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: Windsor-Essex Children’s Aid Society v. E.W., 2020 ONCA 682

DATE: 20201028

DOCKET: C67174

Doherty, Hoy and Jamal JJ.A.

BETWEEN

Windsor-Essex Children’s Aid Society

Respondent

(Respondent)

and

E.W.

Appellant

(Appellant)

Gordon S. Campbell, for the appellant

Ronald Burnett, for the respondent

Heard: September 18, 2020 by videoconference

On appeal from the order of Justice Gregory J. Verbeem of the Superior Court of Justice, dated June 4, 2019, with reasons reported at 2019 ONSC 3404, 29 R.F.L. (8th) 353, dismissing an appeal from the order of Justice Douglas W. Phillips of the Ontario Court of Justice, dated May 29, 2018.

Jamal J.A.:

[1] The appellant, E.W., appeals from the order of Verbeem J. of the Superior Court of Justice (“appeal judge”) made on June 4, 2019, dismissing an appeal from the order of Phillips J. of the Ontario Court of Justice (“trial judge”) made on May 29, 2018. The appellant’s two children, C.T-W. and T.J.E., were found in need of protection and placed in the extended care of the respondent, Windsor-Essex Children’s Aid Society (“Society”), with no order for her or the children’s respective biological fathers to have access to the children. The appellant also moves to adduce fresh evidence on appeal.

[2] For the reasons that follow, I would grant the motion to adduce fresh evidence. I would allow the appeal in part, only to the extent of granting the appellant an order for monthly photograph access to the children.

A. statutory framework

[3] The trial and the appeals were conducted under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”), which came into force on April 30, 2018. Among other things, the CYFSA replaced the concept of “Crown wardship” under the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) with the concept of “extended society care”, expanded the test for access to children in extended society care by focussing on the best interests of the children, and emphasized the special considerations applicable to children of Indigenous heritage: see Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at paras. 4, 31; Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, 151 O.R. (3d) 320, at paras. 20, 35; and L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 2.

[4] Under the CYFSA, the court in a child protection proceeding must determine “as soon as practicable” if the child is a First Nations, Inuk, or Métis (“FNIM”) child and, if so, the child’s bands and First Nations, Inuit, or Métis communities: CYFSA, s. 90(2). This finding must be made before the court determines if the child is in need of protection: Kawartha, at para. 60.

[5] The test for whether a child should be placed in extended society care under the CYFSA involves two broad inquiries: (1) whether the child is “in need of protection”; and (2) whether placement of the child in extended society care is “in the child’s best interests” and the court is “satisfied that intervention through a court order is necessary to protect the child in the future”: CYFSA, s. 101(1).

[6] The court determines whether a child is “in need of protection” by applying the criteria in s. 74(2), which include, for example, the risk that the child is likely to suffer physical harm from a parent’s failure or pattern of neglect to adequately care for, provide for, supervise, or protect the child (ss. 74(2)(b)(i) and (ii)); whether the child has suffered emotional harm from a parent’s actions, including potentially from exposure to domestic violence (s. 74(2)(h)); and whether the child has been sexually abused or sexually exploited by a parent (s. 74(2)(c)).

[7] The court determines whether an order for extended society care is in the “child’s best interests” by applying the criteria in s. 74(3) of the CYFSA, which include, for example, the child’s views and wishes (s. 74(3)(a)); the importance of preserving the child’s cultural identity and connection to the community in the case of an FNIM child (s. 74(3)(b)); and other relevant circumstances of the case (s. 74(3)(c)), including the risk of harm to the child if the child is returned to or allowed to remain in the care of a parent (s. 74(3)(c)(x)) and the degree of risk that justified the finding that the child is in need of protection (s. 74(3)(c)(xi)).

B. BACKGROUND AND DECISIONS BELOW

(a) Facts

[8] The appellant, aged 27, is a member of the Eastern Woodland Métis Nation Nova Scotia (“EWMNNS”). Her two children, C.T-W., aged seven, and T.J.E., aged five, have been in the care of the Society for over four years, since July 2016, which is most of their lives.

