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. P.M., 2015 ONCA 695
DATE: 20151019
DOCKET: C60392
Hoy A.C.J.O., Weiler and Pardu JJ.A.
BETWEEN
Children’s Aid Society of Toronto
Respondent (Applicant)
and
P.M.
Appellant (Respondent)
Lance Carey Talbot, for the appellant (respondent)
Erin Rose, for the respondent (applicant)
Heard: October 5, 2015
On appeal from the judgment of Justice Penny of the Superior Court of Justice, dated March 31, 2015.
By the Court:
Overview
[1] The appellant’s daughter – born November 19, 2011 – is now almost four years old. She has been the subject of child protection proceedings almost since she was born. She has been in the continuous care and custody of The Children’s Aid Society of Toronto (the “CAS”) since she was just under five months old, and has resided with her foster mother – and proposed adoptive parent – throughout that time.
[2] The finding that the appellant’s daughter was a child in need of protection was made on an uncontested basis on June 13, 2012. A status review was held when the child was two years old. On April 29, 2014, the trial judge made the child a Crown ward, for the purpose of adoption, without parental access. The appellant appealed that decision to the Superior Court of Justice, arguing that the trial judge made palpable and overriding errors in determining the facts on which he relied in making his order.
[3] On March 31, 2015, the appeal judge dismissed the appeal, providing detailed reasons addressing each of the errors allegedly made by the trial judge. The appellant now appeals further to this court. He renews the arguments rejected by the appeal judge. He also brings a motion for leave to adduce fresh evidence on appeal and argues that this evidence compels a different conclusion than that arrived at by the trial judge. He seeks a custody order in his favour or an order of Crown wardship with access.
[4] We agree with the appeal judge that the trial judge made no palpable and overriding errors in determining the facts. The fresh evidence does not affect the disposition of the appeal. It continues to be in the child’s best interests to remain a Crown ward with no access and to be adopted by her foster mother. Accordingly, we dismiss the appeal.
Background
[5] Some background provides the necessary context.
[6] The child’s mother fraudulently impersonated a nurse on multiple occasions and the child’s father fronted the employment agency that hired her out to work as an unqualified nurse. The child was born while the mother was incarcerated for her fraudulent activity. The appellant cared for the child until she was just under five months of age when he too was incarcerated for his role in the fraud.
[7] While it appeared to the CAS that the appellant was able to care appropriately for the child during that period, the CAS was concerned that the mother posed a risk to the child as a result of her history of unstable mental health, a pattern of failure to attend to the medical needs of her children, her lack of cooperation with the CAS and the fact that she was serving a substantial custodial sentence. As a result, the Supervision Order placing the child with the appellant included conditions relating to the mother and her access to the child, and the appellant’s co-operation with the CAS.
[8] The trial judge found that the appellant breached those conditions and was dishonest with the CAS.
[9] When the appellant was incarcerated for his role in the fraud, there was no one to care for the child. She was made a CAS ward and placed in the care of her foster mother.
[10] In March 2013, the appellant was released on probation and began exercising access to the child. He opposed the Crown wardship order sought by the CAS and, as indicated above, the matter proceeded first to trial and was then unsuccessfully appealed.
[11] The appellant’s probation order prohibited any contact with the mother.
Alleged Palpable and Overriding Errors
[12] The appeal judge’s thorough reasons were responsive to the grounds of appeal raised by the appellant. As we have indicated, we agree with the appeal judge that the trial judge did not make any of the alleged palpable and overriding errors. It is unnecessary for us to repeat the appeal judge’s detailed analysis.
The Proposed Fresh Evidence
[13] The appellant submits that the proposed fresh evidence compels this court to order that he regain custody of the child for the following reasons: (a) it dispels the trial judge’s concern about the impact of the appellant’s and the mother’s criminal conduct on the safety of the child: time has passed and the appellant and the mother are attempting to rebuild a new life together; (b) it addresses the trial judge’s concern regarding his unusual degree of social isolation; and (c) his Plan of Care addresses the needs of the child.
[14] The appellant further submits that if custody is not ordered in his favour, the fact – not disclosed at trial – that the child’s mother is Jewish weighs in favour of an access order. He argues that, because the child is biracial, as well as half-Jewish, providing access to the appellant would permit the child to appreciate her unique cultural heritage.
[15] It is therefore helpful to consider what the fresh evidence discloses.
[16] The evidence reveals that the appellant breached his probation order by continuing an intimate relationship with the child’s mother. This relationship resulted in the birth of another child (“P”) in early 2015. The appeal judge was not aware of this fact.
[17] Following P’s birth, the mother voluntarily placed P into the CAS’ care and there is an ongoing proceeding in respect of her custody. The appellant is currently exercising access to P for one hour per week. The mother has, separately, been exercising access to P. The appellant deposes that he and the mother plan to reunite and raise P together as a family once his probation order prohibiting contact with the mother expires on February 4, 2016.[^1] He wants the child who is the subject of these proceedings to join them.
[18] The appellant provides evidence that he has recently reached out to a community Family Support Organization that can provide help and support with parenting; has identified an 8-week therapeutic play group that can help the child if she is returned to his care; and, in the past month, has gone to a psychologist for an assessment. He says he is committed to working with a psychologist to ensure that his parenting of the child is strong.
[19] The fresh evidence also includes an affidavit from the mother. She deposes that she has been working on addressing many of the issues identified by the CAS and hopes to be slowly integrated into the child’s life if the child is returned to the appellant’s care. The mother also disclosed that she is Jewish and would raise the child in that faith.
[20] Finally, the fresh evidence includes a Plan of Care for the child, prepared by the appellant.
