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
Citation: v. J.V., 2017 ONCA 194
Date: March 7, 2017
Docket: C62554
Judges: MacFarland, van Rensburg and Huscroft JJ.A.
Parties
Between
The Children's Aid Society of the Regional Municipality of Waterloo Applicant (Respondent on Appeal)
and
J.V. and M.V. (Appellants on Appeal)
and
C.V. Respondent (Respondent on Appeal)
and
J.S. Respondent (Respondent on Appeal)
Counsel
Brigitte Gratl, for the appellants, J.V. and M.V.
Jeff W. Boich, for the respondent, the Children's Aid Society of the Regional Municipality of Waterloo
Hearing and Appeal
Heard: February 15, 2017
On appeal from: the order of Justice Robert D. Reilly of the Superior Court of Justice, dated February 12, 2016.
Endorsement
[1] Nature of Appeal
[1] This is an appeal by J.V. and M.V. from the order of Reilly J. dismissing an appeal by C.V. and J.V. and M.V. from the judgment of Neill J. declaring the child, A.M.D.V. be made a Crown ward, and placed in the care of the Children's Aid Society of the Regional Municipality of Waterloo, (the "Society") without access.
[2] Background Facts
[2] A.M.D.V. ("the child") was born on March 2, 2013 and she is now four years of age. Her biological parents are C.V. and J.S., neither of whom participated in this appeal.
[3] The child was apprehended at birth by the Society and placed in a temporary foster home. At the end of November 2013, the child was placed in a foster home with a family who have indicated a desire to adopt her. The child has remained in this home continuously since November 2013 with her foster parents and their son.
[4] After the child was apprehended, her biological parents and her maternal grandparents exercised rights of access and each saw the child for about two hours per week until February 2015. At that time the judgment of Neill J. was released and access ended. There was one further visit in March 2015, which has been described as a "goodbye visit". Save for a chance encounter at a local Walmart store between the grandparents and the foster parents, the appellants have not seen the child since March 2015. The appellants' motions for interim access pending appeal have been dismissed.
A. Fresh Evidence
[5] Both the appellants and the respondent seek to file fresh evidence on this appeal.
[6] The appellants have filed a voluminous motion record which they seek to have admitted as fresh evidence. There are affidavits from each of the appellants as well as the biological mother, C.V., who is not a party to this appeal, also filed in response to the Society's fresh evidence motion.
[7] The appellants' proposed fresh evidence is described in the notice of motion as follows:
a. Information with respect to deficiencies in the SAFE assessment home study process that led to the refusal of the appellants as adoptive parents; the information came to light only in the context of a hearing before the Child and Family Services Review Board and the appellants' subsequent research into the SAFE assessment procedure.
b. The evidence relates to both the appellants and the Plan of Care now submitted for consideration by the appellant, J.V.'s, sister G.R. and her husband G.C.
[8] The appellants before this court were not parties when this matter proceeded before Neill J. They were advised by the Society early on in the process to seek independent legal advice and did so. Nevertheless, not until the appeal to the Superior Court of Justice did they seek to be added as parties. The record is replete with references to the Society's early efforts to have the appellants submit a permanent plan of care, but they resisted. Ms. Lennon, the Society worker responsible for the completion of the SAFE protocol, explained fully the Society's concerns about the appellants' plan of care and the difficulties in relation to the involvement of C.V. with them and the child. As the trial judge noted in paragraph 54 of her reasons:
Ms. Lennon did not complete the entire SAFE assessment as concerns were raised regarding the grandparents' permanency plan early on in the assessment that the Society believed could not be mitigated and completing the entire assessment would not have changed the outcome. As the assessment was terminated early and the grandparents did not complete the required training, by Ministry standards they could not be approved as adoptive parents.
[9] In September 2013, the appellants were given a letter explaining why the Society would not support a placement with them.
[10] C.V., the biological mother and the appellants' adopted daughter, has Alcohol Related Neurodevelopmental Disorder (ARND), a form of permanent brain damage due to prenatal exposure to alcohol which, through no fault of her own, makes her incapable of parenting her child.
