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: D.D. v. Children's Aid Society of Toronto, 2015 ONCA 903
DATE: 20151221
DOCKET: C60836
Laskin, Pardu and Roberts JJ.A.
BETWEEN
D.D
Respondent in Main Action
(Appellant)
and
Children’s Aid Society of Toronto
Applicant in Main Action
(Respondent)
Natasha Razack, for the appellant
Anthony Macri, for the Children’s Aid Society of Toronto
Elizabeth McCarty, for the Office of the Children’s Lawyer
Heard: November 24, 2015
On appeal from the judgment of Justice Carolyn J. Horkins of the Superior Court of Justice, dated June 30, 2015, dismissing the appeal from the order of Justice Carole Curtis, dated December 17, 2014, of the Ontario Court of Justice, granting the Children’s Aid Society’s summary judgment motion.
Pardu J.A.:
[1] This is the second appeal from a Crown wardship, no access order, made on December 17, 2014. The mother, D.D., appeals the decision to uphold the Order denying access to her son S.S. Her appeal from the Crown wardship order was dismissed as abandoned.
[2] The facts found by the motion judge and which are not in dispute are as follows. S.S. is now ten years old. He has been in the care of the Children’s Aid Society of Toronto (the Society) for over four years. He has not seen his mother since February, 2014. His stated wish, as asserted through his counsel, is to continue not to have contact with his mother. The Society takes the same position: namely, that there should be no access.
[3] The mother, D.D., was born in Romania and came to Canada in 1995. She worked in the adult entertainment business and as a sex trade worker. Her son, S.S., was born August 15, 2005. The father was D.D.’s client; they were not involved in a romantic relationship and the father currently has no contact with the child.
[4] The child has been in the Society's care and custody since July 19, 2011 when D.D. voluntarily placed him in care under a Temporary Care Agreement. She was experiencing mental health issues, including anxiety and some homicidal ideation, and there was a concern that she might harm herself or the child. The Temporary Care Agreement was extended to May 12, 2012 on consent.
[5] After the child’s admission into care, D.D. had phone access with him until April 2012 when the child asked that the phone calls cease. D.D. continued to have access visits with her son. In June 2012, the Society commenced a protection application. On December 17, 2012, the parties consented to a finding that the child was in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”). The child was made a Society ward for a period of four months with access at the Society's discretion. Access visits continued and S.S. expressed a desire to visit with his mother. However, as of April 2013, at the child’s request, visits occurred only at the Society’s office, and not at D.D.’s home.
[6] The Society observed positive interactions between D.D. and S.S. However, the child consistently responded negatively to the idea that he might be returned to his mother and stated explicitly that he did not wish to be returned to her. He also demonstrated certain troubling behaviour after some visits – soiling the bed, becoming unfocused and disruptive at school, and having difficulty sleeping.
[7] A number of mental health professionals were involved to try and address the child’s needs and identify the supports that would be required for reintegration with D.D. Dr. Fitzgerald assessed S.S.; he commented that the child was clear that he did not want to return to his mother's home, although he did want to continue access visits. Ms. Cowan-Levine, a psychotherapist, also indicated that S.S. was very consistent in his belief that it was not safe for him to go home. Another therapist, Ms. Mulligan, raised the possibility of doing a joint meeting with D.D. and S.S., but after S.S. responded negatively to this idea, she stated that she could not recommend proceeding with such treatment.
[8] In or around December 2013, S.S. disclosed to Ms. Cowan-Levine that he was regularly hit by his mother, tied to a bed to have his mouth washed out with soap, and made to kneel in a corner for a long period of time. As a result, as of December 10, 2013, access was suspended while the police and Society investigated. On December 17, 2013, D.D. nevertheless visited S.S.’s school and gave him Christmas presents (as well as a note with her contact information on it). This event apparently upset the child a great deal; he reported that he was scared his mother would take him away and that he did not feel safe. He reiterated that he only wished to have supervised visits with his mother at the Society’s office.
[9] After this investigation in December 2013, D.D.’s access was resumed, but visits were again suspended after S.S. alleged he had been sexually abused with his mother’s knowledge and while in her care. As a result, D.D. has not seen S.S. since February 18, 2014. No charges were laid in relation to the allegations or physical or sexual abuse. There was evidence from Ms. Cowan-Levine that the child’s behaviour has improved since visits with his mother stopped and his last report card (as of the appeal judge’s decision) showed an “A” average. He expressed that he no longer wished to have access with his mother, supervised or not.
