Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165

C.M. Appellant

v.

Catholic Children's Aid Society of Metropolitan

Toronto and the Official Guardian Respondents

Indexed as: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.)

File No.: 23644.

1993: December 7; 1994: May 5.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for ontario

Family law ‑‑ Appellate court status review under Child and Family Services Act ‑‑ Child taken into protection and ultimately made Crown ward with access to birth parent denied in anticipation of adoption ‑‑ Child's status subject to review under Act ‑‑ Whether fresh evidence admissible on status review ‑‑ Whether status review reconsideration of initial decision or assessment of current situation ‑‑ Interplay between Act's requiring preservation and integrity of family unit if possible and its requiring consideration of best interests of the child ‑‑ Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1, 37(2)(f), (g), (3), 57(1), (3), (9), 58(1)(a), (b), 59(2)(a), (b), (c), (d), 65(1)(a), (b), (c), (3)(a), (b), (c), (d), (e), (f), (g), 69(6), 70(1), (3)(a), (b).

Respondent society took S.M. into protection on several occasions and supervised her mother (C.M.) on the skills of parenting. S.M. has been in the respondent society's care from February 1989 when she was made a ward of the society, on consent, for four months. Throughout this wardship, the society continued to work with C.M. and facilitated regular visits with S.M. Nonetheless, the bonding ‑‑ the development of an interactive relationship and the attachment between S.M. and her birth mother ‑‑ remained minimal. In December 1989, after a second four‑month wardship, the respondent society brought a status review application seeking an order of Crown wardship without access for the purposes of adoption. The appellant opposed the motion and the matter was dealt with sporadically throughout 1991. On February 17, 1992, the Ontario Court (Provincial Division) ordered that S.M. be returned to the appellant on the basis that court intervention was no longer necessary to protect the child. The judge considered C.M. capable of acquiring the skill to care for her daughter adequately. The respondent society obtained a stay of the order and unsuccessfully appealed to the Ontario Court (General Division). The Court of Appeal granted a stay of the order for return pending appeal and a motion for the introduction of fresh evidence. It allowed the appeal, set aside the order for the return of the child to the mother and ordered that the child be made a Crown ward, without access, for the purposes of adoption. The appellant birth mother, C.M., appealed this order. The main issue was the interpretation of Ontario's Child and Family Services Act, particularly with respect to status review applications. An incidental question concerned the introduction of fresh evidence on appeal. The new evidence sought to be admitted concerned the consistent and repeated assertions of the child that she regarded her foster family as her real family, that she did not want to see her birth mother and that attempts to implement access visits with the birth mother had become almost impossible because of the child's negative reactions ‑‑ emotional, psychological and physical going to her very well‑being ‑‑ to them.

Held: The appeal should be dismissed.

(a) Fresh Evidence on Appeal

Section 43(8) of the Child Welfare Act deals with the admission of fresh evidence on appeal. The test formulated in Re Genereux and Catholic Children's Aid Society of Metropolitan Toronto with respect to similar remedial legislation, that the judge on appeal may exercise his or her discretion and hear further evidence so long as it is relevant to a consideration of the best interests of the child, probably did not intend to depart significantly from the four‑part test in R. v. Palmer and R. v. Stolar. It is very attune to the philosophy and objectives of the Act and should be applied in cases determining the welfare of children where accurate and up‑to‑date information is essential. Although it might be more in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance.

Both the Court of Appeal and this Court were entitled to consider the fresh evidence submitted; it met the test for admission. This evidence could not have been adduced before, was highly relevant in that it enabled the court to make determinations on an accurate picture of the situation at hand, was potentially decisive as to the child's best interests and was credible. In addition, the evidence was uncontroverted and bridged the gap between the evidence submitted before the Court of Appeal in May 1993 and the present situation.

(b) The Status Review Hearing

The Child and Family Services Act specifies the procedure to be followed, the evidentiary requirements under this process and, most of all, spells out the objectives of the legislation in s. 1. The first and "paramount" objective is the promotion of "the best interests, protection and well-being of children". The Act carefully seeks to balance the rights of parents (and, to that end, the need to restrict state intervention) with the rights of children to protection and well‑being. Status review hearings are part of the procedure set out in the Act to insure that the child protection policy directives are being properly carried out by the orders made under the Act and, to that end, all orders made pursuant to s. 57(1) are subject to time limits and to review pursuant to s. 64(1).

The function of the status review hearing is not to retry the original need for a protection order but rather to evaluate whether there is a need for a continued order for protection. Once a finding of the need for protection has originally been made, there is still the requirement, upon a status review, to consider whether the child is or is no longer in need of future protection. Children's needs are continually evolving and these ever‑changing circumstances must be taken into account. The courts must continually evaluate the need for state intervention in order to insure that the objectives of the Act are being met. The determination of continued need cannot be res judicata with respect to s. 57(1) of the Act.

A two‑fold examination must be undertaken on a status review. The first is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. Regardless of the conclusion reached at this first stage, the need for continued protection encompasses more than the examination of the events that triggered the intervention of the state in the first place. The court must look at the child's best interests. This flexible approach is in line with the objectives of the Act, as it seeks to balance the best interests of children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail. In determining what is in the child's best interest, the Act provides extensive guidance. Notwithstanding the specific provisions of the Act, however, traditional discussions with respect to best interests remain highly relevant. The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding and the child's desires, which the Act contemplates as well.

Within the realm of the "best interests of the child", the most important factor in this case concerned the psychological bonding of the child to the foster family. The emotional well‑being of a child is of the utmost importance, particularly where the evidence points to possible long-term adverse consequences resulting from the removal of the child from his or her foster family and the return to his or her birth parents. The focus of maintaining family units is only commensurate as long as it is in the best interests of the child; otherwise it would be at cross purposes with the plain objectives of the Act. The best interests of a child require different solutions over time and such interests may have to take precedence over any parental interests.

The need for continued protection was easily established here. The determination of whether the child continues to be in need of protection cannot solely focus on the parent's parenting ability. It must also have a child‑centred focus and must examine whether the child, in light of the interceding events, continues to require state protection.

(c) Access

Once Crown wardship has been ordered, s. 58(1) of the Act creates a presumption against access. Section 59(2) specifies the unusual circumstances in which access can be ordered. The burden is that of the applicant. Here, none of the exceptions set out in s. 59(2) was applicable or proven. Although there may be cases where temporary or transitional access could be beneficial to the child, the situation here did not allow for such a solution.

