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 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 OF APPEAL FOR ONTARIO
CITATION: Children's Aid Society of Toronto v. S.A.P., 2020 ONCA 208
DATE: 20200316
DOCKET: C67678
Rouleau, Hourigan and Roberts JJ.A.
BETWEEN
Children’s Aid Society of Toronto
Applicant/Respondent on Appeal (Respondent)
and
S.A.P.
Respondent/Appellant (Appellant)
and
M.I.
Respondent on Appeal (Respondent)
and
OCL
Respondent on Appeal (Respondent)
Mark Feigenbaum, for the appellant
Kenneth Atkinson, for the respondent Children’s Aid Society of Toronto
Andrew Sudano and Robert Shawyer, for the respondent M.I.
Jane Long, for the respondent Office of the Children’s Lawyer
Heard and released orally: March 11, 2020
On appeal from the order of Justice Sharon Shore of the Superior Court of Justice, dated June 7, 2019, with reasons reported at 2019 ONSC 3482, dismissing an appeal from the order of Justice Manjusha Pawagi of the Ontario Court of Justice, dated February 14, 2018.
REASONS FOR DECISION
[1] The appellant’s two sons, J.P.F. and J.I., were apprehended and eventually ordered into the care of M.I., the stepfather of J.P.F. and the father of J.I. The Children’s Aid Society of Toronto (the “CAS”) proposed that the children be placed with M.I. permanently while the appellant sought to regain custody under the supervision of the CAS. After trial in the Ontario Court of Justice, the judge ordered that the children remain with M.I. The appellant’s appeal to the Superior Court of Justice was dismissed.
[2] On appeal to this court, the appellant raises three main grounds of appeal. She argues the trial judge:
erred in concluding that there was a risk of emotional harm if the children moved homes in the absence of any expert evidence as to the existence of such a risk;
failed to adequately consider the many steps taken by the appellant to improve her circumstances and whether, in light of these improved circumstances the children could be returned to her care with appropriate safeguards; and
failed to adequately consider MI’s criminal history and violent behaviour.
[3] In our view the appeal should be dismissed.
[4] As to the first ground, the appellant argues that, in the absence of expert evidence, the CAS had not met its burden to show that the children would likely suffer a risk of emotional harm. Under s. 37(2)(f) of the Child and Family Services Act, R.S.O. 1990, c. C.11,[^1] not every type and severity of emotional harm was sufficient to establish emotional harm justifying state intervention. She maintains that, except in the rarest of cases, expert evidence on this point is required. In the appellant’s submission, the trial judge’s conclusion on harm is conclusory and insufficient on this point and, given the absence of expert evidence, the record does not support the conclusion of emotional harm requiring state intervention nor does it overcome the presumption in s. 57(3) that the children ought to be returned to her care.
[5] We reject this ground of appeal.
[6] The issue of whether the children were in need of protection had been determined on consent of the parties prior to trial. A fresh finding of a need for protection pursuant to s. 37 did not have to be made. The issue before the trial judge was the appropriate disposition given the earlier finding of a need for protection. It is in reaching her conclusion on the appropriate disposition that the trial judge found that the order that the children remain with M.I. was necessary to protect them in the future. As found by the trial judge, there was a risk of emotional harm if the children were removed from M.I. who had been their long-term caregiver. That finding was well supported in the evidence and is entitled to deference.
[7] With respect to the second and third grounds of appeal, whether the children could be returned to the appellant with appropriate safeguards given her improved circumstances and the appropriate weight given to M.I.’s criminal history and behaviour, both of these were specifically addressed by the trial judge in her reasons. We see no basis to interfere with the weight the trial judge placed on them nor how she balanced the various factors in coming to her determination that the children’s best interests were served by their remaining with M.I.
[8] For these reasons, we dismiss the appeal.
“Paul Rouleau J.A.”
“C.W. Hourigan J.A.”
“L.B. Roberts J.A.”
[^1]: This statute was repealed and replaced by the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, on April 30, 2018, subsequent to the trial judge’s decision.