[9] The Society first apprehended the children in May 2016 because they were being exposed to domestic violence. The police had attended at the apartment of the appellant and her then-partner, T.E. (T.J.E.’s biological father), in response to a neighbour’s call about a domestic assault in progress. When the police arrived, they heard the appellant and T.E. amidst a violent argument and heard a heavy glass object smash. When the police entered, they saw broken glass on the floor. The children, then aged about three and one, were crying loudly and crawling on the floor towards the broken glass. The police interviewed and then arrested both T.E. and the appellant — T.E. for pinning down the appellant and choking her, the appellant for throwing a glass jar at T.E. and stabbing him with a fork.

[10] A few weeks later, the children were returned to the appellant’s care subject to supervision, but in July 2016 they were removed again when she breached conditions of an interim supervision order and of her bail that she have no contact with T.E. The children have been in the Society’s care since then.

[11] Later that month, the Society learned the appellant had a video on her phone in which she had recorded T.E. naked and moving his erect penis without his hands, while their child, T.J.E., grasped at and briefly touched T.E.’s penis. About a year later, Douglas J. of the Ontario Court of Justice convicted the appellant of possessing child pornography and sexual interference. His reasons described the video as follows:

The video depicts [T.E.] Senior naked on a couch or a bed with his penis erect, pumping the penis up and down without his hands, with the one-year-old child trying to, and succeeding briefly, touch the erect penis. It also depicts [the appellant] capturing the activity on video, and directing [T.E.] Senior what to do and encouraging him to keep doing it.

[12] In February 2017, with the appellant’s criminal trial pending, Ross J. of the Ontario Court of Justice granted summary judgment, with the appellant’s consent, awarding the Society wardship (under the former CFSA) of the children for four months and approving a plan of care requiring the appellant to participate in counselling and mental health programs. The appellant did not do so.

[13] In April 2017, the Society began a status review application seeking permanent Crown wardship to secure an adoption placement for the children.

(b) Trial Decision

[14] After a seven-day trial, the trial judge found the children were in need of protection and ordered that they be placed in the Society’s extended care, without ordering access for the appellant or for their respective biological fathers, neither of whom participated in the trial.[^1]

[15] The trial judge held that although the appellant is a Métis person and a member of the EWMNNS, the children were not members of the Métis community. He nevertheless accepted the children’s Indigenous heritage would “continue to be important” under the CYFSA.

[16] The trial judge ruled the children were in need of protection on two grounds: “the exposure of [the] children, historically, to multiple incidents of domestic violence” (based on CYFSA, s. 74(2)(h)), and “the exposure of a child to adult sexual activity” (based on CYFSA, s. 74(2)(c)).

[17] Besides the violent incident in May 2016 when the children were first apprehended, and the conduct recorded on the cellphone video and described in Douglas J.’s reasons,[^2] the trial judge found T.E. had assaulted the appellant several times before May 2016, including in 2015 when she was pregnant with T.J.E. T.E. had been charged and incarcerated while awaiting trial, but the appellant took steps to have the charges withdrawn, and they resumed living together. The trial judge found the appellant had minimized the seriousness of the 2015 assault, even though she had needed medical care, and at trial there was evidence she wanted to reconcile and resume living with T.E. The trial judge also found the appellant had a history of suffering domestic violence at the hands of her former partner, V.T., the biological father of C.T-W. The trial judge also highlighted the appellant’s failure “to discharge with any degree of sufficiency” the plan of care objectives the court had earlier imposed.

[18] The trial judge held that returning the children to the appellant under supervision was not in the children’s best interests. He noted the appellant had not achieved prior plan of care objectives, was not focussed on resolving domestic violence or sexual abuse issues, and had not complied with past court orders. He found the appellant was not a credible witness, noting that she denied T.E. had ever been violent towards her, and claimed she had fabricated the violence recorded in various police reports, even though T.E. had been incarcerated as a result. He also found she “clearly does not have any insight into the dynamic that is domestic violence”, and “still has insufficient appreciation of the risk that [T.E.] poses to her and to these children.”

