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: Bruce Grey Child and Family Services v. A.M., 2020 ONCA 525

DATE: 20200825

DOCKET: C68184

Feldman, van Rensburg and Thorburn JJ.A.

BETWEEN

Bruce Grey Child and Family Services

Applicant (Respondent)

and

A.M.

Respondent (Appellant)

and

A.V.S.

Respondent

A.M., acting in person

Cory B. Deyarmond for the respondent, Bruce Grey Child and Family Services

Elizabeth McCarty and H. Jane Robertson for the respondent, Office of the Children’s Lawyer

Heard: July 17, 2020 by video conference

On appeal from the order of Justice Francine Van Melle of the Superior Court of Justice, dated January 29, 2020, with reasons reported at 2020 ONSC 515, affirming the final order of Hardman J. of the Ontario Court of Justice, dated December 13, 2018.

Thorburn J.A.:

A. OVERVIEW

[1] This is an appeal of an order of the Superior Court that affirmed child protection orders made by the trial judge.

[2] The appellant has been involved with the family since C. was about four years old and before R. was born. There were periods when he lived with both children and R.’s biological mother, A.V.S. (“R.’s mother”). When he didn’t, he says he routinely visited them on weekends and helped the family in times of crisis.

[3] The trial judge found that two brothers, R., now almost 12 years old, and C., now 19 years old, were in need of protection. She placed R. into extended care with the Bruce Grey Child and Family Services (the “Society”), with access to and by his brother, C. C. was placed in the appellant A.M.’s care pursuant to a supervision order.

[4] The trial judge did not order access to R. by his mother, or by the appellant.

[5] The Office of the Children’s Lawyer (OCL) represented both children during the trial and represented R. on both appeals. C. was 18 at the time of the first appeal, making R. the sole subject of both appeals.

[6] R. has been in and out of care since July 2012. R. and his brother C. were in the temporary care and custody of the Society from July 31, 2012 to October 11, 2012, and again from July 15, 2015 to July 24, 2015. On July 24, 2015, the children were returned to the mother's care pursuant to a temporary order of the court. C. was placed with the appellant on November 18, 2015 and R. was placed in the care of the Society on December 18, 2015 where he has been ever since. This is well beyond the statutory time limit for remaining in the temporary care of the Children’s Aid Society, set out in s. 122 of the Act.

[7] While both the appellant and R.’s mother appealed the trial judge’s decision to the Superior Court, A.M. is the only appellant on this appeal.

[8] The appellant does not dispute the decision to place R. in the Society’s extended care so that he may be adopted by his current foster family, according to R.’s wishes.

[9] On this appeal, the appellant only seeks an order granting him access to R.

[10] R.’s mother addressed this court (not as an appellant) to say that she takes no issue with R.’s adoption by his foster parents but supports the appellant’s request for access to R. She outlined her long and difficult struggle with mental illness and substance abuse, which she says she is working hard to overcome.

[11] The Society takes the position that the appellant should not be granted access to R. This position is supported by the OCL.

[12] Fresh evidence on appeal to the Superior Court and on this appeal includes statements from R. that he wishes to move forward with his adoption and does not wish the appellant or his mother to be granted a right of access to him.

B. THE ISSUES

[13] The following issues will be addressed:

1. The appellant’s standing to appeal to the Superior Court of Justice;

2. Whether the Superior Court judge erred in upholding the trial judge’s decision not to issue an order granting the appellant access to R.; and

3. Whether this court should order access by the appellant to R. based on fresh or new evidence.

C. ANALYSIS OF THE ISSUES

The First Issue: Standing

[14] Section 104(2) of the Child, Youth and Family Services Act, S.O. 2017, c. 14, Sched. 1, (“the Act”), provides that where a child is placed in a society’s care and custody or supervision, any person may apply for access.

[15] Further to that provision, the trial judge added the appellant as a party to the disposition hearing. The appellant was given an opportunity to put forward a plan of care for both R. and C. at that time and the court accepted his plan of care for C, subject to Society supervision and the terms and conditions set out by the trial judge.

[16] At the same time, s. 121(1) of the Act specifically limits who may appeal to the Superior Court of Justice from a child protection order. It provides that an appeal to the Superior Court may only be brought by:

(a) the child, if the child is entitled to participate in the proceeding under subsection 79 (6) (child’s participation);

(b) any parent of the child;

(c) the person who had charge of the child immediately before intervention under this Part;

(d) a Director or local director; or

(e) in the case of a First Nations, Inuk or Métis child, a person described in clause (a), (b), (c) or (d) or a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

[17] None of the parties raised before the Superior Court of Justice or this court the issue of the appellant’s standing to appeal to the Superior Court of Justice.

