Court of Appeal for Ontario

Date: 2025-09-11

Docket: COA-24-CV-0929

Judges: Sossin, Favreau and Wilson JJ.A.

Parties

Between

Catholic Children's Aid Society of Toronto Applicant (Respondent)

and

R.E. Respondent (Appellant)

S.B. Respondent (Respondent)

Counsel

Stephen P. Kirby, for the appellant

Fatima Husain, for the respondent Catholic Children's Aid Society of Toronto

S.B., acting in person [2]

Jean Hyndman, appearing as amicus curiae [3]

Hearing and Appeal

Heard: August 25, 2025

On appeal from the order of Justice E. Llana Nakonechny of the Superior Court of Justice, dated June 28, 2024, allowing an appeal from the order of Justice Debra A. W. Paulseth of the Ontario Court of Justice, dated April 6, 2023.

Reasons for Decision

Introduction

[1] The appellant is the mother of a five-year-old child. The child was first taken into care by the Catholic Children's Aid Society of Toronto (the "Society") in January of 2021. On April 6, 2023, the trial judge granted the Society's application for an extended society care order. The effect of the extended society care order is that the Society can arrange for the child's adoption. The trial judge also granted the mother access to the child at least once per month. Finally, the trial judge ordered that the child was to be the access holder and the mother the recipient of the access.

[2] The mother appealed the trial judge's order to the Superior Court. The appeal judge upheld the extended society care order and the order granting the mother access at least once per month. However, she found that the trial judge erred in making the mother an access recipient rather than an access holder. She held that the trial judge misapplied the test and breached the mother's right to procedural fairness with respect to this issue. The appeal judge varied the trial judge's order and made the mother an access holder.

[3] The mother appeals to this court from the appeal judge's order. She also seeks to introduce fresh evidence regarding her current circumstances. Her primary argument on appeal is that, given the appeal judge's finding of procedural unfairness on the access recipient issue, the appeal judge should have remitted the whole matter back for a new trial rather than only varying the mother's access status.

[4] The Society submits that the mother's appeal should be dismissed. The Society does not object to the appeal judge's decision to make the mother an access holder. The Society also brings a motion for fresh evidence.

[5] For the reasons that follow, we admit the fresh evidence but dismiss the appeal.

[6] We first address the fresh evidence, followed by a discussion of whether the appeal judge erred in not ordering a new trial. We conclude with a brief discussion of the other issues raised by the mother on appeal.

Fresh Evidence

[7] The mother brings a motion to introduce fresh evidence. The evidence relates to her circumstances after the trial and after the Superior Court appeal. The Society also brings a motion for fresh evidence, which consists of four affidavits that address the mother's recent supervised visits with the child and interactions with the father.

[8] The Society does not object to the mother's fresh evidence, and the mother does not object to the Society's fresh evidence.

[9] Section 121(6) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the "CYFSA") permits a court hearing an appeal in a child protection case to receive further evidence relating to events after the decision under appeal. In Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 4, the Supreme Court held that "[i]n cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible to recognize that it may be in the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child's life." The Palmer test directs the court to consider whether: (i) the evidence could not, by the exercise of due diligence, have been obtained for the trial; (ii) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (iii) the evidence is credible in the sense that it is reasonably capable of belief; and (iv) the evidence is such that, if believed, it could have affected the result at trial: Barendregt, at para. 29.

[10] In this case, we are satisfied that the fresh evidence meets the criteria for admission. The evidence from both the mother and the Society was not available at the time of the hearing before the trial judge, and it is relevant to understanding the current circumstances of the child and the mother.

Standard of Review

[11] The paramount purpose of the CYFSA is "to promote the best interests, protection and well-being of children": s. 1(1); see also Children's Aid Society of Toronto v. V.L., 2012 ONCA 890, 299 O.A.C. 388, at para. 15, leave to appeal refused, [2013] S.C.C.A. No. 112.

[12] On an appeal from a child protection order, the court should not interfere with a trial judge's decision, absent an error in principle, a failure to consider relevant factors or a lack of factual basis for the decision: New Brunswick (Minister of Health and Community Services) v. C. (G.C.), [1988] 1 S.C.R. 1073, at p. 1077; V.L., at para. 16.

