care is not in the best interests of the children.
Disposition
[20] For the reasons given, the appeal is dismissed.
“K.M. Weiler J.A.”
“E.A. Cronk J.A.”
“Sarah Pepall J.A.”