[18] Instead, the issue was raised by this court prior to the hearing and the parties were requested to address it.

[19] In argument, the appellant took the position that he had a right to appeal the decision denying him access to R. since R. was living with him before being taken into care, he was in loco parentis (or in the place of a parent to R.), and he prepared a parenting plan at the disposition hearing. In essence, his position is that he qualified to appeal under s.121(1)(b) as “any parent of the child”.

[20] Neither the Society nor the OCL objected to the appellant’s standing on the first appeal, or before this court. Both took the position that in the circumstances of this case, it was in the child’s best interests for the appeal to be decided on the merits.

[21] The Act is silent on appeals to the Court of Appeal.

[22] In the absence of any explicit statutory provision, the Court of Appeal has jurisdiction to entertain any appeal from a final order of a judge of the Superior Court pursuant to s.6(1)(b) of the Courts of Justice Act. As a party to the appeal from the Superior Court order, the appellant has standing to appeal to this court. The issue therefore is only whether the appellant had standing on his appeal to the Superior Court of Justice.

[23] Placing limits on who may appeal a child protection order is consistent with the purpose of the Act set out at s.1(1) “to promote the best interests, protection and well-being of children.”

[24] Timely resolution is also important. Appeals significantly delay permanent placements such that, absent a close relationship to the child from the child’s perspective, an appeal is generally not in the child’s best interests. The Act refers at ss. 1 and 3 to a child’s “need for stable relationships within a family” and the desirability of “permanent plans”. The need for timely resolution is also reflected in the prohibition against orders that will result in a child over 6 remaining in the temporary care and custody of a society for a period exceeding 24 months: s. 122(1)(b).

[25] At the same time, “any parent” is entitled to appeal to the Superior Court and the definition of “parent” under s. 74(1) of the Act is expansive. It includes any “individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family”. It has been held to include persons such as foster parents: G.(C.) v. H.(J.), 1989 CanLII 8899 (ONCA), leave to appeal refused, [1990] S.C.C.A. No. 60.

[26] On an appeal to the Superior Court of Justice from a child protection order, the court should explicitly consider whether the person appealing has standing. Timely resolution is important in the life of a young child. Party status at an earlier proceeding does not necessarily entitle a person to appeal. Rather, standing to appeal to the Superior Court of Justice under s.121(1) of the Act should be explicitly assessed at the time of the appeal to the Superior Court and always through the lens of the child’s best interests.

[27] In this case, given the positions of all the parties, the possibility that the appellant might have qualified to appeal to the Superior Court of Justice under an inclusive interpretation of “parent”, and the importance of timely resolution, it is in the child’s best interests in this case, to accept that the appellant had standing to appeal to the court below and therefore to determine this appeal on the merits.

The Second Issue: Whether the Superior Court Erred in Upholding the Trial Judge’s Decision not to Issue an Order Granting the Appellant Access to R.

[28] R. has a long history of involvement with the Children’s Aid Society.

[29] R. and his older brother, C. were apprehended in July 2012 and again in July 2015. Both children were initially returned to their mother’s care. Shortly afterwards, C. was placed with the appellant. The Society re-apprehended R. in December 2015 and placed him in interim care.

The Trial Decision

[30] At trial, the proceedings were bifurcated. At the first stage, the trial judge found that both children were in need of protection. At the second stage, the trial judge considered the appropriate disposition for the children. The appellant was added as a party to the trial and was permitted to participate in the disposition portion.

[31] The appellant took the position that C. should remain with him but R. should be placed with his mother.

[32] The trial judge rejected R.’s mother’s plan of care and ordered that C. remain in the appellant’s care (as he was almost 18 years old), but that R. remain with his foster family. Neither the appellant nor R.’s mother was granted access to R.

[33] The trial judge recognized that the appellant had had a relationship with R. since 2005 and that R.’s position at trial was that his first choice was to be placed with the appellant and his brother C. The trial judge described the relationship between R. and the appellant in this way:

There is no question but that R feels affection toward AM. While they do not have regular contact, during one time that they were together R was eager to give AM a hug and appropriate sharing of conversation happened…

Throughout the trial, R has always had possible placement with AM on his list of preferences, be it ahead of his mother’s plan or second to it.