[13] Given that this is a second appeal in which the mother asserts that the appeal judge should have interfered further with the trial judge's decision, this court will only intervene if the appeal judge erred in principle by failing to identify a material error in the judgment below: V.L., at para. 17.

Proper Remedy for Access Rights Error

[14] As indicated above, the mother's primary argument on appeal is that the trial judge erred in failing to order a new trial once she determined that there was a lack of procedural fairness at trial on the issue of the mother's access status. We disagree.

[15] Section 105(7) of the CYFSA requires that, when a court makes or varies an access order with respect to a child who is in extended society care, the court must specify who is an access holder and who is an access recipient. As the trial judge and the appeal judge noted, this distinction is important because only access holders can apply pursuant to s. 196(1) of the CYFSA for an openness order once notice has been given that a child is being placed for adoption. This means that, if the mother is only an access recipient and not an access holder, she would not be allowed to apply to have access rights to see the child during the adoption process. Once the child is adopted, only the Society or the child could make such an application.

[16] In this case, the trial judge reasoned that it was "essential" that the mother not be an access holder based on the following considerations:

(1) [M]other does not have sufficient insight to assess her own limitations and their impact on [the child];

(2) [M]other does not consistently support [the child's] relationship with father;

(3) [M]other has poor impulse control and serious mental health challenges;

(4) [M]other is not an honest reporter of information; and

(5) [M]other is litigious and cannot accept that there is no merit in her claims of anti-racism [sic] and lack of services and support for her.

[17] The trial judge concluded that the mother's conduct was of concern because:

(1) It could dissuade prospective adoptive parents;

(2) It would delay permanency planning for the child; and

(3) It would enmesh the child in litigation.

[18] While the trial judge only made the mother an access recipient, she made the father an access holder.

[19] On appeal before the Superior Court, the mother argued that the trial judge erred in making her an access recipient rather than an access holder. The appeal judge agreed and reversed that aspect of the decision, finding that the mother should be an access holder.

[20] To address the mother's argument before this court that the appeal judge should have ordered a new trial on all issues, it is necessary to review the appeal judge's reasoning on the access rights issue in some detail.

[21] One of the rationales for making a person an access recipient rather than an access holder is concern that an access holder may impair a child's opportunities for adoption. Based on the case law, the appeal judge listed the attributes of parents who may be denied the status of access holder:

Attributes of parents, including the following, have been identified … as potentially impairing children's future opportunities for adoption, where those parents are made access holders: difficulty with aggression, anger, or impulse control; lack of support for an alternative caregiver for children, potentially manifesting in undermining an adoptive placement; dishonesty and secrecy; a propensity to be unreasonably litigious; and, the presence of mental health or substance abuse issues, transience or [a] chaotic lifestyle.

[22] The appeal judge explained that the decision on access rights was a question of mixed fact and law, subject to the palpable and overriding error standard.

[23] The appeal judge noted that, at trial, the Society's position was that the mother should be an access holder. It was the father's counsel who submitted for the first time in his closing argument that the mother should only be an access recipient.

[24] The appeal judge went on to find that the mother had not had a chance to respond to the father's position on this issue through her evidence or in cross-examinations, and that this was procedurally unfair:

While amicus gave closing argument after [the father's] counsel, the evidence was already completed. Amicus had no opportunity to address the issue in the mother's [evidence-in-chief] or in cross-examination of the Society witnesses or [the father]. The mother argues that, at minimum, notice of [the father's] position should have been given at the opening of trial so it could be addressed in evidence. I agree.

In paragraphs 140 and 141 of the Decision, [the trial judge] lists her concern about the mother's conduct and concludes that the mother should not be an access holder. While I have found it was not a palpable and overriding error for Her Honour to make these findings of fact on the evidence before her, there may have been additional or different evidence if the mother had notice of the order [the father] was seeking. The mother presented her case to respond to the Society's position that she be an access holder. Her case would likely have been different had she been responding to [the father's] request that she be only an access recipient. I find this breached the mother's rights to procedural fairness.

In my view, it is reasonable for the mother to feel she was denied her rights to procedural fairness at trial in accordance with the Family Law Rules. As a result, the mother's ability to present her case was limited. This is unreasonable and a palpable and overriding error. [Emphasis added.]