Cases Cited

Applied: Re Genereux and Catholic Children's Aid Society of Metropolitan Toronto (1985), 53 O.R. (2d) 163; referred to: Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Price, [1993] 3 S.C.R. 633; Nova Scotia (Minister of Community Services) v. S. (S.M.) (1992), 41 R.F.L. (3d) 321; Children's Aid Society of Renfrew County v. L.P.W. (1989), 32 O.A.C. 394; M.M. v. B.M. (1982), 37 O.R. (2d) 716; B.(R.) v. Children's Aid Society of Metropolitan Toronto (1992), 43 R.F.L. (3d) 36; Racine v. Woods, [1983] 2 S.C.R. 173; King v. Low, [1985] 1 S.C.R. 87; Young v. Young, [1993] 4 S.C.R. 3; Re Baby Duffell, Martin v. Duffell, [1950] S.C.R. 737; L.(K.) v. C.A.S., Stormont, Dundas and Glengarry (1988), 12 R.F.L. (3d) 76; Children's Aid Society of Ottawa v. G.M. (1978), 3 R.F.L. (2d) 226; Catholic Children's Aid Society of Metropolitan Toronto and G. (C.), [1986] O.J. No. 1746 (Q.L.); Children's Aid Society of Halifax v. A. (M.), [1986] N.S.J. No. 423; Children's Aid Society of Winnipeg v. Frohnen, [1975] 2 W.W.R. 27; In re McGrath, [1893] 1 Ch. 143; Re Moores and Feldstein (1973), 12 R.F.L. 273; C.C.A.S. of Metro. Toronto v. H.(K.) (1987), 6 R.F.L. (3d) 1 (Ont. Prov. Ct. (Fam. Div.)), rev'd (1988), 21 R.F.L. (3d) 115 (Ont. Dist. Ct.), aff'd sub nom. G.(C.) v. H.(J.) (1989), 23 R.F.L. (3d) 300; G. (A.) v. C.C.A.S., Metro. Toronto, Ont. Gen. Div., No. 105/89, September 19, 1990, summarized at [1990] W.D.F.L. 1222; New Brunswick (Minister of Health and Community Services) v. C. (G.C.), [1988] 1 S.C.R. 1073; New Brunswick (Minister of Health and Community Services) v. S.G. and S.A. (1989), 100 N.B.R. (2d) 357; Langille v. Children's Aid Society of Halifax, N.S.C.A., June 18, 1993, unreported; Winnipeg Child & Family Services v. F.(A.C.) (1992), 42 R.F.L. (3d) 337; Tearoe v. Sawan, B.C.C.A., Victoria Registry No. V01916, August 19, 1993, unreported.

Statutes and Regulations Cited

Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1(a), (b), (c), (d), 37(2)(f), (g), (3), 57(1), (3), (9), 58(1)(a), (b), 59(2)(a), (b), (c), (d), 65(1)(a), (b), (c), (3)(a), (b), (c), (d), (e), (f), (g), 69(6), 70(1), (3)(a), (b).

Child Welfare Act, R.S.O. 1980, c. 66, s. 43(8).

Children and Family Services Act, S.N.S. 1990, c. 5, s. 49(5).

Rules of the Provincial Court (Family Division), R.R.O. 1980, Reg. 810, s. 70.

Supreme Court Act, R.S.C., 1985, c. S‑26, s. 62(3) [am. by S.C. 1990, c. 8, s. 31].

Authors Cited

Barnhorst, Richard F. "Child Protection Legislation: Recent Canadian Reform", in Barbara Landau, ed., Children's Rights in the Practice of Family Law, p. 255. Toronto: Carswell, 1986.

Coleman, Phyllis. "A Proposal for Terminating Parental Rights: `Spare the Parent, Spoil the Child'" (1993), 7 Am. J. Fam. L. 123.

Dreidger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

MacKinnon, Jennifer. "Best Interests of the Child in Protection Hearings: A Move Away From Parental Rights?" (1980), 14 R.F.L. (2d) 119.

McCall, M. L. "An Analysis of Responsibilities in Child Welfare Systems" (1990), 8 Can. J. Fam. L. 345.

Wilkins, H. D. Status Review Applications. Canadian Bar Association (Ontario), Continuing Legal Education Program on The Child and Family Services Act. March 22, 1986.

APPEAL from a judgment of the Ontario Court of Appeal allowing an appeal from a judgment of Macdonald J. dismissing an appeal from an order of Bean Prov. Ct. J. Appeal dismissed.

Ian R. Mang and T. Michele O'Connor, for the appellant.

Marvin M. Berstein and Allan S. Maclure, for the respondent Catholic Children's Aid Society of Metropolitan Toronto.

Elaine Freedman, Q.C., and Catherine Bellinger, for the respondent the Official Guardian.

The judgment of the Court was delivered by

L'Heureux-Dubé J. -- This appeal arises from a dispute between the Catholic Children's Aid Society of Metropolitan Toronto ("respondent society") and the mother, C.M., of a young child, S.M., now 7½ years old, as to the need for protection and adoption of the child, and involves the interpretation of the Ontario Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA or Act) provisions regarding status review hearings. The interaction between the best interests of the child and the many other considerations referred to in the Act with respect to status review applications is at the heart of the present appeal.

Facts

The appellant mother, C.M., came to Canada from Portugal, in 1979, at the age of twenty. She worked in a restaurant and a hotel until 1984, when she had a child whom she subsequently gave up for adoption. Soon thereafter, she went back to Portugal for a two-year period, returning to Canada in December 1985. Upon her return, she worked in a chicken factory until the birth of her daughter, S.M., on September 28, 1986. A year later, the father of the child was forced to leave the country because of immigration difficulties.

The appellant's first contact with the respondent society was on October 24, 1986, when S.M. was one month old. Four months later, on February 27, 1987, S.M. was taken into protection by the respondent society on the basis of information that the appellant had a history of leaving her daughter alone, did not adequately care for the child, had physically abused the child and had threatened to kill her. The child was left in the care of C.M., subject to an order for supervision. It seems, however, that during this supervisory period there was very little improvement in the manner in which C.M. cared for her young daughter and, consequently, on June 15, 1987, S.M. was apprehended and, three days later, placed in the care of the society. Following this, on October 22, 1987, S.M. was found to be in need of protection and made a ward of the respondent society for two months. Upon expiration of the order, S.M. was returned to her mother's care for a six-month period, once again under the supervision of the respondent society. During this period, despite the efforts of the society to assist C.M. in learning to care properly for her young daughter, difficulties continued and, although C.M. accepted the assistance of the respondent society's social workers and psychologists, improvements continued to be minimal. According to the evidence adduced at trial, C.M. did not have a good understanding of her daughter's needs and abilities and, as a result, her parenting skills remained weak and the bond between mother and child failed to unfold properly. In December 1987, the respondent society, once again, applied to have S.M. returned to its care and custody and such order was granted. The child remained in the care of the respondent society until March 19, 1988 when, following an order that the child be returned to her mother, another attempt was made at reintegrating the child into her natural home under a supervision order. Throughout this time, as they had in the past, the respondent society and C.M. cooperated to better the appellant's parenting skills in order that she could meet her daughter's physical, psychological and emotional needs. However, despite the efforts made, the appellant's capabilities did not improve and she often had difficulty understanding the need for the continued services and treatment of the respondent society. As a consequence of the limited success of such assistance, the supervision order was terminated on October 6, 1988 pursuant to an agreement whereby the respondent society and the appellant would continue to work together voluntarily.