[19] The trial judge found the children could not be placed in the care of the appellant’s mother in Nova Scotia (their maternal grandmother), who was also a member of the EWMNNS. The grandmother had an “extensive criminal record”, including for breach of undertakings and court orders, “no appreciation of the risk” posed to the children by domestic violence, and was “blind to the circumstances of the cell phone video.”

[20] The trial judge also found that the Chief of the EWMNNS “made it clear that they were not prepared to be involved”.

[21] In all the circumstances, the trial judge ruled that an order for extended society care without access was in the children’s best interests. He noted the children’s foster mother, C.G., wished to adopt both children should they be placed in extended society care “with no access or with access by photographs”. The foster mother advised she was adopted herself as a child and is trained and works in the fields of child mental health and early childhood development. She has been the foster mother of C.T-W. since July 2016, and is now caring for both children. The trial judge noted the children showed substantial developmental delays when they came into the Society’s care, but have since made significant gains.

(c) First Appeal Decision

[22] After a four-day appeal, the appeal judge allowed the parties to adduce fresh evidence, dismissed the appeal, affirmed the order for extended society care without granting the mother any access order, and refused the appellant’s request for a new trial.

[23] The appeal judge addressed four main issues.

[24] First, although the appeal judge accepted the trial judge erred by failing to identify the children as Métis children under the CYFSA, he held the trial judge consistently considered their Indigenous cultural identities and analyzed their best interests essentially as if he had found them to be Métis children. The appeal judge noted that further evidence tendered before him showed the Society had attempted to advance and preserve the children’s cultural identities and their connection with their Métis culture and heritage:

The children are Métis. The additional evidence on appeal demonstrates that the Society has arranged for and provided services to preserve and advance the children’s cultural identities and their connection with their Métis culture and heritage. The Society has also arranged for services for the foster parents and direct assistance to the children’s foster parents (including the proposed adoptive parent), in order to educate and train them to support the preservation and furtherance of the children’s cultural identities.

[25] Second, the appeal judge held the trial judge did not err in holding that the children were in need of protection under s. 74(2)(c) of the CYFSA (“sexually abused or sexually exploited”), even though the appellant’s criminal conviction was under appeal and could be overturned. He concluded the trial judge had relied on the conduct depicted in the video, not the fact of the appellant’s criminal conviction — the child protection finding was “conduct specific, not conviction specific”. The appeal judge noted the appellant accepted that the conduct depicted in the video was accurately described in Douglas J.’s reasons and posed a significant risk of harm to the child.

[26] Third, the appeal judge rejected the appellant’s claim that the trial judge erred in refusing to admit evidence showing she had now participated in counselling, treatment, and other programs teaching her the life skills needed to mitigate the identified risks of harm to the children. The appeal judge found the trial judge considered all this evidence, but concluded it was of limited probative value.

[27] Fourth, both the Society and the appellant sought to adduce further and fresh evidence on appeal. Although the appeal judge admitted some of this evidence, he concluded it did not warrant allowing the appeal.

(d) Criminal Appeal Decision

[28] Between the appellant’s first appeal and the appeal to this court, the Superior Court of Justice overturned the appellant’s criminal conviction. This court was not provided with the Superior Court’s reasons. However, as part of her fresh evidence motion before this court, the appellant sought to adduce her factum before the Superior Court, in which she had contended the video depicted no actions that constitute sexual interference and did not meet the definition of child pornography. But she did not dispute, and has never disputed, Douglas J.’s description of the video.

C. ISSUES

[29] On a further appeal to this court, the appellant raises seven issues:

1. Did the courts below err in interpreting the time limits for interim care orders under s. 122 of the CYFSA?

2. Did the courts below misapprehend and undervalue the appellant’s evidence?

3. Did the trial judge’s conduct of the trial give rise to a reasonable apprehension of bias?

4. Given that the appellant’s criminal conviction has now been overturned, did the courts below err in relying on it as a basis for a child protection finding?

