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 Information

Court of Appeal for Ontario

Date: 2017-02-22

Docket: M47470 (C63291)

Pardu J.A. (In Chambers)

Parties

Between

The Children's Aid Society of the Regional Municipality of Waterloo Applicant (Respondent)

and

K.F. Respondent (Appellant)

Counsel

Gloria Ichim, for the appellant

Jeffrey W. Boich, for the respondent

Heard: February 10, 2017

Endorsement

Introduction

[1] The appellant K.F. moves for interim access pending the hearing of an appeal to this court from the dismissal by the Superior Court of Justice of her appeal from a decision of the initial application judge making her son a Crown ward, without access.

[2] She submits that there is a serious issue to be determined on appeal – namely, whether the Superior Court appellate judgment and the decision of the application judge were correct – and that irreparable harm may occur if access is not continued.

A. Factual Background

[3] Z.A.F. was apprehended by the respondent Children's Aid Society on July 27, 2013 at about eight weeks of age and has remained in the care of the same foster parents since that date, about three and a half years.

[4] The Society subsequently brought a protection application in the Ontario Court of Justice under Part III of the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"), which was heard between May and June of 2015.

[5] Following a twelve-day trial, in reasons for judgment released December 1, 2015, the application judge made an order of Crown wardship with no access by either the father or the mother.

[6] The application judge found that Z.A.F. was in need of protection. She accepted the expert testimony that the quality of the appellant's parenting was hampered by her mental health issues, which made the appellant lack insight into Z.A.F.'s emotional and developmental needs. The appellant had also exposed Z.A.F. to adult conflict and domestic violence between her and her partners.

[7] The application judge also reviewed some of the expert evidence about the bond between the appellant and Z.A.F. She found that, although there was some level of affection expressed, there was no strong emotional bond between them, and the appellant at times exhibited emotional removal or detachment from Z.A.F.

[8] Given these difficulties, as well as the unlikelihood that the appellant would make the changes necessary to become a successful parent and lacked significant community or family support, the application judge found that a supervision order would not adequately protect the child.

[9] After concluding that the child's best interests required a Crown wardship order, the application judge held that there was no basis for an access order. Z.A.F. lived in the care of foster parents for most of his life, and there was no evidence that the relationship between K.F. or her partner was meaningful or beneficial.

[10] The appellant appealed this decision to the Superior Court of Justice. She brought a motion for a stay pending that appeal, as well as an order for access pending the appeal.

[11] On February 22, 2016, the Superior Court motion judge ordered interim access pending the appeal for two hours once a week, to be monitored by the Society until disposal of the appeal.

[12] This access continued until the mother's appeal was dismissed by the Superior Court appeal judge on January 3, 2017.

[13] The appeal judge concluded, at para. 21 of his reasons, that "the trial judge was correct in her decision; made the reasonable and proper inferences and findings based upon all of the evidence before her; and that such inferences and findings were reasonably drawn thereon; and that she made no palpable nor overriding error in fact; and was correct in her interpretation of the law." On the appeal, the appellant's argument was essentially that the trial judge should have made different findings of fact.

[14] The appeal judge dealt with the issue of access following an order for Crown wardship at paras. 28 and 33-35:

This issue was argued at trial and the field "re-plowed" at the appeal hearing. Despite certain further evidence being allowed and considered at the Appeal Hearing and despite the Agency filing uncontroverted (or even challenged) evidence regarding the quality of or impact upon Z.A.F. of continued, weekly, supervised access to the Appellant, no new (or any) evidence was offered by the Appellant that access was either "meaningful or beneficial" to Z.A.F.. It was argued by Agency counsel that continued access did indeed impair the child's opportunity for adoption (despite the 2011 amendments to the Act). I agree with this submission.

In this case, the trial judge carefully considered the evidence, the submissions, applied the legislation and addressed the s. 59(2.1) criteria and came to an appropriate decision.

No new evidence was offered on this issue other than counsel's ingenious speculation that weekly access (since the Sloan J. Order of February 22, 2016) has created in his mind a routine, so therefore continued access must be "meaningful" to Z.A.F.. Despite that "leap", even if it were logical, it is refuted by the further evidence of the Agency workers regarding the nature of Z.A.F.'s behaviour (and K.F.'s) during the imposed access visits.

On the evidence, I find that continued access is neither meaningful nor beneficial to Z.F. and entirely impairs and obstructs Z.A.F.'s possible placement for adoption. It is not in his interest ("best" or "otherwise") to continue that invasion into his life.

[15] There was a good-bye visit between K.F. and Z.A.F. on January 9, 2017.

B. Analysis

[16] Section 59(2.1) of the CFSA sets out the conditions which must be satisfied before an access order can be made in favour of a parent, following an order for Crown wardship:

Access: Crown ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

[17] Once a decision is made for Crown wardship, the burden of persuading a court that an access order should be made, and that the statutory conditions are met, is on the parent seeking access: see Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at p. 207; and Children's Aid Society of Toronto v. P. (D.) (2006), 19 R.F.L. (6th) 267 (Ont. C.A.), at para. 8.

[18] It is of course a very serious matter for the appellant to have had a Crown wardship order made without access to her child. I am not persuaded, however, that there is a substantial ground of appeal raised in this court. Again, the appellant takes issue with the factual findings made by the trial application judge and the appeal judge on the fresh evidence.

[19] I have examined the appellant's Notice of Appeal in this court. She requests that the child be placed with her subject only to a six-month supervision order. It is difficult to see how that relief could be granted in the circumstances of this case. She asks in the alternative that the child be placed with an 18-year-old sibling. This was not advanced at trial. She raises constitutional arguments suggesting that various sections of the CFSA are void on the ground they violate rights guaranteed by the Charter. These arguments were not advanced at trial.

[20] I accept that the appellant's onus to show that there are serious issues raised by the appeal is not a heavy one, but I do have difficulty in concluding that there is arguable merit in one or more of the grounds of her appeal. I recognize that a motion such as this does not permit a full examination of the grounds of appeal.

[21] There are findings by two judges that no order for access should be made on the ground that the mother had not shown that the relationship between the person and the child is beneficial and meaningful to the child. A decision whether to grant access pending appeal must be based on the best interests of the child.

[22] There has been a good-bye visit. Only a month has elapsed since then. Should access be resumed until this appeal is heard and decided?

[23] I have reviewed the fresh evidence that was before the appeal judge describing in detail the interaction between the mother and her child during the weekly two hour access visits. I am not persuaded that those visits are in the child's best interests or that the child will suffer irreparable harm if there is no access until this appeal is decided. This court gives priority to appeals from decisions making Crown wardship orders and this appeal should be able to be heard within months. All transcripts have been prepared. In the event the appellant succeeds on appeal in obtaining an order for access to her child, I am not satisfied that a resumption of access would be traumatic for the child given the nature of their relationship.

[24] For these reasons, the motion for access to the child pending the hearing of the appeal is dismissed.

G. Pardu J.A.