On February 22, 1989, S.M. was again apprehended and taken into protection by the respondent society. The incident which precipitated the protective measure involved C.M.'s entering a bank with her daughter (who was crying and found in need of care) and screaming that someone was trying to kill her. As a result, C.M. was hospitalized and S.M. was taken into care by the respondent society and made a ward for four months on consent. S.M. has been in the care of the respondent society since that time. Throughout this wardship, the respondent society continued to work with C.M. and facilitated regular visits with S.M. Nonetheless, the bonding, the development of an interactive relationship and the attachment between S.M. and her mother remained minimal. On August 17, 1989, the child was made a ward of the respondent society for another period of four months. On December 14, 1989, the respondent society brought a status review application seeking an order of Crown wardship, without access for the purposes of adoption. The appellant having opposed the motion, the matter went to trial before the Ontario Court Provincial Division, on January 7, 1991 and continued sporadically throughout 1991, for a total of nine days, with the last day of evidence being heard December 2, 1991. On February 17, 1992, Bean Prov. Ct. J. made an order, pursuant to s. 57(9) of the Child and Family Services Act, that the child be returned to the appellant on the basis that court intervention was no longer necessary to protect S.M. in the future. He was of the view that C.M. was capable of acquiring the skill to care for her daughter adequately. The respondent society obtained a stay of the order and appealed to the General Division. The hearing on appeal lasted 9 days from May 19, 1992. On December 14, 1992, Macdonald J. delivered written reasons dismissing the appeal, which the respondent society appealed. A stay of the order for return pending appeal was obtained. After granting a motion for the introduction of fresh evidence, the Court of Appeal allowed the appeal and set aside the order for the return of the child to the mother. On May 4, 1993, the Court of Appeal ordered that the child be made a Crown ward, without access for the purposes of adoption. It is this judgment which the appellant mother, C.M., presently appeals before our Court.

Relevant Statutory Provisions

The Ontario Child and Family Services Act governs matters of child protection in Ontario. It provides for a status review of protection orders, the focus of this appeal. A proper starting point, therefore, is to reproduce those provisions of the Act which are most relevant to such a review:

1. The purposes of this Act are,

(a)as a paramount objective, to promote the best interests, protection and well-being of children;

(b)to recognize that while parents often need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent;

(c)to recognize that the least restrictive or disruptive course of action that is available and is appropriate in a particular case to help a child or family should be followed;

(d)to recognize that children's services should be provided in a manner that,

(i) respects children's needs for continuity of care and for stable family relationships, . . .

37. . . .

(2) A child is in need of protection, where,

(f)the child has suffered emotional harm, demonstrated by severe,

(i)anxiety,

(ii)depression,

(iii) withdrawal, or

(iv) self-destructive or aggressive behaviour,

and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(g)there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm;

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1.The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2.The child's physical, mental and emotional level of development.

5.The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6.The child's relationships by blood or through an adoption order.

7.The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

9.The child's views and wishes, if they can be reasonably ascertained.

10.The effects on the child of delay in the disposition of the case.

11.The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12.The degree of risk, if any, that justified the finding that the child is in need of protection.

13.Any other relevant circumstance.

57.--(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child's best interests:

1. . . . [Supervision order]

2. . . . [Society wardship]

3. . . . [Crown wardship]

4. . . . [Consecutive orders of society wardship and supervision]

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied the less restrictive alternatives, including non-residential services and the assistance referred to in subsection (2),

(a)have been attempted and have failed;

(b)have been refused by the person having charge of the child; or

(c)would be inadequate to protect the child.

(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

58.--(1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

59.-- . . .

(2) Where a child is made a Crown ward under paragraph 3 of subsection 57 (1), the court shall not make an order for access by the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that,

(a)permanent placement in a family setting has not been planned or is not possible, and the person's access will not impair the child's future opportunities for such placement;

(b)the child is at least twelve years of age and wishes to maintain contact with the person;

(c)the child has been or will be placed with a person who does not wish to adopt the child; or

(d)some other special circumstance justifies making an order for access.

65.--(1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a)vary or terminate the original order made under subsection 57 (1), including a term or condition or a provision for access that is part of the order;

(b)order that the original order terminate on a specified future date; or

(c)make a further order or orders under section 57.

(3) Before making an order under subsection (1), the court shall consider,

(a)whether the grounds on which the original order was made still exist;

(b)whether the plan for the child's care that the court applied in its decision is being carried out;

(c)what services have been provided or offered under this Act to the person who had charge of the child immediately before intervention under this Part;

(d)whether the person is satisfied with those services;

(e)whether the society is satisfied that the person has co-operated with the society and with any person or agency providing services;

(f)whether the person or the child requires further services;

(g)whether, where immediate termination of an order had been applied for but is not appropriate, a future date for termination of the order can be estimated; . . .

70.--(1) Subject to subsection (3), the court shall not make an order under this Part that results in a child being a society ward for a continuous period exceeding twenty-four months.

(3) Where the twenty-four month period referred to in subsection (1) expires and,

(a)an appeal of an order made under subsection 57 (1) has been commenced and is not yet finally disposed of; or

(b)the court has adjourned a hearing under section 65 (status review),

the period shall be deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 65, as the case may be.

Judgments

Ontario Court Provincial Division (Bean Prov. Ct. J., February 17, 1992)

Rendering judgment on a motion brought by the respondent society on December 14, 1989, seeking an order for Crown wardship of S.M., Bean Prov. Ct. J. examined his role in such a status review application. He concluded that he had to satisfy himself that intervention through a court order was still necessary to protect the child in the future and if so, to proceed to make a further order under s. 57. According to him, the concept of protection must be viewed separately from that of the best interests and well-being of the child. In this light, he evaluated the circumstances of the parties. Although he was aware of the attachment between S.M. and her foster parents, he focused on the appellant's psychiatric history as regards the possibility of future harm to S.M. and concluded:

Even if there is some slight risk of a psychotic episode in the future, I am not satisfied that intervention through a court order is necessary to protect the child. The mother's plan is to return with her child to live with her family in Portugal. Surely the child will be adequately protected by the relatives with whom she will live and by the help that they and the Social Services in Portugal can provide. Drs. De Lucas and Allodi were of that opinion, which I accept.

I am satisfied that there is no physical harm or danger which necessitates intervention through a court order but is there any other harm or danger? I am not concerned with the "best interests" or "well-being" of the child, nor am I concerned with injury or danger against which the child can be protected without the necessity of a court order. [Emphasis added.]

As a consequence, Bean Prov. Ct. J. held that he was required to make an order under s. 53(9), now s. 57(9), for the return of the child to C.M. In Appendixes A, B, and C to his reasons, Bean Prov. Ct. J. expanded on the conclusions he had reached. In Appendix A, Bean Prov. Ct. J. examined the effect of s. 61(3), now s. 65(3), of the Act on status review proceedings. In his view, the seven factors set out in s. 61(3), now s. 65(3), govern such determination:

. . . in my opinion, when determining "best interests" for the purpose of section 61(1) (now section 65(1)), the court must consider whether those "grounds" still exist. What are those "grounds"? In my opinion, the grounds upon which an original order is made under section 53 (now section 57) are, first, the condition or situation on the basis of which the child was found to be in need of protection, second, the relevant facts found by the court which satisfied the court that intervention through a court order was necessary to protect the child in the future and, third, the relevant facts upon which the court determined that the original order was in the child's best interests.

It seems to me then, that viewed broadly subsection 61(3) (now subsection 65(3)) is an attempt by the legislature to cause the court to regard the order proposed on the status review proceedings in the light of all of the purposes of the Act, which do not only include acting in the child's best interests. [Italics in original; emphasis by underlining added.]