[10] In February 2014, the Society brought an application to make S.S. a Crown ward in the care and custody of the Society without access. In its view, if D.D. were granted access, it would adversely affect the child’s prospects for adoption. The Society then brought a motion for summary judgment. Prior to the summary judgment hearing, D.D. brought a motion for access in January 2014, but withdrew it in May 2014 after being told that it was against her son’s wishes. In neither proceeding did she seek the return of S.S. to her care.
A. The motion judge’s reasons
[11] At the hearing before the motion judge, the appellant did not seek an order for specific access. She requested an order that was silent as to access so that if at some point her son wanted to see her, he would be able to do so.
[12] After granting the Society’s request to make S.S. a Crown ward, the motion judge correctly set forth the applicable test from section 59(2.1) of the CFSA for determining whether to grant access. The onus is on the person seeking access to a Crown ward to prove on the balance of probabilities that the relationship between the person and the child is meaningful to the child, the relationship between the person and the child is beneficial to the child, and that access will not impair the child’s future opportunities for a permanent or stable placement.
[13] She noted that there is a presumption against access to a Crown ward, and that access is the exception and not the rule in this context.
[14] Referring to Children’s Aid Society of Niagara v. M.J., [2004] and the section 59(2.1) of the CFSA, she commented as follows:
In this decision the Court looked at the standard dictionary definitions: “a beneficial relationship is one that is advantageous, a meaningful relationship is one that is significant.” Even if there are some positive aspects to the relationship between the parent and the child that is not enough, it must be significantly advantageous to the child.
The section speaks of an existing relationship between the person seeking access and the child, not a future relationship. That is important because it precludes the Court from considering whether a parent might cure her parental shortcomings so as to create in time a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait while his mother learns how to be a responsible parent. The test focuses on the child’s experience of the relationship, not the parent’s, in the assessment of whether it is beneficial and meaningful. The Children’s Aid Society of Hamilton v. L.S., [2011] decision in the Superior Court.
[15] The motion judge reviewed the history of the mother’s access with her son, and the disturbances to his emotional well-being that resulted. There was no ongoing access and the motion judge concluded that the results of a trial on the issue of access would be a foregone conclusion. She then ordered Crown wardship with no access.
[16] The appeal judge agreed with the motion judge’s conclusions.
B. D.D.’s position ON THIS APPEAL
[17] D.D. submits that the appeal judge erred in failing to identify reversible errors made by the motion judge.
[18] First, she submits that the motion judge erred by not considering how the interruption of the parent-child relationship, which was instigated by the Society due to unproven allegations of sexual abuse in February 2014, affected the beneficial and meaningful bond between her and her son.
[19] Second, D.D. contends that the motion judge erred in not considering that S.S. continued to request access to D.D. up to March 2014. Courts can consider granting access through cards or letters, as opposed to in-person visits, which has been recognized as beneficial to the child insofar as it allows the child to maintain some connection to the biological parent.
[20] Third, she argues that it was an error not to recognize the positive steps D.D. has taken to improve her parenting skills after her mental health issues were addressed, to seek out better employment opportunities, and to acquire suitable housing for her child.
[21] Lastly, D.D. submits that the motion judge gave too much weight to hearsay evidence of professionals, and to the child’s report of abuse. On March 3, 2014, S.S. stated that his mother “bribed him to have sexual acts with her clients.” D.D.’s response to the Society was that the child was not telling the truth. He elaborated upon this on March 14, 2014 in an interview with a detective at the Society’s office:
a. [S.S.] disclosed that when he was in his mother’s care that one day a man come into their home. He stated that the apartment door was unlocked and the man came in. He stated that the man came to his room as he heard the door of his room opening. He got scared and went under the bed. He said that he was shivering, nervous and scared. He saw the man through the crack under his bed. He stated that the man told him to get up and come with him.
b. He started following the man out of his room but he stated that when he got out of his room he ran to his mom’s room, woke her up and told her that there was a man in the apartment. His mom told him to go back and do whatever the man told him to do. She told him if he did then he would get cars/toys. He said he got nervous but went back into the living room where the man was.
c. The man took [off] his pants, he was not wearing underwear and he told [S.S.] to lick and touch his private part. [S.S.] stated that he licked him, and then he touched the man with his finger and then ran to the washroom to wash his hands because he did not want germs. Lori asked how it felt and he stated it felt “a little hard”. [S.S.] said that he washed the germs off his hands because he felt the “yuckiness” on his hand. He stated that his hand felt “kinda greasy”.
d. Lori confirmed with [S.S.] several times that his mom had told him that he needed to do whatever the man said and he would get toys. [S.S.] said that his mom did not follow through giving him the toys, however, but he stated that he “thinks that he knew that she was lying” and knew that she would never give him the toys.