5. Did the courts below err in placing the burden of proof on the appellant to demonstrate that an access order would be in the children’s best interests?

6. Should the appellant’s fresh evidence be admitted on appeal?

7. Is the appellant entitled to full indemnity costs for this appeal?

D. DISCUSSION

Standard of Review

[30] This court may intervene in the decision of an appeal judge in a child protection matter only if the appeal judge erred in principle by failing to identify a material error in the trial judge’s decision: Children’s Aid Society of Toronto v. V.L., 2012 ONCA 890, 299 O.A.C. 388, at para. 17, leave to appeal refused, [2013] S.C.C.A. No. 112. Deference to a trial judge’s factual determinations is a “particularly compelling” consideration in child protection proceedings: Children’s Aid Society of Ottawa v. S.N.-D., 2012 ONCA 590, 26 R.F.L. (7th) 46, at para. 19.

[31] Although this is an appeal from the order of the appeal judge, many of the appellant’s grounds of appeal are framed in terms of the trial judge’s material errors. For simplicity, I will address the issues as framed by the appellant in order to determine whether the appeal judge made a reviewable error that justifies this court’s intervention.

Issue #1: Did the Courts Below Err in Interpreting the Time Limits for Interim Care Orders Under s. 122 of the CYFSA?

[32] The appellant asserts the courts below erred in finding that s. 122(1)(a) of the CYFSA imposes a strict 12-month time limit for interim society care orders where a child is younger than six. She says they interpreted s. 122(1)(a) in an “absolutist” way that excluded all other statutory considerations, including the best interests of the children and the importance of maintaining FNIM connections. She also contends they should have given her more than 12 months to address her parenting issues and the proceedings should have been “paused” to allow the parties to tender more information about the children’s best interests.

[33] I do not accept this submission. Section 122(1)(a) of the CYFSA is clear that, subject to ss. 122(4) and (5), which address deemed and court-ordered extensions, “the court shall not make an order for interim society care” (emphasis added) that results in a child being in the care and custody of a society for more than 12 months, if the child is younger than six on the day the court makes the order. The 12-month time limit for an order under s. 122(1)(a) is plain on the face of the provision. The unfortunate practical reality that children do sometimes remain in interim society care for longer than this does not render the statutory time limit optional. Courts at all levels have stressed “the importance of reaching a speedy resolution of matters affecting children”: Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, at p. 206; see also Children’s Aid Society of Oxford County v. W.T.C., 2014 ONCA 540, 46 R.F.L. (7th) 290, at para. 10; Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 212, at para. 90.

[34] I would also reject the suggestion that the courts below took an “absolutist” approach to s. 122(1)(a) at the expense of the best interests of the children or the importance of maintaining FNIM connections. The time limits imposed by the statute must be presumed to reflect its objectives, including, especially, the promotion of the best interests of the children. Here, the trial judge considered the children’s best interests throughout and emphasized the matter was “long overdue for resolution.” The appeal judge similarly described the children as being “parked in limbo”. These considerations are firmly rooted in the children’s best interests. I see no basis to intervene.

Issue #2: Did the Courts Below Misapprehend and Undervalue the Appellant’s Evidence?

[35] The appellant asserts the courts below misapprehended and undervalued her evidence. She claims they failed to heed this court’s admonition in Kawartha, at para. 80, that the “special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.” In her factum, she says the trial judge engaged in stereotypical reasoning by “impermissibly undervaluing the evidence presented by and progress made by a young indigenous mother towards being able to resume care for her children”.

[36] I do not agree with this submission. The reasons of the courts below and the record confirm their sensitivity to the children’s Indigenous heritage and highlight the significant efforts to ensure all relevant information was presented:

• The appeal judge concluded the children were Métis and noted that the trial judge’s reasons addressed the best interests of the children essentially as if he had found them to be Métis children under the CYFSA.

• Chief Mary Lou Parker of the EWMNNS, who testified by telephone from Nova Scotia, advised that the EWMNNS did not want to participate in the proceedings. She testified: “we have too many members going through similar things and we … don’t care to get mixed up within their rights”.

