WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — 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.

(9) Prohibition re identifying person charged — 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.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Court of Appeal for Ontario

Date: 2019-10-09

Docket: C67087

Judges: Lauwers, Fairburn and Zarnett JJ.A.

Parties

Between

Huron-Perth Children's Aid Society Applicant (Respondent)

and

J.L. D.L. N.M.O. O.C.L.

Respondents (Appellant/Respondents)

Counsel

• Brigitte Gratl, for the appellant J.L.
• D.L., acting in person
• Anne-Marie Tymec, for the respondent Huron-Perth Children's Aid Society
• Elizabeth McCarty and Ward Brownell, for respondent O.C.L. (Office of the Children's Lawyer)

Heard: September 24, 2019

On appeal from: The judgment of Justice Pamela Hebner of the Superior Court of Justice, dated May 21, 2019, allowing the appeal in part from the orders of Justice Robert W. Rogerson of the Ontario Court of Justice, dated January 20, 2017.

Reasons for Decision

I. Overview

[1] Together J.L. and D.L. ("the parents") have four children, currently 6, 9, 11 and 12-years of age. (D.L. is the step-father to the 12-year-old.) These four children have been in the legal care of the Huron-Perth Children's Aid Society ("the Society") since June 6, 2014 and are the subject of this appeal.

[2] A bifurcated trial took place before the Ontario Court of Justice, beginning in December 2014 and ending in October 2016. On April 28, 2015, the trial judge determined that the children were in need of protection pursuant to s. 37(2)(b)(i) and (ii) of the then Child and Family Services Act, R.S.O. 1990, c. C.11. On December 19, 2016, the trial judge made an order for the Crown wardship of all four children with no access to the parents.

[3] The parents appealed from the Crown wardship order, requesting the return of the children to their care. Although they also originally appealed from the finding that the children were in need of protection, they later abandoned that aspect of their appeal. On May 21, 2019, the appeal judge issued an order granting that appeal, but only to the extent of providing access between the parents and their children.

[4] The parents now appeal from the decision upholding the Crown wardship (now extended care) order and from the access order.

II. Adjournment Request

[5] The parents asked for an adjournment of the appeal. We dismissed that request with written reasons to follow. These are those reasons.

[6] J.L. claims that she has received inappropriate text messages from two Society workers. She says that the content of those messages demonstrate an animus on the part of the workers toward the parents. J.L.'s lawyer argues that the messages reveal that the Society workers have tried to intimidate her. For instance, some of the messages suggest that the parents are unfit to parent, should not waste the court's time, and should stop resisting the wardship order.

[7] The impugned workers deny that they are the authors of those messages. The Society reported the matter to the police, asking that there be an investigation into what they assert is a fraud that has compromised their workers' reputations. One of the workers voluntarily relinquished her phone to her supervisor to be locked away so that she could not be blamed for texts originating from it. After this occurred, J.L. asserted that messages from the worker were coming to her from another number that the Society knows nothing about.

[8] The parents say that this appeal should be adjourned pending the outcome of the police investigation. We do not agree.

[9] This matter has been going on for a very long time. At this point, the children have been in care for over five years. As the Office of the Children's Lawyer ("OCL") points out, the children are in need of some certainty in their lives. If this matter were to be adjourned pending completion of a police investigation, there is no telling how long the matter will take to resolve. We note that the parents have not reached out to the police to determine the timing of any such investigation or to offer their cooperation in order to move the investigation along expeditiously.

[10] Moreover, in our view, whatever the result of any police investigation, it would not affect the result of this appeal. As the Society submits, 14 Society workers have been involved with the family from the outset. Only two are implicated in the suggestion of inappropriate/false messages. One of these two impugned workers only became involved with this family quite recently, long after the Crown wardship (now extended care) order was made.

[11] In our view, even if the two impugned workers were discredited as the parents claim, we are satisfied that it would not affect the outcome of this appeal. There was ample evidence in addition to what was provided by these two workers to support the finding that the children were in continuing need of protection. The appropriateness of the extended care order is also independently supported. The children are all together in a home in which they have been thriving since 2015, while maintaining a relationship with their biological parents.

[12] An adjournment would clearly not be in these children's best interests.

[13] For these reasons, we denied the request to adjourn the appeal.

III. Grounds of Appeal

[14] J.L. raised a number of grounds of appeal. D.L. adopted her submissions on each of those grounds. D.L. also raised a ground of appeal specific to his own concerns.

