WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

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: Children's Aid Society of Toronto v. M.S., 2016 ONCA 396

DATE: 20160525

DOCKET: C61739

MacPherson, Lauwers and Hourigan JJ.A.

BETWEEN

Children’s Aid Society of Toronto

Applicant

(Respondent)

and

M.S.

Respondent

(Appellant )

M.S., in person

Ian Ross, for the children E. and A.

Tammy Law, for the respondent the Children’s Aid Society of Toronto

Margarida Pacheco, as amicus

Heard: May 20, 2016

On appeal from the judgment of Justice Frances P. Kiteley of the Superior Court of Justice, dated December 8, 2015.

ENDORSEMENT

[1] The appellant, M.S., appeals the decision of the appeal judge dismissing his appeal of the order of Curtis J. denying him leave to bring a Status Review Application.

[2] The appellant and his ex-wife have two children, who were apprehended and placed in the care of the Children’s Aid Society of Toronto (“CAS”) on March 23, 2010.

[3] On July 10, 2010, Curtis J. found that the children were in need of protection and granted an order making them wards of the CAS for four months, with access by the parents at the discretion of the CAS.

[4] On April 16, 2012, Zuker J. ordered that the children be Crown wards for the purpose of adoption and that there be no access granted to the parents.

[5] The appellant and his former wife appealed the order of Zuker J. That appeal was dismissed on November 20, 2012 by order of Penny J.

[6] In February 2014, the appellant brought a motion to this court seeking leave to extend time to appeal the order of Penny J. The motion was dismissed on March 19, 2014.

[7] On May 27, 2014, the appellant commenced a Status Review for a Crown ward. The only relief sought was access to his children. The proceeding was adjourned on multiple occasions because the appellant did not attend court.

[8] On November 12, 2014, Curtis J. dismissed the Status Review Application as a consequence of the appellant’s failure to attend court. In her endorsement, she ordered that the appellant could not bring a further Status Review Application without leave of the court obtained by a Form 14B motion.

[9] Between February and March 2015, the appellant brought three Form 14B motions seeking leave, and all were dismissed without prejudice by Curtis J. In May 2015, he brought a further motion for leave and the motion was argued on June 24, 2015 before Curtis J. In oral reasons, Curtis J. dismissed the motion.

[10] The appellant then appealed the dismissal of his leave motion to the Superior Court of Justice. In reasons dated December 8, 2015, Kiteley J. dismissed the appeal. It is the appeal of that decision that is before this court.

[11] We note that the children were placed for adoption and began their period of adoption probation on July 29, 2015.

Analysis

[12] The appellant makes the following submissions in his factum:

i) the appeal judge made a reversible error when she referred in her reasons to the children as girls, when, in fact, one of the children is a boy;

ii) the appeal judge misapprehended a letter from the Jamaican Canadian Association, which he submitted to Curtis J. on his motion for leave; and

iii) his rights under ss. 7, 15 and 28 of the Charter of Rights and Freedoms have been breached because he has been denied a Legal Aid (“LAO”) certificate for the purposes of this appeal.

[13] On the hearing of the appeal, the appellant was assisted by amicus, who raised an additional argument. She submitted that the appeal judge erred in applying the test for granting leave to bring a Status Review Application as described in Catholic Children’s Aid Society of Metropolitan Toronto v. BAF, 1988 CanLII 1432 (ON CJ), [1988] O.J. No. 2950 (OCJ). Specifically, she submits that the appellate judge erred by equating an open adoption order with access, when considering whether the relief sought could be obtained other than by reviewing the whole order.

[14] We would not give effect to any of these submissions.

[15] The appellant is correct that the appeal judge referred to the children as “girls” in two parts of her endorsement. However, in our view, these were mere factual slips and had no bearing on her decision. They certainly do not warrant appellate intervention.

[16] With respect to the letter from the Jamaican Canadian Association, the appeal judge reviewed the letter and determined that, even if Curtis J. had considered the letter, it would not have changed the outcome of the motion. We see no error in that analysis.

[17] The letter simply described a parenting program that the appellant had attended. It ended with the observations that the appellant is interested in his children’s future and would like to have a quality relationship with them, and the request that he “be given a chance to be a father to his children.” The letter does not impact the analysis of whether the appellant has put forward a prima facie case. The appeal judge also did not err, as was suggested by the appellant, in describing the letter as hearsay. It was an out of court statement tendered for the truth of its contents, namely, an opinion by an author who was not qualified as an expert.

[18] There has been no breach of the appellant’s Charter rights. He has had legal representation, funded by LAO, at every step of the proceeding except the current appeal. The subject matter of the appeal is not the Crown wardship order, but his application for leave to bring a Status Review Application. It is within the purview of LAO to assess the appellant’s eligibility for a certificate in these circumstances.

[19] With respect to the argument raised by amicus, there is an issue whether an access order is even available to the appellant, given that the children have been placed for adoption. In any event, the test for granting leave to bring a Status Review Application has five parts, all of which must be met. We are not satisfied that even if the appeal judge erred in considering this part of the test that the appellant can meet any of the other parts of the test.

[20] The appeal is dismissed. We make no order as to costs.

“J.C. McPherson J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”