[25] Having found that the trial judge made an error, the appeal judge went on to decide that the mother should be an access holder based on her own analysis of the evidence:

The Society determined it was in the child's best interests that the mother be an access holder despite being aware of her challenges. The evidence shows that the mother made efforts throughout to co-operate with the Society and sought resources to improve her parenting. She signed Statements of Agreed Facts. She admitted the child was in need of protection and consented to orders. While she strenuously argued her position for the return of the child to her at trial and on this appeal, I do not find that she has been unduly litigious. While she raised concerns about the child's care in the foster home, there is no evidence she was belligerent or disruptive to the relationship between the child and the foster parent. The Communication Book in evidence shows positive respectful exchanges between the mother and the foster mother.

I have considered the evidence of the mother's attributes in the context of the attributes of parents identified in the case law as potentially impairing children's future opportunities for adoption, where those parents are made access holders. I have also considered the benefit of the preservation of the strong bond between the child and her mother. I find that it is in [the child's] best interests for the mother to be an access holder.

[26] On appeal before this court, the mother makes an unusual argument. While she was successful in overturning the trial judge's determination that she should only be an access recipient, she argues that the appeal judge should have ordered a new trial on all issues, including the extended society care order, rather than deciding that the mother should be an access holder. In making this argument, the mother relies on the appeal judge's finding that there was a breach of procedural fairness, for which she says the usual remedy is to order a new hearing. The mother further relies on the appeal judge's statement that she may have led additional or different evidence at trial had she had notice of the possibility that she would only be an access recipient. She suggests that the opportunity to lead additional or different evidence at trial may have led to a different outcome on the extended society care order issue.

[27] We reject this argument.

[28] Relying on this court's decision in Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82, leave to appeal requested, [2025] S.C.C.A. No. 125, the mother argues that, in the normal course, a finding that there was a breach of procedural fairness should lead to a new trial. This is not entirely accurate. In the normal course, where a court finds a breach of procedural fairness, the decision should be quashed or set aside: Vento Motorcycles, at para. 29. However, this does not necessarily lead to the need for a new trial. Section 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, sets out the powers of an appellate court which are to (a) "make any order or decision that ought to or could have been made by the court or tribunal appealed from", (b) "order a new trial" or (c) "make any other order or decision that is considered just". Where an appellate court finds a breach of procedural fairness, the court may be able to decide the issue based on the evidentiary record below and the submissions of counsel: Jones v. Quinn, 2024 ONCA 315, 59 R.P.R. (6th) 56, at para. 93; Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401, 17 C.P.C. (8th) 1, at paras. 15-16, leave to appeal refused, [2018] S.C.C.A. No. 214; Slawter v. Bellefontaine, 2012 NSCA 48, 318 N.S.R. (2d) 29, at paras. 5-6, 56-57. Whether an appeal court should order a new trial or decide the issue itself depends on the circumstances of the case and whether the court is satisfied that it has the evidence necessary to decide the issue.

[29] In this case, the breach of procedural fairness only related to one discrete issue. There would have been no basis for ordering a whole new trial on all issues. Rather, if a new hearing was necessary, it would have been limited to the issue of the mother's access holder status and would not have extended to all issues, including whether an extended society care order was appropriate.

[30] More importantly, we are not persuaded that it was an error for the appeal judge to determine that the mother should be an access holder rather than sending this one issue back to the trial court. It is evident from the appeal judge's reasons that, while she found a lack of procedural fairness on this discrete issue, she was also satisfied that the trial judge considered the wrong factors in deciding that the mother should not be an access holder. It is further evident that the appeal judge was satisfied that the evidence available from the trial allowed her to determine this issue. In particular, she was satisfied that the evidence did not support a finding that the mother would interfere with the child's future opportunities for adoption. The appeal judge's determination on this point was bolstered by the Society's position that the mother should be an access holder.

[31] The mother's reliance on Vento Motorcycles for the proposition that a new trial is required on all issues is misplaced. In that case, this court held that a breach of natural justice, namely a finding of reasonable apprehension of bias, required a new hearing because the arbitration as a whole had been tainted. In this case, it is clear from the appeal judge's reasons that the breach of procedural fairness only affected the trial judge's determination that the mother should not be an access holder. It was only in relation to this discrete issue that the mother did not have an adequate opportunity to respond at trial. There was no finding by the appeal judge, nor would there be any basis for such a finding, that the lack of procedural fairness on this discrete issue tainted the decision as a whole.

