Warning

Prohibitions under the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1 apply to this decision:

Prohibition re identifying child

87(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.

Prohibition re identifying person charged

87(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.

Transcript

87(10) No person except a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise.

Offences re publication

142 (3) 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

Date: 20210407 Docket: C68445

Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A.

BETWEEN

The Catholic Children’s Aid Society of Toronto Applicant (Respondent)

and

V.R. Respondent (Appellant)

Counsel: David Miller, for the appellant Chris Andrikakis, for the respondent

Heard by video conference: March 26, 2021

On appeal from the order of Justice Carolyn J. Horkins of the Superior Court of Justice, dated June 9, 2020, with reasons reported at 2020 ONSC 3508, allowing in part an appeal from the order of Justice Manjusha Pawagi of the Ontario Court of Justice, dated April 5, 2019.

Reasons for Decision

[1] This is a second appeal from a decision finding three-year-old D.R. in need of protection and placing her in the Society’s extended care with a view to adoption by her foster parents and with no order for access. The appeal judge allowed the mother’s appeal only in respect of the access order, finding that the trial judge erred in law by applying the wrong test. The appeal judge proceeded to make the access decision afresh but reached the same conclusion and refused access.

[2] The mother appealed from the entire order below but now appeals only the “no access” portion of that order. She requests a rehearing of the access issue or, in the alternative, an order for virtual access to D.R. at least six times each year as well as recent pictures of the child at least four times each year. She specifically asks for both mother and child to be access holders and access recipients.

[3] D.R.’s father did not participate in either the trial or the appeal below and did not participate in this appeal. He was deported to Portugal in 2018. The appellant was deported to Portugal prior to this appeal being heard.

[4] The appeal is dismissed for the reasons that follow.

Background

[5] D.R. was born in […] 2017. She was seriously injured on two occasions in the first few months of her life. The first injury occurred in November 2017, when she suffered a spiral fracture of her upper arm. Dr. Shouldice, head of Paediatric Medicine at the Hospital for Sick Children and overseer of the Suspected Child Abuse and Neglect unit, concluded that this injury was consistent with an explanation given by the father one week after the injury was sustained. The second serious injury occurred […] 2018, when D.R. was four months old and in the temporary custody of her parents. She was taken to the hospital after she suffered seizures, was not breathing well, and her eyes were rolled backwards. Her injuries included subdural haemorrhages and retinal haemorrhages. Dr. Shouldice concluded that the most likely cause of the injuries was blunt force trauma, inertial forces, or a combination of the two.

[6] The trial judge rejected the appellant’s innocent explanations for the injuries. She found that D.R. was injured in the care of her parents and that her injuries were intentionally inflicted by the mother and/or father. The trial judge found that D.R. was a child in need of protection and placed her in the extended care of the Society with no parental access.

[7] The appellant mother appealed on several grounds but her appeal was dismissed, save in one respect. The appeal judge found that the trial judge wrongly put the onus on the appellant to demonstrate that access would be in the child’s best interests. Rather than remit the matter, the appeal judge assumed jurisdiction to determine the access question. The appeal judge concluded that access was not in the best interests of the child and made the no access order that is the subject of this appeal.

Discussion

[8] The appellant submits that on any reasonable application of the best interests analysis on the evidence in this case, an access order should result. The appellant says that she has demonstrated normal, healthy parenting skills and that D.R. enjoys and has benefited from visits with her. The appellant is happy that the foster parents are willing to adopt D.R. and access would not impair D.R.’s opportunities for adoption. Access would allow D.R. a connection to her biological family, Portuguese roots, culture and language. The appellant says that there is no risk of harm through the requested access in the form of video calls, letters, cards, and gifts.

[9] This submission is, in essence, an invitation to retry the matter and to substitute this court’s decision. That is not our function on appeal. The appeal judge’s decision to deny access is entitled to deference from this court, absent a palpable and overriding error. We see no error that would allow this court to intervene.

[10] The appeal judge conducted a best interests analysis, assessing whether the relationship was beneficial and meaningful to the child in accordance with ss. 105(5) and (6) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, and the criteria set out in s. 74(3).

[11] D.R.’s age precluded the ascertainment of her wishes, and the appeal judge noted that she is not First Nations, Inuk, or Métis. The appeal judge went on to consider the relevant circumstances under s. 74(3)(c) based on the findings of the trial judge.

[12] The most significant of these was the degree of risk that led to the protection finding, given the trial judge’s finding that one or other of the parents had intentionally inflicted the injuries on the child or failed to protect the child from the other caregiver. The appeal judge also noted that the seizure episodes occurred more than two hours before the child arrived at the hospital and that the medical evidence was that the delay placed the child at a “higher risk for low oxygen damage to the brain…at increased risk for developmental delay, long term neurological problems and learning difficulties”.

[13] The appeal judge noted that the child has benefited from the continuity of the care she has received and was developing extremely well in the care of her foster parents. The appeal judge’s key findings are set out in paras. 151-2, in which she stated:

The child has not been in her mother’s care since she was four months old. While the mother’s access visits with the child have gone well, there is no factual foundation to find that their relationship is beneficial and meaningful to the child. There is no evidence as to how the mother might provide for the child’s needs. The mother is currently the subject of a deportation order and, if implemented, she will be returned to Portugal.

In summary, I find that it is not in the child’s best interests to order that the mother have access. I make no order as to access. [Emphasis added.]

[14] The thrust of the appeal judge’s decision is clear and reveals no error. Although the reasons on the specific issue of access could have been more detailed, they leave no doubt as to the reasonableness of the decision.

[15] This is a case in which the appellant has had only a very brief relationship with D.R., having cared for her for two non-consecutive months. D.R. has spent most of her life in her foster parents’ care and has been thriving there. During the time she was cared for by the appellant, D.R. was seriously injured on two occasions and the trial judge found that the injuries incurred on the second occasion were inflicted intentionally by either or both parents. The appellant’s explanation for how these injuries occurred was rejected by the trial judge.

[16] The appeal judge’s finding that the most significant circumstance is the degree of risk that led to the protection finding is supported by the evidence and is reasonable. So too is the appeal judge’s finding that there is no factual foundation supporting a finding that the relationship is beneficial and meaningful to D.R., regardless of how well the access visits had gone at the time she made her decision. In that regard, the trial judge noted the foster father’s evidence that D.R. was sometimes upset after access visits as well as the access worker’s evidence that although the access visits went well, D.R. left without a visible reaction to parting from the appellant.

[17] The appeal judge’s decision is fortified by the fresh evidence proffered by the Society. The appellant does not oppose the admission of this evidence – an affidavit from D.R.’s foster father – and in our view it is properly admitted as it is directly relevant to the child’s best interests.

[18] D.R. has been in the care of the deponent and his wife since February 2018. The appellant has not had in-person access with D.R. since supervised visits ended in March 2020. Since that time, the appellant has maintained contact with D.R. by means of brief, biweekly video call visits that have been facilitated by the foster parents. Initially the video calls lasted 30-40 minutes, but recently that has dropped to 15-20 minutes. He states that D.R. seems a bit tense during the calls and needs frequent reassuring following the calls.

[19] In summary, there is no basis to interfere with the appeal judge’s no access order.

[20] The appeal is dismissed. No costs were requested and none are ordered.

“Fairburn A.C.J.O.”

“K. van Rensburg J.A.”

“Grant Huscroft J.A.”