In Appendix B, Bean Prov. Ct. J. determined that, although the initial finding as to whether a child was in need of protection pursuant to s. 57(1) did not need to be reconsidered at the stage of status review hearing, the court must, however, examine whether an order is necessary to protect the child in the future before any consideration of the best interests of the child could be undertaken. Finally, in Appendix C, Bean Prov. Ct. J. resolved that where a prior order had been made on consent and the parties had agreed to a statement of facts pursuant to s. 70 of the Rules of the Provincial Court (Family Division), R.R.O. 1980, Reg. 810, the parties were contractually bound by those facts in future proceedings. Thus, additional evidence could not be tendered by the parties at the status review hearing. In the result, Bean Prov. Ct. J. dismissed the respondent society's status review application.

Ontario Court (General Division) (Macdonald J., December 14, 1992)

Macdonald J. set out the following six questions she had to answer on an appeal from a status review application:

#1) Should the Appellate Court Overturn the Trial Judge's Findings of Fact in these Circumstances?

#2) What are the Appropriate Criteria to be Applied on a Status Review Application pursuant to section 64 of the Child and Family Services Act? Is it Necessary to Make a Finding as to the Child's Best Interests? If so, What are the Best Interests of the Child in the Circumstances of this Case?

#3) Is the Secondary Finding in s. 57(1) of the CFSA Applicable to Status Review Proceedings?

#4) Does the Principle of Res Judicata or the Issue of Estoppel Apply to Agreed Statements of Fact Tendered in Previous Proceedings Involving the Same Parties?

#5) The Application and Impact of Section 70 of the CFSA to Proceedings Under the Act.

#6) The Role of Counsel In Child Protection Proceedings.

With regard to the first issue, Macdonald J. held that she had "no difficulty concluding that an Appellate Court has jurisdiction to overturn the findings of fact of a Trial Judge and make a substituted order". According to the test set out in Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, however, such intervention and exercise of discretion is only possible where the trial judge has made a "palpable and overriding error". After reviewing the trial judge's findings of fact, she concluded:

Applying the test enunciated by the Supreme Court of Canada, there is nothing in the evidence before me which would indicate that Judge Bean made a "palpable or overriding error" which affected his assessment of the facts. Accordingly, I am not prepared to overturn the findings of fact of His Honour Judge Bean in these circumstances.

However, Macdonald J. found in the court's broad parens patriae jurisdiction authority to review the evidence to safeguard the interests of children. As a consequence, she determined that, based on the evidence, the appellant was "fit to parent her child regardless of whether or not she returns to Portugal".

With regard to the second issue, Macdonald J. discussed the appropriate criteria to be applied on a status review application pursuant to s. 65 of the Act. In so doing, she examined the various provisions of the CFSA which relate to this inquiry. It was her view that s. 65 incorporates the various dispositions under s. 57(1) and that, in making an order under s. 65(1), the court must consider s. 65(3). She, then, looked at s. 37(3) and commented that, pursuant to s. 37(3)(13), the considerations with regard to the best interests of children were "not exhaustive". With regard to the reasons of Bean Prov. Ct. J., she held that the trial judge's view that the best interests of the child were irrelevant on a status review hearing was "totally irreconcilable" with the purpose of the Act and that the trial judge had erred in not reflecting upon S.M.'s best interests. In light of the trial judge's error, Macdonald J. felt that, in a child protection appeal, a substituted order should be made rather than ordering a new trial and, as a consequence, she dealt with the best interests of the child. She weighed the effect of the psychological bonding between S.M. and her foster parents as well as the fact that she had a minimal bond with her mother. She noted that S.M. had always been made "aware of the fact that someday she may be going to live with her real mother":

In my view, the understandable "bonding" which has occurred between [S.M.] and her foster family would not be an insurmountable obstacle to the child's reintegration with her natural mother. I am satisfied that no irreparable harm would result if the foster placement is disturbed at this point. In addition, it is improper that the lethargy of our Court system give rise to a status quo argument and prejudice the rights of the natural mother, unless disturbing the status quo would result in irreparable harm to the child.

Accordingly, Macdonald J. concluded that the long-term best interests of the child would be best served by returning S.M. to her mother.

With regard to the finding of the need of protection, Macdonald J. held that a court, on a status review application, pursuant to s. 65(3), had to determine whether an order was necessary to protect the child in the future, regardless of the fact that the initial finding as to whether the child was originally in need of protection must be considered res judicata.

As to the fourth issue, Macdonald J. concluded that Bean Prov. Ct. J. had erred in finding that the parties could not adduce new evidence on a status review, when the courts below had proceeded on the basis of an agreed statement of facts, since, on the clear wording of the agreement, the parties had reserved their right to call further evidence. In her opinion, receipt of current and up to date factual information was in line with the task of the court to consider the best interests of the child and, as such, new evidence should be admitted.

With regard to the application and impact of s. 70 or what may be described as the 24-month rule, Macdonald J. observed that such time limits were consistent with the philosophy of the Act:

In this case, the intention of the CFSA and in particular section 70 have clearly been violated. Had section 70 been adhered to, the psychological bonding that has occurred between [S.M.] and her foster home would not have occurred to the extent that it has.

Finally, Macdonald J. addressed the role of counsel for the child in child protection proceedings. This issue does not arise in the present appeal.

At the end of the day, although Macdonald J. concluded that the trial judge had erred by failing to appreciate the best interests of the child adequately, she did not overrule his findings of fact. Based on these findings, in light of the best interests of the child and the fact that the child was, in her view, not in need of a court order for further protection, Macdonald J. upheld the conclusion of Bean Prov. Ct. J. and ordered that S.M. be returned to the care of her mother.

Ontario Court of Appeal (Krever, Catzman, Weiler JJ.A., May 4, 1993)

In reaching a unanimous conclusion to allow the appeal, the Court of Appeal allowed the motion for fresh evidence made on behalf of the child and the respondent as well as the appellant. This new evidence consisted of affidavits of social workers, an up-to-date assessment of S.M. by the respondent society's psychologist, as well as that of Dr. Wilkes, a psychiatrist retained by the official guardian, an assessment of C.M. and her new spouse by Dr. Allodi and transcripts of the cross-examination of all of the affiants except Dr. Allodi. On the merits of the case, according to the Court of Appeal, the essential issue was whether, on a status review hearing under s. 65 of the Act, the best interests of the child must be the prime consideration:

We agree that a children's aid society, as the representative of the state, must continue to justify its intervention by showing that a court order is necessary to protect the child in the future. We do not agree, however, that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of the natural parent, that the child must be returned to the care of the natural parent. A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the care givers, whom the child regards as her psychological parents is severed. Such a factor is a well recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on a status review hearing.

In her reasons for judgment, Macdonald J. correctly held that the trial judge was in error in holding that the best interests of the child were irrelevant in a status review hearing. She considered the best interests of the child, [S.M.], in the context of "whether or not the child is in need of protection from his or her natural home". She also failed to consider adequately whether a court order was necessary to protect [S.M.] from the emotional harm she would suffer if she were removed from the care of her foster parents with whom she has lived most of her life, and whom she regards as her psychological parents.

Thus, the Court of Appeal for Ontario allowed the appeal and ordered that S.M. be made a ward of the respondent society, for the purposes of adoption, without access by the appellant.