e. [S.S.] said that when his mom told him to go and do whatever the man told him to do he agreed but he thought that the man would make him kneel on his knees like how his mom would do when she would punish him.
f. [S.S.] knew the time of the day this occurred and stated it was 11:29 pm, because when he was walking out of the room he clock changed from 11:28 pm to 11:29 pm.
g. The man also told him to take his pants off and lay down. [S.S.] stated that he had his underwear on and that the man just looked at him and stared at the clock then left.
h. [S.S.] stated that the man was black, in a black suit, black sweater and long sleeve black shirt, and that his hair was darkish brown. He stated further that the man had a scratch on his nose and pimple on his face. He stated that his eyes were dark brown, super dark brown, and almost looked weird.
i. [S.S.] stated he didn’t know the man’s name.
j. [S.S.] stated that when the man left [S.S.] locked the door and went back to bed.
k. The next morning, he said that it was just as normal, he did not say anything to his mom. When asked why he did not say anything to her, he said, “because she already knew that the man was there because he told her.”
[22] At the same time the child reported comments made by his mother during an access visit:
[S.S.] also disclosed that during [an] access visit at the Society office that when the worker went to use the washroom his mother whispered in his ears that she is going to get a cord, wrap it around her neck and hang herself. He stated that it happened in access room 7. He stated that he didn’t believe her because he didn’t think that she really wanted to hurt herself. She told him to keep it a secret. This incident took place before the first interview meeting with Lori.
[23] The appellant’s response to the Society was that her son was not telling the truth.
[24] The child’s therapist reported:
[S.S.] has spoken consistently of the turmoil inside of him, fueled by his enormous anxiety in the presence of his mother, and the containment of the many details surrounding his sexual abuse. Sleep disturbance, inability to concentrate, and some increasing non-compliance were behavioural indicators of the turmoil in [S.S.] as he struggled with thoughts of the past and uncertainties of the future. … As visits with [S.S.]’s mother reduced, and then access, even supervised access was stopped, the emotional tornado inside [S.S.] diminished. … [S.S.]’s fears of retaliation from his mother, even without access, continues; e.g. Finding him at school at recess (which did occur), hearing details in court, learning where he currently resides, all becoming so concerning that arrangements were made for [S.S.] to have only indoor recess at school.
[25] In light of these errors, the appellant submits that there was a triable issue as to whether D.D. should be given access to S.S.
C. THe POSITION OF THE SOCIETY AND THE OCL ON APPEAL
[26] Both the Society and the OCL take the position on appeal that the appeal should be dismissed. The order of Crown wardship without access should be upheld to allow S.S. to move forward towards a permanent placement. Given the child’s consistent fear and anxiety over any contact with his mother, they take the position that there was no triable issue as to whether any access order would have been beneficial and meaningful to him.
D. Analysis
(1) Standard of Review
[27] In Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, the Supreme Court of Canada noted at para. 13 the high standard of review for cases involving child custody:
Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge's decision… an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts.
[28] In that case, the Supreme Court also adopted for child custody appeals its comments in Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518 at para. 12 that an appeal court is not entitled to intervene, “…simply because it would have made a different decision or balanced the factors differently.”
[29] This court has noted that deference is particularly compelling in child protection cases. As Justice Gillese noted at para. 19 of Children’s Aid Society of Ottawa v. S.N.-D., 2012 ONCA 590, “This court owes deference to factual determinations, a consideration that is particularly compelling in child protection proceedings”.
[30] See also Children's Aid Society of Toronto v. V. L., 2012 ONCA 890 at para. 16: “…the degree of deference owed to the trial judge is particularly high in child protection proceedings.”
(2) Focus on the Child
[31] Section 59(2.1) of the CFSA clearly places the focus of the test for access on the child’s perspective.
[32] The mother’s arguments that the Society was responsible for interruptions in her contact with S.S., that she did made requests for access, and that her parenting skills had improved, focus on the reasons for the current state of affairs and on the mother’s efforts. They do not speak directly to whether access would be meaningful and beneficial to the child.
[33] Accordingly, the motion judge was correct to focus on the child’s present best interests.
(3) Hearsay Evidence
[34] Contrary to the appellant’s position, not all hearsay evidence is inadmissible. The question is whether the motion judge relied inappropriately on hearsay evidence. In my view, she did not.
[35] The Family Law Rules expressly contemplate the use of hearsay evidence on a motion for summary judgement. Section 16(5) provides that “if a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.”
