WARNING

THIS IS AN APPEAL UNDER THE

a. 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: 2017 ONCA 573

Date: 2017-07-05

Docket: C63291

Judges: Sharpe, Lauwers and Miller JJ.A.

Between

K.F. and D.T. Appellants

and

Family and Children's Services of Kitchener Waterloo Respondents

Counsel:

• Gloria Ichim, for the appellants
• Jeffrey Boich, for the respondents

Heard: June 29, 2017

On appeal from: the order of Justice G.A. Campbell of the Superior Court of Justice, dated January 3, 2017, dismissing an appeal from the order of Justice P.J. Borghesan of the Ontario Court of Justice dated December 1, 2015.

Reasons for Decision

[1] This is an appeal from an order of a Superior Court judge dismissing an appeal from an order of the Ontario Court of Justice making an order of Crown wardship with no access by either parent. The child was apprehended at the age of eight weeks at the same time as the apprehension of three of the appellant's other children. The appellant has a long-standing history with the respondent. The immediate reason for the apprehension was that the older children expressed a fear of violence by the appellant's then partner, the father of the child who is the subject of this appeal. The child has now been in the custody of prospective adoptive parents for approximately four years.

[2] In oral submissions, counsel for the appellant effectively abandoned the appeal from the order of Crown wardship. We add that after careful review of the matter, including the written arguments made in the appellant's factum, we have concluded that there was no error on the part of the trial judge or on the part of the Superior Court Appeal Judge that would justify this Court in disturbing the order of Crown wardship.

[3] Accordingly, we are left with the issue of access.

A. Fresh Evidence

[4] Fresh evidence in child protection matters is contemplated by the Child and Family Services Act, R.S.O. 1990, c. C.11, s. 69(6). The test for admission is set out in Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 at 190:

(a) could the evidence have been previously adduced;

(b) is the evidence highly relevant;

(c) is the evidence potentially decisive to a best interest determination; and

(d) is the evidence credible.

[5] The respondent seeks to introduce the affidavit of a CAS services worker providing up to date information on the circumstances of the child. This is the type of evidence contemplated by s. 69(6) (see Children's Aid Society of Owen Sound v. R.D (2003), 44 RFL (5th) 43; 178 OAC 69 at paras 13 and 14) and we admit it.

[6] The appellant also seeks to introduce fresh evidence.

[7] As the CAS fresh evidence relates to the circumstances of the appellant's access visits, in fairness, it is appropriate for us to admit the video recordings of the access visits tendered by the appellant.

[8] The affidavit of Dr. Kathy Keefe is more problematic. The appellant was being counselled by Dr. Keefe since January 2016 yet no notice of the appellant's intention to file this affidavit was provided until less than two weeks prior to the hearing of the appeal. The appellant fails to provide an adequate foundation to assess Dr. Keefe's expertise with respect to the general view she expresses regarding open adoption. However, with these qualifications in mind we have reviewed Dr. Keefe's affidavit and explain below why it does not persuade us that this appeal must be allowed.

B. Access

[9] Section 59(2.1) provides that when a Crown wardship order is made, no order of access shall be made unless (a) the relationship between the person and the child is meaningful and beneficial to the child; and (b) the ordered access will not impair the child's future opportunities for adoption. The onus for establishing those factors rests with the party seeking access.

[10] The trial judge found that there was no evidence that the relationship between the child and the appellant was beneficial to the child. That finding, made when the child was two and one half years old, is entitled to deference in this court. The Superior Court Appeal Judge carefully considered the issue of access and came to the same conclusion.

[11] We are not persuaded that there is any basis for us to interfere with those findings.

[12] The appellant points to certain alleged flaws in Dr. Amin's assessment of K.F.'s mental state, in particular, the fact that Dr. Amin unduly restricted the list of persons he interviewed. The trial judge was aware of the alleged deficiencies in Dr. Amin's assessment and took them into account when considering his evidence. Where the trial judge accepted his evidence, she found corroboration in other evidence. This is an appeal, not a new trial, and we see no reason upon which we could reverse the finding of the trial judge.

[13] The trial judge was also aware of the appellant's complaints regarding the CAS workers. We are not persuaded that breakdown in the appellant's relationship with the CAS workers was the fault of the CAS. Moreover, the issue is not who is at fault but would it be in the best interest of this child to have access to the appellant. The alleged misconduct of the CAS does not assist the appellant in proving that the test for access has been satisfied.

[14] Neither the video of the exit visit nor the Keefe affidavit provide a sufficient basis to disturb the findings of the trial and appeal judges that the appellant failed to show that she should have access despite Crown wardship on the basis that the relationship between the person and the child is meaningful and beneficial to the child.

[15] The video shows that the appellant is able to deal with the child in a calm and patient manner. Arguably, the video shows that the appellant would enjoy a continuing relationship with the child but that is not the legal test. In our view, the video falls well short of demonstrating that despite Crown wardship the relationship between the person and the child is meaningful and beneficial to the child.

[16] Dr. Keefe has not seen the child and, as she herself points out, on the basis of her observation of the appellant, "it is not possible to accurately evaluate the emotional significance and meaningfulness of the relationship for [the child], who is 4 years old". This significantly limits the force of her evidence on the issue we must decide. Any critique of Dr. Amin's report could and should have been advanced at trial. Her opinion on the merits of open adoption amounts to a criticism of the current statutory regime and the presumption of no access that it creates. We are bound to apply the statute not Dr. Keefe's opinion as to its merits.

C. Disposition

[17] Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A.

P. Lauwers J.A.

B.W. Miller J.A.