Issues

The main issue in this appeal is the interpretation of the Ontario Child and Family Services Act, particularly with respect to status review applications. An incidental question concerns the introduction of fresh evidence on appeal, which I will deal with first.

Fresh Evidence on Appeal

That this Court has discretion to admit fresh evidence on appeal is not contested. Section 62(3) of the Supreme Court Act, R.S.C., 1985, c. S-26, as am., reads:

62. . . .

(3) The Court or a judge may, in the discretion of the Court or the judge, on special grounds and by special leave, receive further evidence on any question of fact, such evidence to be taken in the manner authorized by this Act, either by oral examination, by affidavit or by deposition, as the Court or the judge may direct.

For its part, s. 69(6) of the CFSA gives courts discretion to admit fresh evidence on appeal:

69. . . .

(6) The court may receive further evidence relating to events after the appealed decision.

The criteria which have guided courts in the exercise of their discretion to admit fresh evidence on appeal have been examined in a number of cases, both criminal and civil, from which guidelines have emerged. The appellant C.M. and the respondent society propose two divergent approaches. For the appellant, the conventional approach to the admission of such evidence in a criminal context is applicable. She relies on Palmer v. The Queen, [1980] 1 S.C.R. 759, later reaffirmed in R. v. Stolar, [1988] 1 S.C.R. 480, which established the well-known stringent four-part test. (As an aside, it is useful to mention that, even in criminal matters, the rules in Palmer and Stolar are not cast in stone and are not as inflexible as the appellant would like us to find: R. v. Price, [1993] 3 S.C.R. 633.) On this test, according to the appellant, the fresh evidence submitted by the respondent society would not be admissible since Stolar, supra, was found to be applicable in child protection proceedings and, in particular, has been applied in Nova Scotia (Minister of Community Services) v. S. (S.M.) (1992), 41 R.F.L. (3d) 321 (N.S.C.A.). In that case, Chipman J.A., for the court, disallowed the admission of the fresh evidence on the basis that (at pp. 330-31):

If such evidence were to be received and weighed, the court would have to consider it against the backdrop of all of the evidence which it did not hear -- that which was before the trial judge and upon which findings have already been made. A finality to the fact-finding process has to be reached. Experience has shown that this is generally best done by the original trier of fact.

Chipman J.A. reached this determination based on this court's reasoning in Palmer and Stolar, supra, regardless of the fact that s. 49(5) of the Children and Family Services Act, S.N.S. 1990, c. 5, "gives this court, sitting on appeal, a discretion to receive further evidence relating to events after the appealed order" (p. 330).

The respondent society, on the other hand, argues that the proper approach is that advanced in Re Genereux and Catholic Children's Aid Society of Metropolitan Toronto (1985), 53 O.R. (2d) 163 (C.A.), pursuant to s. 43(8) of the Child Welfare Act, R.S.O. 1980, c. 66:

43. . . .

(8) On the hearing of the appeal and with leave of the county or district court hearing the appeal, further evidence relating to matters both preceding and subsequent to the making of the decision being appealed, may be received by affidavit, oral examination or as may be directed by the county or district court.

In that case, Cory J.A. (then of the Court of Appeal), after carefully examining the admissibility of new evidence on appeal when dealing with child welfare proceedings, asserted at pp. 164-65:

It can be seen that the judge hearing the appeal is granted a very wide discretion with no restrictions imposed. This is remedial legislation dealing with the welfare of children. It should be broadly interpreted. Undue restrictions should not be placed upon it. Specifically, narrow restrictions should not be read into the section when they do not appear in the legislation.

The judge on appeal, bearing in mind that he is dealing with the welfare of children, may determine that he will exercise his discretion and will hear further evidence so long as it is relevant to a consideration of the best interests of the child. [Emphasis added.]

Similar views were expressed in Children's Aid Society of Renfrew County v. L.P.W. (1989), 32 O.A.C. 394 (C.A.), where the Court of Appeal held that the appellate judge could consider fresh evidence on appeal, in the context of an appellate function, but not at a hearing de novo. In M.M. v. B.M. (1982), 37 O.R. (2d) 716 (C.A.), Brooke J.A., for the court, held at p. 716:

In our opinion, the judge was right in admitting the evidence of Dr. Selwyn Smith and the other evidence which he admitted and it may well be that it would have been wrong to refuse to admit it as it was relevant to the central issue to be decided which was what was in the best interest of the child. A County and District Court judge has a unique function to fulfill while hearing an appeal pursuant to the provisions of this statute. By s. 43 of the statute (Child Welfare Act, R.S.O. 1980, c. 66) he is empowered to hear evidence relating to matters which both precede or were subsequent to the decision under appeal. We think this wide power emphasizes the remedial nature of the Act and may well constitute an important feature in attempting to determine what is in the best interest of the child.

As set out above, the Ontario Child Welfare Act does contain s. 43(8), which, similar to the CFSA's s. 69(6), specifically deals with the admission of fresh evidence on appeal.

Counsel for the child supports the approach advanced by the respondent society and also relies on Genereux, supra, as the appropriate test in matters where the best interests of the child are the paramount concern.

Although I doubt that Genereux, supra, intended to depart significantly from the test of Palmer and Stolar, supra, its approach is to be commended. In my view, Genereux, supra, is not only consistent with the jurisprudence of this Court but is better suited to the child-centred focus of the CFSA, as it recognizes the importance of having accurate and up-to-date information on children whose fate often hangs on the determination by judges of their best interests. In light of this Court's broad discretion to admit fresh evidence and the wording and the spirit of the statute, Genereux, supra, is very attuned to the philosophy and objectives of the Act. Although it might be more in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance. If Genereux, supra, has enlarged the scope of the admission of fresh evidence on appeal, it has done so, in the present case at least, with regard to the final arm of the Stolar test, that is, whether the fresh evidence may affect the result of the appeal when considered with the other evidence. If that is so, and the fact that the admission of up-to-date evidence is essential in cases such as the one at hand, Genereux, supra, should be applied in cases determining the welfare of children.

Applying this test to the case at bar, the Court of Appeal was entitled to consider the fresh evidence submitted to it and so is this Court. The new evidence adduced before us by the respondent society consists of the following two affidavits. The first is from Dr. James Wilkes, a psychiatrist and Director of Child and Adolescent Psychiatry at Centenary Health Centre, sworn on October 28, 1993. It encompasses several reports including a written report detailing Dr. Wilkes' examination of S.M. which was provided to the respondent society on October 28, 1993. The second is an affidavit from Ms. De Sousa, a Child Management Worker employed by the respondent society, sworn on October 27, 1993. In her lengthy affidavit, Ms. De Sousa attests to events from her first involvement with respect to the implementation and supervision of access between S.M. and her mother in February 1993, up to her last visit on April 22, 1993. Another affidavit also submitted by the respondent society is from Ms. Maria Skultety, sworn on November 1, 1993, a law partner in the firm which represents the appellant mother. That affidavit had been submitted in response to the respondent society's application to terminate access prior to the hearing of this appeal and it details C.M.'s concerns that the respondent society has made only minimal attempts to facilitate access but that she also appreciates the need not to upset S.M. by enforcing access visits.