[36] Further, s. 50 of the CFSA expressly contemplates the admission of written reports of therapists and other persons involved in the child’s care:
Despite anything in the Evidence Act, in any proceeding under this Part [child protection],
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
[37] Evidence about a child’s expressed views is often presented through persons to whom the child has communicated. Section 39(5) of the CFSA provides that a child under 12 is not entitled to attend court unless the court is satisfied the child can understand the proceedings and will not suffer emotional harm.
[38] Statements about the child’s views and preferences set out in affidavits by Children’s Aid Society workers’ affidavits are admissible: Strobridge v. Strobridge (1992), 1992 CanLII 7488 (ON SC), 10 O.R. (3d) 540 (ONSC).
[39] Statements that show the child’s state of mind are also admissible as a general exception to the hearsay rule where they are admitted not for their truth but for the fact that they were said: Paciocco and Stuesser, The Law of Evidence, 5th Ed. at p.176. Here, many of the complained-of hearsay statements were considered by the motion judge in this context.
[40] In addition, while in some cases, admission of hearsay might be unfair, here the mother does not point to any particular unfairness resulting from the admission of the evidence presented on the motion. It does not appear that she made any objection to that evidence at the hearing or asked to cross examine the deponents of the affidavits.
(4) Conclusions
[41] Here, the appeal judge did not err in determining that the motion judge appropriately focused on the present best interests of the child and did not over-emphasize the hearsay reports of what the child and his therapist said. Essentially the motion judge concluded that the mother did not have an ongoing relationship with the child and that access should not be granted on the basis of the future hope of a beneficial relationship. Given the child’s unwillingness to have contact with his mother, the motion judge did not err in concluding that there was no triable issue as to whether ordering access to the mother would be “meaningful and beneficial” for the child.
[42] As this court pointed out in Children’s Aid Society of Niagara Region v. C.J., 2015 ONCA 695:
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.
[43] I am not satisfied that the mother’s present proposal, to send birthday and Christmas cards to the child would bring a significant positive advantage to the child.
[44] I recognize that the child’s expressed wishes to have no contact with his mother have lasted about 21 months and that he might change his mind. If that happens, s. 59(4) of the CFSA allows the Society to facilitate contact between the child and his mother:
If a society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward and no openness order under Part VII or access order is in effect with respect to the person and the Crown ward, the society may permit contact or communication between the person and the Crown ward.
[45] This would allow the mother to send cards intended for her son to the Society, which could assess whether receipt of these communications would be beneficial for the child. The mother has not attempted any such communications in the last 21 months that there has been no access.
[46] In addition, at any time before an adoption order is made, the Society may apply for an openness order allowing a parent access to a child, despite the Crown wardship. (Section 145.1 (1) CFSA).
[47] A court may make such an order if satisfied that:
(a) the openness order is in the best interests of the child;
(b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child (s. 145.1.2(6) CFSA)
[48] If the child is placed for adoption, any order made by the motion judge for access would terminate. If the mother had been granted access, she would be entitled to notice of the placement for adoption, that the access order terminated upon such placement, and that she could apply for an openness order within 30 days. This would mean re-litigation of the same issues that were before the motion judge. Like s. 59(2.1), s. 145.1.2(6) contemplates an existing relationship that is beneficial and meaningful to the child.
[49] The prospect of further litigation may deter prospective adoptive parents. As pointed out in Catholic Children’s Aid Society of Toronto v. L.D.E, 2012 ONCJ 530, there are many ways in which an outstanding openness application could derail an adoption by prospective adoptive parents:
a. They would be facing further litigation;
b. They would not know the result of such litigation;
c. They would not know what form an openness order might take;
d. If an openness application is brought, the adoption will be delayed.
[50] The child has not seen his mother for over 21 months. That is a very long time in the life of this child. The motion judge did not err in concluding that the mother had not met the test in s. 59(2.1) to establish that her existing relationship with the child was beneficial and meaningful to the child
[51] I also note that fresh evidence filed on the appeal demonstrates that the child is very worried about his present limbo. He continues in therapy. He is worried he will be too old to be adopted. When asked what was on his Christmas list he responded, “Nothing you don’t know about. We just talked about it: adoption, a computer and a mom and dad of my own to love me.” This child has now been in care for four years. A secure placement for adoption, as soon as possible, is essential to advance his best interests.
[52] Accordingly, the appeal from the refusal of the motion judge to grant access or order a trial of the issue of access is dismissed.
Released: (GP) December 21, 2015
“G. Pardu J.A.”
“I agree John Laskin J.A.”
“I agree L.B. Roberts J.A.”