[11] The appellants initially resisted putting in a plan of their own. They wanted C.V. to have custody of the child and they would supervise.
[12] The trial judge succinctly set out the situation at the time of the hearing at paragraph 5 of her reasons as follows:
…On March 5, 2013, the grandparents put forth a plan for the care of A.V. whereby the mother would continue to reside in their house and essentially the mother would be supervised at all times with the child either by the grandparents or other friends/family members. The grandparents then amended their plan for A.V. on June 25, 2013 requesting a custody order pursuant to s. 57.1 of the Child and Family Services Act ("the Act") but stated they were also willing to adopt A.V.
[13] The Society's position was also set out at paragraph 8 of those reasons:
The Society's position is that it is not in A.V.'s best interest to be placed in the care of her grandparents due to numerous concerns, including the conflict between the mother and grandparents, concerns that their plan was not permanent as there was a risk that they would place A.V. back with her mother at some point in the future, the grandfather's lack of motivation to put forth a plan for A.V., the grandparent's lack of support for their plan, particularly from their three adult children and concerns relating to their age and the grandfather's health. Therefore, the Society is seeking an order for crown wardship without access, with a plan for A.V. to be adopted by her current foster parents with whom she has been residing since November 29, 2013.
[14] It is fair to say that the appellants' plans have been evolving over time. There is no doubt, however, that before the hearing in 2015, they were aware of the Society's concerns, and why the SAFE protocol had not been completed. They had received legal advice but did not seek to become parties to the hearing before Neill J. Only after her decision did they seek to become parties to the appeal and retain counsel.
[15] The issue with respect to the appellants' suitability as permanent caregivers for the child was front and centre at the hearing before Neill J. Any and all issues in relation to the SAFE protocol could and should have been raised at that time and some were. We do not accept the appellants' contention that they only became aware of the deficiencies in the SAFE home study at the hearing before the Child and Family Services Review Board.
[16] Ms. Lennon's evidence before Neill J. belies that suggestion. Any such proposed evidence ought to have been presented at the hearing before Neill J. and it is simply too late to raise additional matters in relation to that evidence now – at the hearing of the second appeal from the determination of Neill J. We do not therefore admit that evidence on this appeal.
[17] Similarly, the appellants now submit a further plan of care for the child in response to the trial judgment and seek to cure the deficiencies the trial court found with their plan of care over the course of the nine day hearing in May and September of 2014.
[18] While we do not doubt that the appellants mean well, it is simply not in this child's best interests to have this matter continue as the appellants refine and change their plans. A.M.D.V. was apprehended at birth and she just celebrated her fourth birthday. She is with a family who loves her and wants to adopt her and she has been with them since she was ten months old. She knows no other home. She is entitled to permanence in her life.
[19] The new plan of care proposed in the fresh evidence includes the involvement of two persons, whom the child has never met. However, well-intentioned, it is simply too late in the process to put forward an alternate plan of care at this late stage.
[20] For these reasons, we would not admit the fresh evidence proposed by the appellants. We turn to the grounds of appeal raised.
B. Sufficiency of Reasons
[21] While the reasons of the appeal judge are brief, read as a whole, as we are required to do, it seems that what he has done, is to adopt the trial judge's reasons as his own. In such circumstances, we are put in the position of in effect sitting on appeal from the decision of Neill J. This remedy has been adopted by this court on previous occasions: see R. v. Minuskin, [2003], O.J. No. 523 (C.A.).
[22] The parties argued the appeal on this basis and the interests of justice here require that the appeal proceed on this basis rather than sending it back to the intermediate appellate court for a further hearing.