The above evidence provides details as to the nature and quality of C.M's relationship with her daughter, the efforts made by the respondent society to implement the interim access order made by Madam Justice McLachlin on August 23, 1993, the responses of both C.M. and S.M. to such attempts and failed attempts at access, the opinion of Dr. Wilkes as to the negative impact of the attempts to force access between C.M. and S.M. on the child as well as the potential future impact on S.M. and, finally, the concern expressed by C.M. as to the lack of access to her daughter. One of the most powerful features of this evidence is the fact that S.M. consistently and repeatedly made it clear to anyone who would listen that she felt that her foster family was her real family and that she did not want to return to her birth mother. In fact, access visits between the appellant and her daughter became almost impossible because of the child's negative reaction to the continued attempts to implement such visits. The possibility of access visits occurring had a severe effect on the emotional, psychological and physical well-being of the child, who, in fact, injured herself and made herself ill in order to prevent the visits from occurring. Finally, her wishes are clear in statements made to Dr. Wilkes: "I'm sad . . . I'm sad because of the visits, I don't want to go to the visits." (See Report of Dr. J. R. Wilkes, October 12, 1993.)

After reviewing the new evidence sought to be introduced before us, there is no doubt that it meets the test for admission. In particular, it could not have been adduced before, is highly relevant in that it enables the Court to make determinations on an accurate picture of the situation at hand, is potentially decisive as to S.M.'s best interests and is credible. In addition, the evidence is uncontroverted and bridges the gap between the evidence submitted before the Court of Appeal in May 1993 and the present situation. In light of the Court's broad discretion to admit fresh evidence and the legislated objective of the CFSA requiring the court to act in the best interests of the child in child welfare proceedings, the respondent society's motion to adduce fresh evidence must be allowed and the evidence admitted. That being said, I now turn to the main issue, that is the determination of the test on a status review application pursuant to the CFSA.

Status Review Applications under the Ontario CFSA

Overview

As I said earlier, the Ontario CFSA governs every aspect of child protection proceedings in Ontario. The Act specifies the procedure to be followed, the evidentiary requirements under this process and, most of all, spells out the objectives of the legislation in s. 1, of which the first and "paramount" objective of the Act is to promote "the best interests, protection and well-being of children".

In attempting to fulfil this objective, the Act carefully seeks to balance the rights of parents and, to that end, the need to restrict state intervention, with the rights of children to protection and well-being. The Ontario legislation, when compared to the legislation of other provinces, has been recognized as one of the least interventionist regimes. (See Richard F. Barnhorst, "Child Protection Legislation: Recent Canadian Reform", in Barbara Landau, ed., Children's Rights in the Practice of Family Law, p. 255.) This non-interventionist approach is premised not with a view to strengthen parental rights but, rather, in the recognition of the importance of keeping a family unit together as a means of fostering the best interests of children. Thus, the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent. In order to respect the wording as well as the spirit of the Act, it is crucial that this child-centred focus not be lost, even at the stage of an inquiry under the status review provisions. As well, such an approach is in line with modern principles of statutory interpretation as expressed in Elmer A. Dreidger, Construction of Statutes (2nd ed. 1983), in this often-quoted passage at p. 87:

Today, there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The procedural steps and safeguards which govern the entire process under the Act, including the status review hearing, must always be construed in light of the clear purposes of s. 1.

The relevant part of the Act for the purpose of this appeal is Part III, which deals with child protection. I will briefly discuss the structure of the Act in this regard. The determination that a child is in need of state protection is made pursuant to s. 40 which empowers a court, if the child is found to be in need of protection within the meaning of s. 37(2), to make an order pursuant to s. 57. The crucial paragraphs of s. 37(2), for the purposes of this case, are (f) and (g) which deal expressly with emotional harm to the child. Where the criteria set out in s. 37(2) are met, the judge presiding over the protection hearing may make a finding that the child is in need of protection. Once such a determination has been made, the trial judge must then consider what order is appropriate pursuant to s. 57. Section 57(1) sets out the test to be met for any order for supervision, society wardship or Crown wardship. The seriousness of removing a child from her or his parent or parents is emphasized in s. 57(3), in that the least restrictive alternatives must be examined. Finally, pursuant to s. 57(9), if a court, while satisfied that a child is in need of protection, is of the view that a court order is not necessary to protect the child in the future, the court is required to return the child to her or his parent or parents' care.

The present appeal deals with the determination to be made at a status review hearing. Such review hearings are part of the procedure set out in the Act in order to insure that the child protection policy directives are being properly carried out by the orders made under the Act and, to that end, all orders made pursuant to s. 57(1) are subject to time limits and to review pursuant to s. 64(1). The criteria to be considered by courts and the steps to be followed on a status review application are at the heart of the present appeal. I will briefly state both the appellant's and the respondent society's submissions in this regard.

Appellant's Submissions

The appellant suggests that the trial judge, operating under s. 65 of the Act, must determine, upon status review, whether there is a continuing need for a court order pursuant to s. 57 before considering the best interests of the child under s. 37(3). This approach is advanced in light of the non-interventionist philosophy of the Act. She submits that this interpretation is consistent with the comment of M. L. McCall, "An Analysis of Responsibilities in Child Welfare Systems" (1990), 8 Can. J. Fam. L. 345, cited by Tarnopolsky J.A. in B.(R.) v. Children's Aid Society of Metropolitan Toronto (1992), 43 R.F.L. (3d) 36 (Ont. C.A.), at pp. 59-60:

A recent trend moves toward a more legalistic and non-intrusive approach that suggests that parents should be left alone to raise their children unless they fail to meet certain clear minimum standards of care. [Emphasis added by Tarnopolsky J.A.]

According to the appellant, a protection hearing differs from a custody hearing, in that, in the latter, the best interests of the child test is the paramount concern, as decided by this court in Racine v. Woods, [1983] 2 S.C.R. 173, King v. Low, [1985] 1 S.C.R. 87, and, since then, in Young v. Young, [1993] 4 S.C.R. 3. Although, in custody cases, the presumption in favour of the biological parents has given way to the best interests standard, the presumption, in her view, continues to apply in protection hearings, as per Re Baby Duffell, Martin v. Duffell, [1950] S.C.R. 737, at p. 746, so that the removal of a child will only be justified where the actions of parents fall below an acceptable minimum threshold and, only then, does consideration of the best interests of the child in protection hearings arise. As a consequence, it is only after the threshold issue, as to whether an order is necessary to protect the child in the future, is affirmatively established that a court may have regard for the best interests of the child.

Respondent Society's Submissions

The respondent society and the Official Guardian, on the other hand, argue that a status review application is solely concerned with disposition and, as a consequence, the primary focus of the inquiry under s. 65 is whether the order sought is in the best interests of the child within the meaning of s. 37(3) and that the main focus in the inquiry is not whether the child continues to be in need of protection but what is in the best interest of the child. In their view, the procedure upon a status review application presupposes the earlier finding of a need of protection and a similar investigation need not be made anew. Their approach is premised on the difference between the procedure on an original protection application and that upon status review. The original application would involve protection and best interests, whereas the latter review would concern solely the best interests. They submit that, under the CFSA, there are dual findings of protection, first a finding of the need of protection and second, a finding that a court order is necessary to protect the child in the future, which must be met when the original order is made. It is their submission that both these findings become res judicata on status review. They rely on L.(K.) v. C.A.S., Stormont, Dundas and Glengarry (1988), 12 R.F.L. (3d) 76, at p. 82, in this regard:

It would appear to me that, if the legislature had intended that, pursuant to a s. 60 application for status review, a new or fresh finding of a child being in need of protection was required to be made, it could have very easily spelled that out in either of s. 60 or s. 61. It did not see fit to do so and I can only gather from this that it was the intention of the legislature that, once a determination of a child being in need of protection having been made, there is no need for a court in respect to reviewing the matter to make a fresh determination of that particular issue.