(1) Whether the Appeal Judge Took the Fresh Evidence into Account

[15] The parents suggest that in upholding the Crown wardship order, the appeal judge erred by failing to take into account fresh evidence that had been filed on appeal. In particular, the parents placed before the appeal judge evidence that J.L. had given birth to a fifth child who remains in her care. In addition, there was fresh evidence about the parents' access visits with the children who had been placed in the care of the Society. The fresh evidence suggested that J.L. was in a better position to care for all of the children at the time of the appeal.

[16] We do not agree that the appeal judge erred in how she treated the fresh evidence.

[17] Read as a whole, it is clear that the appeal judge took all fresh evidence into account. The fact is that there was nothing about that evidence that persuaded or was capable of persuading the appeal judge that it was in the best interests of the children to be returned to their parents.

[18] Although the fresh evidence showed that J.L. had another child in her care – one who she is now parenting while living with her parents, after having separated from D.L. – the appeal judge concluded that in light of all of the other relevant evidence, the facts as elicited through the fresh evidence were insufficient to justify setting aside the Crown wardship order. Instead, she concluded that this evidence, along with the rest, supported a finding that the relationship between the parents and children was "meaningful and beneficial" and that the appeal should be allowed to the extent of overturning the "no access" order. We see no reason to interfere.

(2) The Children's Wishes

[19] The parents submit that the children have clearly stated their wishes to be returned to their parents. We do not agree that this position accurately captures the children's wishes, either as they were expressed in the past or as they are currently expressed.

[20] Because the best interests, protection and well-being of the children is paramount according to the legislation, we admit all of the evidence relevant to the children's interests on this appeal, including that filed by the OCL. As the children's legal representative, the OCL has a duty to attend to their interests. In fulfilling that duty, the OCL may call evidence and make submissions on behalf of the children: Ludwig v. Ludwig, 2019 ONCA 680, at para. 69.

[21] The OCL provided an affidavit from a clinical agent who canvassed the recent views of the children.

[22] The three eldest children have clearly expressed their preference to remain where they are living, all together, in a single foster home. Among other things, they speak of feeling safe, being taken care of, getting to play sports, attending school regularly, having friends, and wanting to live with their foster mother "forever".

[23] The youngest child who is six years of age has difficulties communicating. Although communication was attempted through the use of drawings, it was "challenging" to gain a sense of his views and preferences. Even so, we are satisfied that based on his progress after being placed within care, his best interests are currently being promoted.

[24] It is clear that the children have thrived since they have been in the Society's care. We would not give effect to this ground of appeal.

(3) Alleged Errors of Fact

[25] The parents claim that the trial judge made numerous errors of fact, including those relating to the children's actual condition, whether they were sent to school with insufficient food, the length of time that they had head lice, their level of hygiene, and their lack of supervision.

[26] The appeal judge carefully considered each alleged error of fact. She applied the correct test, considering not only whether there was a palpable error, but whether any error was overriding in nature. Although she concluded that the trial judge erred in two factual findings, specifically relating to how the parents dealt with one child's constipation and another child's developmental difficulties, the appeal judge was satisfied that the factual errors were not overriding in nature.

[27] We see no error in the appeal judge's approach on this point, or in her conclusion that there "was a plethora of evidence to support" the ultimate conclusion that the parents do not possess the "necessary parenting ability to provide for the physical, mental and emotional needs of the children."

(4) The Allegation of Sexual Impropriety

[28] D.L. raises a concern that the trial judge improperly considered a dated allegation against him of sexual impropriety. He says that he cannot recall the alleged event and that, in any event, the alleged event occurred when he was a youth and is covered by the Youth Criminal Justice Act, S.C. 2002, c. 1. He argues that his constitutional rights have been infringed by the use of that information.

[29] We see no basis upon which this ground of appeal can succeed. Although the trial judge mentioned the allegation of sexual impropriety, his reasons in no way turned on that issue. Moreover, the appeal judge specifically distanced herself from that information. It played virtually no role in the decision-making process.

IV. Conclusion

[30] The children went into the Society's care many years ago now. By all accounts they are thriving. That was not the case when they were in their parents' care. They have clearly stated their wishes, which include keeping in contact with their parents, while at the same time staying within the safe and caring environment they have come to know as home. The appeal judge's order properly addressed the children's best interests, kept them within the stability of their home, and allowed them to retain a connection to their heritage and parents. That order is responsive to the children's needs.

[31] Having regard to all of the circumstances, including the fresh evidence filed on appeal, we see no error in the appeal judge's approach. We would not interfere with her order.

P. Lauwers J.A.

Fairburn J.A.

B. Zarnett J.A.