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: Children's Aid Society of Toronto v. V.D., 2016 ONCA 959
DATE: 20161220
DOCKET: C62218
Cronk, Juriansz and Roberts JJ.A.
BETWEEN
Children’s Aid Society of Toronto
Applicant (Respondent)
and
V.D. and P.V.
Respondent (Appellant)
V.D., acting in person
P.V., acting in person
Lisa Hayes, for the respondent
Heard: December 12, 2016
On appeal from the judgment of Justice Nancy L. Backhouse of the Superior Court of Justice, dated May 10, 2016, with reasons reported at 2016 ONSC 3297.
By the Court:
Introduction
[1] The appellant V.D. is the biological mother of P.A.V., a young boy born on January 4, 2008. The appellant P.V. is P.A.V.’s biological father. On December 11, 2014, Weagant J. of the Ontario Court of Justice (the “trial judge”) found P.A.V. to be in need of protection due to neglect under s. 37(2)(b) of the Child And Family Services Act, R.S.O. 1990 c. C.11 (the “Act”). P.A.V. has been in the temporary care of the respondent, the Children’s Aid Society of Toronto (the “CAS”), ever since. Although the appellants now dispute the trial judge’s finding of severe neglect of P.A.V., no party appealed the trial judge’s protection ruling.
[2] By order dated July 29, 2015, Weagant J. made P.A.V. a Crown ward with no access to the appellants, pursuant to s. 57(1)(3) of the Act. The appellants appealed to the Superior Court of Justice, asserting that the trial judge had misdirected himself and erred in law in numerous respects. On May 10, 2016, Backhouse J. of the Superior Court (the “appeal judge”) dismissed their appeal.
[3] The appellants now appeal to this court from the appeal judge’s decision.
Preliminary Matters
[4] At the outset of oral argument at the appeal hearing, V.D., supported by P.V., sought various relief, including: i) a further adjournment of the appeal to afford the appellants time to review the transcripts of the proceeding before the appeal judge, which they claimed not to have received; ii) additional time for argument of the appeal, namely, 20 hours for V.D. and 20 hours for P.V.; iii) the appointment of a five-person panel of this court to hear the appeal; iv) the granting of leave to appeal to the Supreme Court of Canada from the appeal judge’s decision; and v) in the case of P.V., an order removing him as a named appellant on this appeal to permit him to commence his own appeal.
[5] The panel declined to grant any of the requested relief, for several reasons. First, none of the requested relief was sought on proper materials served and filed in accordance with the applicable rules of court; second, and importantly, no proper justification for any of the requested relief was advanced by the appellants; third, by order of this court dated October 24, 2016, the argument of this appeal on December 12, 2016 was made peremptory to the appellants as an essential term of the adjournment of the appeal then granted at the appellants’ request; fourth, also by this court’s October 24, 2016 order, a procedure was set for the service on the appellants at a designated location of all materials and transcripts related to this appeal, counsel for the CAS confirmed proof of service of the transcripts in accordance with that court order, and the transcripts in question had been filed with this court; and fifth, some of the relief sought (for example, the appointment of a five-person panel to hear the appeal) was unavailable in any event. In all these circumstances, the granting of the appellants’ adjournment and other requests for procedural relief was neither warranted nor appropriate.
Merits of Appeal
[6] For the following reasons, we also conclude that the appeal must be dismissed on the merits.
[7] First, the appeal judge considered each of the appellants’ grounds of appeal in detail. She provided cogent and comprehensive reasons (20 pages) for her rejection of them. In particular, after alluding to the pertinent evidence before the trial judge, including the expert evidence, regarding P.A.V.’s needs, V.D.’s parenting capacity and her proposed plan of care, and the trial judge’s conduct of this lengthy trial (35 days), the appeal judge held:
there was no merit to the appellants’ multiple allegations of bias and procedural unfairness against the trial judge;
contrary to the appellants’ contention, Dr. Jean Wittenberg (a staff psychiatrist at the Hospital for Sick Children and head of that institution’s Infant Psychiatry Program who conducted a third parenting capacity assessment in respect of V.D.) did not usurp the trial judge’s role or function. Rather, the trial judge’s decision to make P.A.V. a Crown ward and to terminate parental access was his alone, based on the totality of the evidence at trial;
it was open to the trial judge on the evidence to conclude, as he did, that continued parental access was not in P.A.V.’s best interests, that the appellants had not satisfied their onus of demonstrating that access would benefit P.A.V. once he became a Crown ward, that V.D.’s inability to control her conduct, including her harassing behaviours, demonstrated a present and continuing impediment to permanency planning for P.A.V., and that V.D. routinely ignores directions and rules regarding P.A.V. with which she disagrees; and
there was no basis on the record to conclude that the trial judge failed to consider whether P.A.V. could be returned to V.D.’s care or whether it was in P.A.V.’s best interests to have a continuing relationship with the appellants. To the contrary, the trial judge’s reasons confirm that he carefully considered these central issues and that his findings were supported by the evidence he accepted.
[8] We see no error in the appeal judge’s holdings or in her reasoning. Her findings, and those of the trial judge, attract considerable deference from this court: see C. (G.C.) v. New Brunswick (Minister of Health and Community Services), 1988 34 (SCC), [1988] 1 SCR 1073; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014.
[9] Further, the appellants have been unable to point to any palpable and overriding error or any reversible error of law in the appeal judge’s decision. For example, their claim that the trial judge, and the appeal judge in turn, failed to consider the positive aspects of V.D.’s relationship with P.A.V. and her proposed plan of care for him are belied by the trial judge’s and the appeal judge’s reasons. Those reasons make clear that the evidence of V.D.’s relationship with and her conduct concerning her son, and the best interests of P.A.V., were at the forefront of the trial judge’s analysis of the issues and his evaluation of the evidence.
[10] Further, while the appellants maintain that there was no valid final order by the trial judge before the appeal judge, that the order contained in the appeal hearing materials is “illegal” and “false” or a forgery, and that Dr. Wittenberg’s report was “altered” or “fabricated”, they adduced no evidence in support of these serious allegations. There is simply no evidentiary foundation on the record before this court to support these bald assertions.
[11] Finally, to the extent that the appellants renew their challenge to the trial judge’s decision based on the arguments advanced by them before the appeal judge, those arguments, as we have said, were fully considered by the appeal judge, and rejected, for cogent and clear reasons.
[12] In the end, we see nothing in this record to support any allegation of procedural unfairness or any reversible error by either the trial or the appeal judge.
Disposition
[13] P.A.V. has been in the care of the Society since May 16, 2011 – about five and one-half years. He will be nine years of age in about three weeks. The trial judge’s findings about the nature and extent of the neglect that P.A.V. experienced over a lengthy period while in V.D.’s care, his needs and the type of parenting that he requires to meet those needs were amply supported by the evidence at trial. The lengthy litigation in this case has prevented permanency and long-term stability in P.A.V.’s life and precluded adoption efforts. We agree with the CAS that closure should be brought to this unfortunate chapter in P.A.V.’s life and that he should be placed for adoption without further delay.
[14] The appeal is therefore dismissed. We make no order as to costs.
“E.A. Cronk J.A.”
“R.G. Juriansz J.A.”
“L.B. Roberts J.A.”