As a result, the "no order" determination made by the trial judge in this case pursuant to s. 57(9) is unavailable upon a status review. In the alternative, the respondent society submits that if, on a status review, a finding that a child is in need of future protection is necessary, the requirements have been met in this case and, finally, even if, on review, the original finding of the need of protection is to be re-examined, it would also be met in the present case.

Analysis

As a starting point for this analysis, one must look at the Act as a global legislative scheme whose purpose and rationale should not be overshadowed by an unduly restrictive and strict interpretation of the sections of the Act, which would be at cross-purposes with the whole philosophy of the Act.

In order to decide this issue it is helpful to examine the main provisions of the Act dealing with the procedure for review, which afford significant guidance on a status review and which are found in s. 65 of the Act. The paramountcy of the best interests of the child is clearly apparent in s. 65, as it is throughout the Act. Section 37(3) further complements s. 65 in that it recounts the various factors to be considered when attempting to determine the child's best interests. These factors include concern for the child's physical, mental and emotional needs, the importance of continuity in the child's care, the child's views as well as any other relevant circumstance. Finally, the only determination to be made by the court in a status review application is whether the order previously made to protect the child continues to be required for the future protection of the child. In this regard, courts on a status review application are not faced with a review of the rightness or wrongness of the original finding that the child was in need of protection. In the words of H. D. Wilkins in Status Review Applications, Canadian Bar Association (Ontario), Continuing Legal Education Program on The Child and Family Services Act, March 22, 1986:

A status review presupposes an earlier court hearing, a finding that the child was in need of protection, and a resultant court order which is still in existence. It is that order which is being reviewed on the status review application. It is necessarily an order of supervision, an order of Society wardship or an order of Crown wardship.

The underlying philosophy of the Act of balancing the best interests of children with the importance of keeping intact the family unit, without neglecting the protection of children in need of protection, must be kept at the forefront of this analysis. Keeping in mind these purposes and the particular provisions dealing with the status review hearing, I now turn to the focal point of this appeal, the interrelationship between ss. 57 and 65 and the test to be met on status review. As a preliminary step, a brief examination of the jurisprudence is appropriate.

Jurisprudence

Although I do not intend to canvass the whole of the case law on the interpretation of the court's function on a status review hearing, the following few examples demonstrate, in my view, that courts have been struggling to find the proper approach.

In Children's Aid Society of Ottawa v. G.M. (1978), 3 R.F.L. (2d) 226,

at pp. 233-34, Lerner J. held:

If the judge intended by "starting from scratch" that he would reconsider the issue of whether the child was in need of protection at the time he made the two previous orders, he was in error. Those matters are res judicata.

When a court is determining whether the wardship should be terminated or continue, the judge should not determine whether an order of wardship should have been made in the previous or earlier hearings, but instead now consider whether continuation of the wardship in the current proceedings is in the best interests of the child without overlooking the parents' rights. In my respectful view that does not call for a rehearing which, in fact, would constitute a re-trial as if the original orders had not been made. It is my view that the current application should be to determine the circumstances of the parents or parent since the last order ..., as it relates to the situation with respect to the child's custody, including her physical, mental and emotional state since that time and also whether there is now a lifestyle, including attitudes of the mother, that warrants the child being returned to the mother or to wardship. There, it is a matter of determining whether the circumstances require a further order. [Emphasis added.]

In Catholic Children's Aid Society of Metropolitan Toronto and G. (C.), [1986] O.J. No. 1746 (Prov. Ct.) (Q.L.), Felstiner Prov. Ct. J., after having referred to the decision of Lerner J. in G.M., held:

[In G.M., supra], the Divisional Court concentrated on the principle that on a status review hearing, earlier findings should not be looked at, but rather the judge should "consider whether continuation of the wardship in the current proceedings is in the best interests of the child . . ." p. 234. This is the test which s. 61(1) now applies when it says that on an application for review of a child's status, the Court may do one of several things which are "in the child's best interests".

I conclude that a judge must turn his attention to the eight factors in s. 61(3), but his decision will be based on the best interests of the child as defined in s. 37(3). [Emphasis added.]

Comparable approaches have also been advanced in other provinces under similar legislation. In Nova Scotia, for example, in Children's Aid Society of Halifax v. A. (M.), [1986] N.S.J. No. 423 (Fam. Ct.) (Q.L.), the court approached the review of the determination that a child was in need of protection with the child's best interest at the forefront of the analysis. However, consideration was also given to whether changes in the mother's situation were sufficient to preclude the need for the future protection of the child:

The test is: What is in the best interests of these children and not merely whether the mother has seen the light and is now prepared to be a good mother, while in the past, on her own admission, she was not such. The test is whether the mother has in fact turned a new leaf and whether she is now able to give to the children the care which is in her best interests. Good intentions are not sufficient. [Emphasis added.]

On the other hand, in Children's Aid Society of Winnipeg v. Frohnen, [1975] 2 W.W.R. 27, the Manitoba Court of Appeal concluded that, once the Children's Aid Society had established a child to be in need of protection, further applications by the society were to proceed only with regard to the best interests of the child and, as a consequence, there was no requirement for a finding of continuing need for protection on status review. The ratio of this decision has been commented upon by Jennifer MacKinnon in "Best Interests of the Child in Protection Hearings: A Move Away From Parental Rights?" (1980), 14 R.F.L. (2d) 119, at p. 124. She states:

Here the court held that on a further application by the society to extend an existing order of temporary wardship or to make it permanent, the only issue before the court is what should be done having regard to the best interests of the child. The effect of this decision would appear to be that after the society succeeds in obtaining an initial finding that the child is in fact in need of protection, then on any subsequent review application the best interests of the child governs such that the society on one hand and the parents on the other compete on equal grounds for the care of the child. [Emphasis added.]

While the Act's purpose is clear, the function of courts in a status review application hearing tends to be blurred by the reference to the numerous sections of the Act which, at first sight, may seem to be contradictory. In my view, they are not.

The Test

It is clear that it is not the function of the status review hearing to retry the original need for protection order. That order is set in time and it must be assumed that it has been properly made at that time. In fact, it has been executed and the child has been taken into protection by the respondent society. The question to be evaluated by courts on status review is whether there is a need for a continued order for protection. This is why I cannot agree with the respondent society and the Official Guardian that, once a finding of the need for protection has originally been made, there is no requirement, upon a status review, to consider whether the child is or is no longer in need of future protection. Children's needs are continually evolving as they are governed by occurrences in the lives of children and their families which cannot be held still in time. These ever-changing circumstances must be taken into account. In this regard, just as it is important to allow in new evidence in order that the court may have accurate and up-to-date knowledge of the situation at hand, similarly courts must continually evaluate the need for state intervention in order to insure that the objectives of the Act are being met. Macdonald J., in my view, was right to hold that the determination of continued need cannot be res judicata with respect to s. 57(1) of the Act.