Admission and Effect of Fresh Evidence
[21] Section 69(6) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) sets out that the court may receive further evidence relating to events that took place after the decision being appealed from.
[22] Fresh evidence should be admitted in child protection proceedings if: (a) it could not have been adduced before; (b) it is highly relevant in that it enables the court to make determinations on an accurate picture of the situation at hand; (c) it is potentially decisive as to the child’s best interests; (d) it is credible; (e) it is uncontroverted; and (f) it bridges the gap between the evidence submitted in prior hearings and the appeal: Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 83 (SCC), [1994] 2 S.C.R. 165, at p. 190.
[23] A flexible standard should be adopted for the admission of fresh evidence in family law cases involving children in circumstances where accurate and up-to-date information concerning the best interests of the child, when considered with the evidence adduced at trial, might reasonably affect the outcome of the appeal: Children’s Aid Society of Oxford Country v. W.T.C., 2013 ONCA 491, 308 O.A.C. 246, at para. 43.
[24] Despite this flexible standard, we have reservations about the admissibility of the fresh evidence. It largely consists of affidavits of the appellant and the mother. Both have been convicted of fraud and demonstrated an ongoing pattern of deception and non-compliance with court orders. We have concerns about the credibility and reliability of parts of the fresh evidence.[^2] Furthermore, some of the evidence could have been adduced before: the religious heritage of the child could have been raised at trial and the birth of P. could have been disclosed to the appeal judge. However, portions of it – including the evidence of non-compliance with the probation order and the birth of P – are relevant and uncontroverted.
[25] In any event, the fresh evidence falls far short of warranting interference with the trial judge’s conclusion that Crown wardship without access is in the best interests of the child.
[26] In determining whether Crown wardship was appropriate, the trial judge applied the test set out in Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.)and recently confirmed by this court in Children’s Aid Society of Oxford County v. W.T.C. This test requires a court to assess whether the child continues to be in need of protection and, if so, which of the available range of orders is in the child’s best interests. As the appeal judge noted, the appellant’s relationship with the mother lied at the heart of the CAS’ and the trial judge’s concerns about returning the child to the appellant’s care. That concern was not limited to the fact that, as a result of the appellant and the mother being “partners in crime”, the child was left without a responsible adult to care for her. The fresh evidence reinforces the appellant’s intention to reunite with the mother and does not dispel the very serious concerns that the CAS and the trial judge expressed with respect to the mother.
[27] Further, despite the proposed Plan of Care and the efforts recounted in the fresh evidence, we are not persuaded that the appellant has the necessary support to raise the child. The Plan of Care is not compelling. It contemplates that the appellant would continue to work and would immediately send the freshly uprooted child to a full-time daycare. He names someone as a back-up caregiver to provide support to him until he can reunite with the mother, but no meaningful details are provided and there is no corroboration from the named individual. The appellant is only now committing to work with a psychologist and the mother’s professed steps to address the CAS’ concerns are also very recent. As the trial judge commented, multiple issues of parental dysfunction cannot quickly change.
[28] Nor does the fresh evidence warrant interfering with the trial judge’s decision to deny an access order in favour of the appellant. There is a presumption against access where a child has been made a Crown ward. The party seeking access must rebut that presumption by satisfying both elements of s. 59(2.1) of the CFSA: he must show that his relationship with the child is beneficial and meaningful to the child and that the ordered access will not impair the child’s future opportunities for adoption.
[29] In order to satisfy the first requirement, the party seeking access must prove, on a balance of probabilities, that his existing relationship with the child brings a significant, positive advantage to the child. It is not sufficient that there are some positive aspects to the relationship: Children’s Aid Society of Niagara Region v. C. (J.) (2007), 2007 8919 (ON SCDC), 281 D.L.R. (4th) 328 (Ont. Div. Ct.), at para. 29. At trial, the appellant described his relationship with the child as follows: “[s]he’s very comfortable with me. But she’s not attached to me, I’m aware of that.” The trial judge found that the appellant had not established much more than a friendly relationship with the child and that there was no evidence in this case capable of meeting the “meaningful and beneficial” standard. Moreover, the trial judge concluded that the appellant had not met his onus under the second branch of s. 59(2.1) to establish that access would not impair the child’s opportunity for adoption.
[30] The appeal judge found that the evidence from continuing post-trial access visits did not disclose any dramatic development in the appellant’s relationship with the child that warranted reconsideration of the trial judge’s conclusion regarding that relationship. The appeal judge also agreed that the appellant had not demonstrated that his continued access would not prejudice the possibility of adoption.
[31] The fresh evidence adduced by the appellant does not provide any further proof of a “meaningful and beneficial” relationship between him and the child, as required by s. 59(2.1) of the CFSA. Furthermore, the fresh evidence does not include proof that continued access would not prejudice the possibility of adoption.
[32] The child should not be left in limbo. She is nearly four and her emotional ties are to her foster mother. The risk to the child of a disruption of her secure and stable relationship with her foster mother and the permanency it affords is obvious. It remains in the child’s best interests to be a Crown ward without continuing access by the appellant.
[33] The appeal is accordingly dismissed.
Released: “AH” “OCT 19 2015”
“Alexandra Hoy A.C.J.O.”
“K.M. Weiler J.A.”
“G. Pardu J.A.”
[^1]: The appeal judge indicated that the restriction expires in April, 2016.
[^2]: We note that the affidavit filed by the mother – who is Kenyan – in support of her motion for an extension of time to file a notice of appeal of the decision of the Superior Court of Justice appeal judge disclosed both that she is currently on bail from an immigration hold and that she received an unfavourable parenting capacity assessment in June, 2015 (albeit one that the mother contests). These material facts were not disclosed in the proposed fresh evidence.