C. Capacity
[23] The appellants argue that the hearing before Neill J. resulted in "a miscarriage of justice" because C.V., who along with the child's biological father were the only parties to that proceeding, was in effect incompetent and ought to have been represented by a litigation guardian. It was also suggested that she may have lacked capacity to consent in the course of the child protection proceedings. In this respect, counsel relies on a report of Dr. Louise Scott dated March 23, 2011. Dr. Scott is a pediatric neuropsychologist, who completed a neuropsychological assessment "as per the Canadian FASD Diagnostic Guidelines as well as via current Western Canadian Best Practices" on C.V. when she was 15 years of age.
[24] At the fourth page, under the heading "Emotional Development", the report reads:
Taken together these factors, especially within the context of the results of all parts of this assessment, support that C.V. requires access to an external brain at all times and in all settings to ensure her safety. Further, she is unable to appreciate the consequences of any action (her own and those of others) and to appreciate the consequences of her decisions/actions.
Should she ever encounter the Criminal Justice System, all must be aware of the diagnosis, as well as that C.V. therefore is unable to appropriately instruct counsel so as to participate in her own defence.
[25] Dr. Scott was not called as a witness at trial. Her report was filed with the court.
[26] We note firstly, that Dr. Scott did not address competence nor was she asked to do so.
[27] Secondly, the report speaks to an "inability to appropriately instruct counsel", not an inability to instruct counsel.
[28] Thirdly, C.V. at the time of trial was 19 years of age and was represented at trial by experienced counsel. No issue was raised at that time about her competence or capacity to instruct counsel and the trial proceeded over nine days in May and September of 2014. No issue was raised about C.V.'s capacity until the hearing of the appeal before this court. Capacity is presumed until the presumption is rebutted and on this record all of the evidence favours the conclusion that C.V. had capacity at the time of trial. She was capable of agreeing that her child was in need of protection. Indeed it has been her position throughout that she wants the child placed with the appellants and wants to have access to her.
[29] It is to be remembered that neither C.V. nor the appellants put forth a plan for the child prior to her birth. As late as the day before she was born, the appellant, J.V., was still questioning the Society worker, Cynthia Flynn, as to why C.V. could not just take anger management courses to enable her to parent. The child was born the next day, March 2, 2013, and without a plan in place, the Society had no choice but to apprehend her and place her in their care.
[30] There is no basis to challenge the validity of the proceedings for lack of capacity on C.V.'s part, particularly at this late stage. We are satisfied on the overwhelming preponderance of evidence before the trial judge that the proceedings were regularly constituted and on this ground there is no basis to order a new trial.
D. Constitutional Issues
[31] The constitutional issues are raised for the first time on appeal. None were raised before the trial judge.
[32] The appeal judge at paragraph 8 of his reasons dealt with the constitutional issues raised as follows:
[8] I have also carefully considered the two Notices of Constitutional Question filed by C.V. (dated December 15, 2015) and by M.V. and J.V. (dated August 12, 2015). To summarize their respective positions, C.V., M.V. and J.V. raise what they claim are constitutional issues involving essentially (though for different reasons) violations of their rights guaranteed by section 15 of The Charter of Rights and Freedoms. With great respect to C.V., J.V. and M.V., I conclude there is absolutely no foundation whatsoever to the concerns they express. There was no violation of their constitutional rights based on C.V.'s status as adoptee or a person suffering from a disability, as a result of the age of the maternal grandparents or for any other reason. Any relief sought pursuant to the constitutional questions raised is denied.
[33] In addition to endorsing the appeal judge's finding, we note that no constitutional issue or issues were raised in the trial court and there is no record created there in reference to these issues which were raised for the first time on appeal. It is rare that an appellate court will entertain such issues when they are raised there for the first time.
[34] We note in any event that the record below contains no evidence that would support any allegation that C.V. or the appellants suffered discriminatory treatment at the hands of the Society or anyone else.
[35] We reject this ground of appeal.
E. Outdated Report of Dr. Scott
[36] While relying on Dr. Scott's report to support their argument that C.V. lacked capacity at the trial and ought to have been represented there by a litigation guardian, the appellants complain that the report is outdated and unreliable in relation to the diagnosis for C.V. They fault the Society for its failure to obtain an updated report from Dr. Scott, which they argue, would reflect the positive changes C.V. has made in her life since the child's birth.