• Both courts below were aware of the appellant’s commendable personal progress and the trial judge acknowledged that “she does care for her children”. But they also emphasized the children were at risk of harm if returned to her care, given the children’s history of exposure to domestic violence, the appellant’s consistent minimization of those risks, her intention to reconcile with T.E., and her past failure to meet plan of care objectives.

• The appeal judge was entitled to defer to the trial judge’s decision to doubt the appellant’s credibility because of her testimony that she had fabricated her statements to the police that T.E. had assaulted her, which had led to T.E.’s incarceration.

[37] I see no error in the approach or conclusions of the courts below, which were amply supported by the record and in my view are entitled to appellate deference.

Issue #3: Did the Trial Judge’s Conduct of the Trial Give Rise to a Reasonable Apprehension of Bias?

[38] The appellant contends the trial judge showed a reasonable apprehension of bias by assuming the role of advocate for the Society. In her factum she claims the trial judge “coached the [Society] on the evidence to lead, coached the [Society] on what grounds of protection to advance, and excluded or minimized the [appellant’s] evidence, consistently preferring the evidence of the [Society] even on conflicting issues”.

[39] This argument was not raised in the courts below. As a general rule, this court will not entertain entirely new issues on appeal: see e.g., Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18.

[40] In any event, I disagree with the appellant’s submission. The trial judge did not “coach” the Society on what evidence to lead or the protection grounds to advance. Before the trial began, the trial judge conducted a trial management conference to canvass what evidence would be led by the parties and to clarify the grounds of protection to be advanced. He was rightly concerned that the trial proceed and not be adjourned, noting “this matter has got to proceed to trial. It’s been outstanding for a very, very long period of time.” He reiterated in his reasons that the issues were “long overdue for resolution”, and stated that “the interests of these children have been, frankly, regrettably, parked.”

[41] It was in that context that the Society confirmed that the Crown had not released to it a copy of the video, leading the Society to move to rely on Douglas J.’s reasons for conviction. Before the trial began the Society also advised that two protection grounds were in issue — risk of sexual harm and exposure to domestic violence — and the parties tendered evidence and made argument on both grounds. Appellant’s trial counsel (not counsel before this court) conceded in her closing argument that both grounds were properly before the court:

[W]e are dealing with both the grounds related to the sexual behaviour and the emotional harm and domestic violence. So I’m just conceding that we were dealing with both grounds during the course of the trial despite the pleading not showing both grounds when it was amended. In fact, I responded to the emotional ground in my amended answer because I believe that a lot of the information was still going to be surrounding that issue.

[42] This concession undercuts the suggestion that both grounds were not properly before the court or that there was procedural unfairness. In my view, nothing in the trial judge’s handling of the trial supports a claim of reasonable apprehension of bias, assessed from the perspective of a reasonable observer present throughout the trial, or otherwise compromised the fairness of the trial: see R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 96-98.

Issue #4: Given the Appellant’s Criminal Conviction Has Now Been Overturned, Did the Courts Below Err in Relying on It as a Basis for a Child Protection Finding?

[43] In her factum the appellant asserts that her criminal conviction “played a very significant role in the trial results”, and now that the conviction has been overturned, “a new trial is required.”

[44] I disagree. As the appeal judge ruled, the trial judge relied on the conduct depicted in the video, not the fact of conviction, in support of the child protection finding under s. 74(2)(c) of the CYFSA — it was “conduct specific, not conviction specific”. The trial judge noted that “there was no essential dispute as to the cell phone video, what was depicted and the role played by the child.” In oral reasons made on May 24, 2018, which addressed the two child protection risks of exposure of the children to multiple incidents of domestic violence and to adult sexual activity, the trial judge found that the mother did not explain forthrightly the video’s contents and had been slow even to acknowledge any risk to the children:

While in cross-examination [the appellant] expressed some acknowledgement of poor judgment I do not understand why that was not recited within her affidavit material and I am certainly not satisfied about whether there have been disclosures made to any personnel with whom she has engaged at the Windsor Sex Offender Treatment Program. I am also mindful that the evidence is that these children given their ages have been in care since July of 2016 and the evidence is clear that the mother did not attend to address sexual issues until February of 2018 and at this point there is some regimen of counselling that lays ahead.