The foster mother also said that, although she has never observed them interact in person, the way R talks about AM suggests a “connection, caring relationship and positive interest” between the two. It appears that at times R refers to him [as] “Grandpa”.

[34] However, notwithstanding R.’s stated wishes at that time, the trial judge ordered that it would not be in R.’s best interests to be placed with the appellant.

[35] The trial judge held that the appellant could not be trusted to put the children’s needs ahead of R.’s mother’s needs. She relied on the assessor’s conclusion that the appellant failed to protect R. “from the unwanted chaos and conflict that the mother inflicted on them”, by allowing R.’s mother to visit without Society oversight against the terms of various court orders. These 2016 visits had traumatic consequences for C. On one occasion, R.’s mother attempted to hang herself and on some others, she was clearly under the influence of alcohol or illegal substances.

[36] The trial judge also found that R. has significant behavioural needs and requires community services that the appellant was not able to provide and oversee.

[37] Although the assessor recommended “some contact” between the appellant and R. based on R.’s stated fondness for the appellant, the trial judge held that there was no “beneficial and meaningful relationship between them” since the appellant had had no access to R. since R. was apprehended in 2015.

The Appeal to the Superior Court

[38] Both the appellant and R.’s mother appealed the disposition order to the Superior Court. The appeal judge held that the best interests of the child were paramount and that in this case, there was no error in making two different orders for the two children given that at the time of trial C. was 17 while R. was only 10 years old.

[39] In R.’s affidavit filed as fresh evidence in the appeal to the Superior Court, R. confirmed that he did not want to have access with A.M. or his mother and instead wished to be adopted by his foster family who expressed their desire to adopt him. In addition, the OCL, who represented him throughout, filed a letter from R. in which he asked the appellant to “stop fighting for me”.

[40] The appeal judge held that there was no evidence led by either appellant suggesting errors in the trial judge’s orders. The appeal judge held that the appellants’ fresh evidence would not have affected the decision of the trial judge and dismissed the appeal.

[41] The appeal judge was correct in finding no errors in the trial judge’s orders and in concluding that nothing in the fresh evidence on that appeal would have changed the appropriateness of those orders in respect of R.’s best interests.

The Third Issue: Whether this Court Should Order Access by the Appellant to R. Based on the Fresh or New Evidence

[42] The appellant claims as a new ground of appeal before this court that the trial judge erred in refusing to entertain allegations that the Children’s Aid Society failed to provide full disclosure by withholding a 2012 videotaped statement in which R.’s brother C. alleged he was abused by another child in foster care.

[43] There appears to be no videotape that exists. Even if there were, it is not relevant to R. because the allegations relate to C., not R., and the tape is over eight years old and has little bearing on R.’s present best interests.

[44] The appellant also claims he was prejudiced as the appeal judge did not find him in loco parentis. I disagree. Assuming without deciding that the appellant is in loco parentis, he was not prejudiced since his appeal was heard and decided on the merits based on R.’s best interests as required by the Act.

[45] On this appeal, the OCL also filed new evidence in the form of an affidavit from one of its clinicians advising that R. considers his foster family his family now, and he wants to be adopted by them. According to this affidavit, R. “really does not want to see [the appellant] because he was not a relative to him” and because he is trying to put his former life behind him.

[46] The best interests of the child require the court to “consider the child’s views and wishes” and fresh evidence should be admitted as evidence of such: CYFSA, s. 74(3) and Children’s Aid Society of Waterloo v. JLS, 2018 ONSC 7412, at paras. 13-16.

[47] Given the importance of the child’s best interests, this evidence is admitted.

[48] There is nothing in the fresh or new evidence that changes the appropriateness of the trial judge’s initial orders with respect to R.’s best interests. The fresh evidence demonstrates that, while R. is fond of the appellant, over a now extended period, he has expressed a preference to move forward with his adoption without an ongoing relationship with the appellant.

[49] We also note that in oral argument, counsel for the Society confirmed that absent an access order, R. may on his own initiative, choose to have contact with the appellant and/or his mother in the future. That has been explained to him, and at the moment he does not wish to do so.

D. CONCLUSION

[50] For the above reasons, I would dismiss the appeal. I would make no order as to costs.

Released: August 25, 2020 (“K.F.”)

“J.A. Thorburn J.A.”

“I agree. K. Feldman J.A.”

“I agree. K. van Rensburg J.A.”