[32] The mother suggests that the whole decision was tainted because the trial judge relied on the same evidence to determine that an extended society care order should be made as she did in determining that the mother should not be an access holder. This does not mean that the decision was "tainted". It may mean that the trial judge considered irrelevant factors, as found by the appeal judge, when deciding whether the mother should be an access holder, but it does not mean that the trial judge committed any errors in deciding that the court should make an extended society care order.

[33] Notably, the mother does not attack the appeal judge's conclusion that she should be an access holder. In fact, during oral argument, she conceded that, if we were not persuaded that a new trial is required on all issues, she is not seeking a new trial on her access status. Indeed, having succeeded on this issue, she has no interest in a new trial on this issue alone.

[34] Accordingly, we see no basis for ordering a new trial based on the appeal judge's finding of a lack of procedural fairness.

Other Grounds of Appeal

[35] While the mother's argument at the hearing before us focused on the appropriate remedy for the finding of procedural unfairness, she also relied on the issues raised in amicus curiae's factum in support of her appeal. For the most part, the issues raised in that factum are a re-argument of the issues raised before the appeal judge in relation to the extended society care order.

[36] Except for the issue of whether the mother should be an access recipient or an access holder, the appeal judge upheld the trial judge's order. In doing so, she recognized that the issues raised on appeal were questions of fact or mixed fact and law. She properly deferred to the trial judge's decision. We see no error in the appeal judge's determination that the trial judge did not err in ordering extended society care.

[37] We are also not persuaded that the fresh evidence should change the outcome of the proceedings. Much of the evidence provided by the mother was already before the appeal judge. It shows that the mother continues to make efforts to access services and organizations that may be helpful to her in various ways, but it does not address the trial judge's underlying determinations that the mother is not able to provide a safe and stable home for the child and that returning the child to live with the mother would place the child at risk of harm. The Society's evidence reinforces the conclusion that there has been no material change in the mother's ability to provide a stable home for her child. The affidavits submitted by the Society refer to the mother's recent circumstances, including a tumultuous reunion with the father that resulted in criminal charges against both parties.

[38] Before concluding, we wish to emphasize that everyone has recognized, including the Society and the courts below, that the mother loves and deeply cares for her child. Society workers have regularly observed the effort and care she puts into her visits with the child. In addition, they have witnessed the love and affection the child has for the mother. At the same time, as found by the trial judge and as supported by the fresh evidence, multiple factors have persistently prevented the mother from providing the child with a safe and stable home. These factors include apparent cognitive and mental health issues, drug use, unstable employment and housing, and a volatile and at times violent on-and-off relationship with the father. Unfortunately, despite the mother's love and affection for her child, the record, including the fresh evidence, fully supports the trial judge's determination that an extended society care order is warranted in this case.

[39] We also agree with the Society that there has been significant delay in this matter. This case has gone well beyond the time limits set out in s. 122(1)(a) of the CYFSA for interim society care orders, especially where children are under six years old. Fortunately, it appears that the Society has already identified a suitable adoption placement for the child. The child has had a relationship with her potential adoptive family since she was first taken into care.

Disposition

[40] The motions for fresh evidence are granted. The appeal is dismissed.

[41] As agreed between the parties, we make no order as to costs.

"L. Sossin J.A."

"L. Favreau J.A."

"D.A. Wilson J.A."

Footnotes

[1] This appeal is subject to a publication ban pursuant to s. 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1.

[2] S.B. is referred to as the "father" throughout the decision. He is not the child's biological father, who is unknown. The father has been the mother's partner at various times and was found to be a parent of the child in earlier proceedings. The father attended the hearing of this appeal via Zoom. He did not make any submissions. However, prior to the hearing, he indicated that he supported the position of the Society on the appeal.

[3] Amicus curiae was appointed by this court because the mother was originally unrepresented. Amicus curiae filed a factum on the appeal. The mother retained Mr. Kirby as counsel before the appeal was heard. He filed a factum on the mother's behalf. In advance of the hearing, it was agreed that amicus curiae would not make submissions on the appeal unless the court had any questions. It was further agreed that the mother would rely on the submissions in amicus curiae's factum in addition to the submissions made by her counsel.