[45] The appeal judge held that the conduct depicted in the video met the standard for sexual abuse or exploitation under s. 74(2)(c), even though there was no evidence that the child was involved in the video for the purpose of sexually gratifying the appellant or T.E.:

At trial, there was no evidence that the child’s presence and involvement in the events depicted in the video was for the purpose of sexually gratifying either the appellant or T.E. In my view, however, in the context of child protection legislation and consistent with the stated primary purpose of the CYFSA (to promote the best interests, protection and well being of children), the concepts of “sexual exploitation” and “sexual abuse” are broad enough to encompass circumstances in which: “sex play” between persons who are otherwise responsible for the care of a child, is knowingly carried out in front of a video camera within feet (if not inches) of the child; the child demonstrates an interest in touching and/or interacting with erect male genitalia; and the persons with care of the child do not engage in any effort to: cease the sexual activity; cease the recording of the sexual activity; or engage in any meaningful activity to remove the child or re-direct his interests. Instead, in this instance, the appellant encouraged T.E. to continue with the sexual activity, while the child attempted to touch T.E.’s penis, without any regard to the inappropriate nature of their conduct in the presence of the child, or the risks of sexual harm to the child that were posed by his exposure to their conduct (risks that the appellant now acknowledges). Further, when the child successfully made physical contact with T.E.’s exposed erect genitalia, the appellant’s response was limited to encouraging T.E.’s sexual activity, while continuing to record it. [Emphasis in original]

[46] The appellant sought to explain the conduct in the video as resulting from an error of judgment, and before this court highlights that her criminal conviction has now been overturned.

[47] In my view, it is unnecessary to determine whether the conduct depicted in the video amounts to sexual abuse or sexual exploitation under s. 74(2)(c) of the CYFSA. This is because I have concluded that the children’s recurring exposure to domestic violence provides a sufficient basis to affirm the conclusion of the courts below that the children were, and continue to be, in need of protection and the appropriateness of an order for extended society care.

Issue #5: Did the Courts Below Err in Placing the Burden of Proof on the Appellant to Demonstrate that an Access Order was in the Children’s Best Interests?

[48] The appellant asserts the trial judge’s no-access order failed to recognize that “[t]he burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child”: Kawartha, at para. 49. She says there was no basis for, and no evidence justifying, a no-access order, and the appeal judge erred by failing to correct this error of the trial judge.

[49] The appellant is correct to highlight what Benotto J.A. described in Kawartha, at para. 48, as the “significant shift in the approach to access for children in extended society care” under the CYFSA. Section 105(5) of the CYFSA now provides that “[a] court shall not make … an access order … unless the court is satisfied that the order … would be in the child’s best interests.” At para. 49 of Kawartha, Benotto J.A. explained the change in approach as follows:

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests.

See also J.G., at paras. 37-53.

[50] Here, the trial judge’s reasons for the no-access order were brief, and simply highlighted the absence of evidence to support access:

There is no evidence to support any resolve but for extended [society] care and there is no evidence to support the matter of access. Accordingly, the order will be extended [society] care, no access.

[51] The appeal judge concluded that there was nothing to justify substituting a different disposition than the one ordered by the trial judge.

[52] Under Kawartha, the absence of evidence from the appellant to support access did not in itself justify denying the appellant access. The question is whether an access order would be in the best interests of the children.

[53] Here, contrary to the trial judge’s finding, there was some evidence relating to access in the foster mother’s letter dated July 4, 2017, where she stated that she wished to adopt both children should they be placed in extended society care with “no access or access by photographs”. Access by photographs would thus not undermine the children’s prospects of being adopted by the foster mother. Neither of the courts below appear to have considered this option. Even this very limited access could be significant to the appellant because it would entitle her to notice of the adoption proceedings and would keep the door open to some form of openness in the adoption that might be agreeable to the potential adoptive parent: CYFSA, s. 195. I thus conclude that the ruling that there should be no access was tainted by legal error.