[37] There is no doubt that C.V. has worked hard to improve her life since the child's birth. In December 2013, she moved out of the appellants' home and moved in with J.S. She and the appellants were hopeful that if she moved out, the difficulties that were foreseen by the Society in relation to the conflicts between C.V. and the appellant, J.V., would diminish or disappear.
[38] There were long-standing issues of conflict between C.V. and J.V. and some violence at times, when the police had to be involved. The Society was concerned, and reasonably so in our view, that this conflict was not in the child's best interests.
[39] As it is said, history is generally a good predictor of the future. It was not "utter speculation" on the society's part to be concerned about future incidents of violence and concern involving C.V. and J.V. C.V.'s disability is permanent, it is a pervasive developmental disorder. While C.V. has made commendable progress, she will always suffer from the disability outlined in Dr. Scott's report. Any update will not change her permanent deficits. None of this, of course, is C.V.'s fault. The brain damage she sustained in utero was as the result of her birth mother's use of alcohol during her pregnancy. An updated report from Dr. Scott would have changed nothing.
[40] In any event, in addition to Dr. Scott's report, the appellant, J.V., testified about the difficulties she and the appellant, M.V., had with C.V. when she lived with them. Some of these concerns are set out in paragraph 60 of the trial judge's reasons.
[41] We do not give effect to this ground of appeal.
F. The Society Moved Precipitously to Make the Child a Crown Ward
[42] The Society had little choice but to apprehend the child at birth. Despite efforts to have the appellants file a permanent plan for the child, they were reluctant to do so. The appellants held out hope that C.V. would be able to have custody of the child and that they would assist and supervise her. That plan was unrealistic and provided no permanence for the child.
[43] The Society waited for several months before filing their application for a declaration of Crown wardship, no access. They hoped a realistic permanent plan that they could approve, would be forthcoming, but none was.
[44] The Society wanted a permanent home for the child. Their application was heard in May and September of 2014, by which time the child was 18 months old.
[45] By this time, although no formal plan had been presented, the appellants indicated their willingness to adopt the child. They said they would continue to permit contact between her and her birth parents. This was the only plan that was before the trial judge and was the plan that was advocated by C.V. and J.S. The appellants suffered no prejudice by the fact they were not parties when this matter proceeded before Neill J. They both testified and it was their plan that the trial judge considered in her determination of the best interests of the child. The record simply does not support the appellants' argument that the Society's actions were precipitous. Further, the record negates the allegation that the Society had decided at the very outset when the child was born that she would be made a Crown ward and did not seriously consider the appellants' desire to parent the child. To the contrary, the evidence before Neill J. discloses the efforts the Society workers made both before and after the child's birth to encourage the appellants to put forward a permanent plan and to seek legal advice. They did obtain legal advice, but a plan was only put forward during the trial.
[46] The trial judge considered the family plan at paragraphs 136 through 139 of her reasons. She considered all of the evidence and concluded that the appellants' plan was not workable because it anticipated the continued involvement of C.V. with the child – see paragraph 124 of the trial judge's reasons.
[47] In our view, the trial judge carefully considered the evidence and her findings are all soundly based on the evidence before her. The fresh evidence filed by the Society is filed for the purpose only of bringing the court up to date in relation to the child. She is doing extremely well in her foster home and is a happy and loveable child who is very much attached to her foster family.
[48] There is no doubt that the appellants and C.V. love the child very much. The trial judge concluded, however, that their plan was not in the best interests of the child. It was in her interest that an order for Crown wardship be made and that she remain with her foster parents, where she has been since she was ten months of age and who are anxious to adopt her.
[49] We agree with her conclusion. The appeal is therefore dismissed.
Released: March 7, 2017
"JMF"
"J. MacFarland J.A."
"K. van Rensburg J.A."
"Grant Huscroft J.A."