[54] Despite this, I have concluded that this is not an appropriate case to order a rehearing on access. In all the circumstances of this case, the legislation’s paramount purpose of promoting the best interests, protection, and well-being of children requires the matter to proceed to adoption, especially because the children have been in the Society’s care well beyond the statutory timelines and because the record here is sufficient to permit this court to make an appropriate access order. The foster mother has expressed a willingness to accept photograph access. Nothing in the record suggests that access by photographs would not be in the children’s best interests. Such access would allow the children to maintain, even if in a very modest way, some connection through their birth mother with their Métis culture, heritage, and tradition, a statutory factor the court must consider in making a determination in the best interests of the children: CYFSA, s. 74(3)(b). In my view, granting the appellant the right to photograph access during the period of extended society care would be in the best interests of the children.

[55] I would therefore replace the no-access order with an order granting the appellant the right to monthly photograph access to the children.

[56] Where the Society begins planning for the adoption of an FNIM child, s. 187(2) of the CYFSA requires the Society to consider the benefits to the child of an openness agreement or order. The Society should therefore ascertain the foster mother’s most up-to-date views on the extent of acceptable access between the children and the appellant that could lead to an openness agreement. Additional forms of access or openness to consider might include the exchange of letters, gifts, emails, or video calls.

[57] The Society should also contact the Office of the Children's Lawyer before serving notice of adoption. This early notice will allow the Office of the Children’s Lawyer to assess whether it would be in the children’s best interests to employ an alternative dispute resolution process to explore openness agreement options acceptable to the prospective adoptive mother.

[58] It is hoped the children’s adoption proceedings can start promptly and proceed expeditiously.

Issue #6: Should the Appellant’s Fresh Evidence Be Admitted on Appeal?

[59] The appellant seeks to adduce further and fresh evidence before this court. The evidence provides information about the appellant’s mental health treatment, her attendance at parenting courses, skills training and employment programs, encloses her appeal factum from her criminal appeal, and includes correspondence between her counsel and the Society trying to negotiate interim access. The Society consents to the admission of at least some of this evidence, but notes some is very similar to evidence that was not admitted on the first appeal.

[60] It is not useful or necessary to address each item of evidence individually. The appellant is to be commended for the steps she has taken to improve her education, mental well-being, and life prospects. However, I am not persuaded this new evidence — much of which is very general and simply describes the appellant’s participation in various programs — sufficiently assuages the significant and longstanding risk of harm to the children because of recurring exposure to domestic violence under s. 74(2)(h) of the CYFSA. Nor does it provide useful information on whether returning the children to the appellant would be in their best interests.

[61] The Society consented to admitting some, but not all, of this evidence. I would be prepared to admit all the evidence, but it is not entitled to much weight. In my view, the evidence does not change the result.

Issue #7: Is the Appellant Entitled to Full Indemnity Costs for this Appeal?

[62] The appellant claims full indemnity costs for this appeal. The Society does not seek costs, even though it largely succeeded before this court.

[63] In my view, this appeal presents no “exceptional circumstances” for an award of costs against the Society: see A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 818, at para. 4. I would therefore make no order as to costs.

E. DISPOSITION

[64] I would admit the fresh evidence. I would allow the appeal in part, only to the extent of granting the appellant an order for monthly photograph access to the children. I would make no order as to costs.

Released: October 28, 2020 (“D.D”)

“M. Jamal J.A.”

“I agree. Doherty J.A.”

“I agree. Alexandra Hoy J.A.”

[^1]: T.E. participated in a trial management conference on the first day of trial but then withdrew and did not participate further.

[^2]: Although the cellphone video was not in evidence in the child protection proceeding, Douglas J.’s reasons for conviction were admitted. The appellant conceded that they accurately described the video’s contents.