The question as to whether the grounds which prompted the original order still exist and whether the child continues to be in need of state protection must be canvassed at the status review hearing. Since the Act provides for such review, it cannot have been its intention that such a hearing simply be a rubber stamp of the original decision. Equal competition between parents and the Children's Aid Society is not supported by the construction of the Ontario legislation. Essentially, the fact that the Act has as one of its objectives the preservation of the autonomy and integrity of the family unit and that the child protection services should operate in the least restrictive and disruptive manner, while at the same time recognizing the paramount objective of protecting the best interests of children, leads me to believe that consideration for the integrity of the family unit and the continuing need of protection of a child must be undertaken.

The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. As the Court of Appeal said:

We agree that a children's aid society, as the representative of the state, must continue to justify its intervention by showing that a court order is necessary to protect the child in the future.

Regardless of the conclusion reached at this first stage, the need for continued protection encompasses more than the examination of the events that triggered the intervention of the state in the first place. As the Court of Appeal further noted:

We do not agree, however, that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of the natural parent, that the child must be returned to the care of the natural parent. A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the care givers, whom the child regards as her psychological parents, is severed. Such a factor is a well recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on a status review hearing.

This flexible approach is in line with the objectives of the Act, as it seeks to balance the best interests of children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail. In this regard, I agree with the conclusions reached by Professor Phyllis Coleman in "A Proposal for Terminating Parental Rights: `Spare the Parent, Spoil the Child'" (1993), 7 Am. J. Fam. L. 123, at p. 133:

Focus on parental fitness is inappropriate in many termination cases. Rather, when the child is young, emphasis should be on needs and interests of the child. . . . [P]arental rights should be terminated if . . . it is determined it would be in the best interests of the child to terminate.

Thus, the best interests of a child under the Act are to be decided through the balancing of all the considerations set out in s. 37(3), including consideration for the family, the importance of the continuity of care, the child's physical, emotional and psychological needs as well as the other criteria set out in s. 65(3). In determining what is in the child's best interest, the Act provides extensive guidance. Notwithstanding the specific provisions of the Act, however, traditional discussions with respect to best interests remain highly relevant. Especially apposite to the case at hand is the English Court of Appeal's appreciation of the breadth of best interests in In re McGrath, [1893] 1 Ch. 143, at p. 148:

The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense.

This wide approach was accepted in Re Moores and Feldstein (1973), 12 R.F.L. 273, in which the Ontario Court of Appeal concluded, at p. 287, that the benefit of a child's bond to her mother was encompassed within the best interest test:

I conclude, therefore, that it is the duty of the court to view all the circumstances relevant to what is in the interest of a child, including a consideration as to whether the evidence disclosed that the child would benefit from the tie of a child to its mother.

The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding and the child's desires, which the Act contemplates as well.

Within the realm of best interests perhaps the most important factor in the present case, as probably in many others, is regard to the psychological bonding of a child to her or his foster family. Section 37(3) imports such considerations as the relevance of a child's emotional needs, the significance of continuity of care and the child's views. In C.C.A.S. of Metro. Toronto v. H.(K.) (1987), 6 R.F.L. (3d) 1 (Ont. Prov. Ct. (Fam. Div.)), reversed (1988), 21 R.F.L. (3d) 115 (Ont. Dist. Ct.), affirmed (sub nom. G.(C.) v. H.(J.) (1989), 23 R.F.L. (3d) 300 (Ont. C.A.)), in reversing the trial judge's finding, the District Court concluded that the judge of first instance had failed to give sufficient weight to the evidence of the potential for long-term psychological harm that may arise from the child's being separated from his psychological parents. In G. (A.) v. C.C.A.S., Metro. Toronto, Ont. Gen. Div., No. 105/89, September 19, 1990, summarized at [1990] W.D.F.L. 1222, Matlow J., dismissing the appeal of the child's birth mother from an order for Crown wardship without access, relied on the fact that harm would be caused to the child by removing him from his foster family. Such considerations are not limited to child welfare cases, nor are they new. In fact, this Court examined the importance of bonding to psychological parents in Racine v. Woods, [1983] 2 S.C.R. 173, at p. 188:

The real issue is the cutting of the child's legal tie with her natural mother. This is always a serious step and clearly one which ought not to be taken lightly. However, adoption -- given that the adoptive home is the right one and the trial judge has so found in this case -- gives the child secure status as the child of two loving parents. While the Court can feel great compassion for the respondent, and respect for her determined efforts to overcome her adversities, it has an obligation to ensure that any order it makes will promote the best interests of her child. This and this alone is our task.

In King v. Low, [1985] 1 S.C.R. 87, at p. 101, McIntyre J. held:

. . . the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. . . . The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.

These concerns apply in matters of guardianship, as well. (See New Brunswick (Minister of Health and Community Services) v. C. (G.C.), [1988] 1 S.C.R. 1073, at p. 1079.)

Among the factors in evaluating the best interests of a child, the emotional well-being of a child is of the utmost importance, particularly where the evidence points to possible long-term adverse consequences resulting from the removal of the child from his or her foster family and the return to his or her birth parents. The focus of maintaining family units is only commensurate as long as it is in the best interests of the child, otherwise it would be at cross-purposes with the plain objectives of the Act, as Wilson J. noted in Racine v. Woods, [1983] 2 S.C.R. 173, at p. 185:

. . . it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to be concerned about. As has been emphasized many times in custody cases, a child is not a chattel in which its parents have a proprietary interest; it is a human being to whom they owe serious obligations.

Finally, it is clear that the best interests of a child require different solutions over time and such interests may have to take precedence over any parental interests. As was recently said in Young v. Young, [1993] 4 S.C.R. 3, at p. 60, the "furtherance and protection of the child's best interests must take priority over the desires and interests of the parent". Further, as examined in New Brunswick (Minister of Health and Community Services) v. S.G. and S.A. (1989), 100 N.B.R. (2d) 357, at p. 360, a child's best interests must take precedence over all other considerations including the effect of delay:

While it is correct to say there were administrative delays in the processing of the guardianship application in this case, there is no proof that the delays were deliberate or that there was any bad faith on the part of anyone involved in the proceedings. Moreover it is to be observed that the trial judge never lost sight of the fact that the sole issue before him was to determine what was in the "best interest" of the child S.G. Jr.

Other cases which have reached similar conclusions include: Langille v. Children's Aid Society of Halifax, N.S.C.A., June 18, 1993, unreported; Winnipeg Child & Family Services v. F.(A.C.) (1992), 42 R.F.L. (3d) 337 (Man. C.A.), and, most recently, Tearoe v. Sawan, B.C.C.A., Victoria Registry No. V01916, August 19, 1993, unreported.

Application to the Facts of the Case

On the factors arising on a status review hearing, the need for continued protection in the case at hand seems to be easily established. The determination of whether the child continues to be in need of protection cannot solely focus on the parent's parenting ability, as did Bean Prov. Ct. J., but must have a child-centred focus and must examine whether the child, in light of the interceding events, continues to require state protection. The fact that S.M. has been in the care of the respondent society for such an extended period of time and has exhibited unequivocal resistance to any recent attempt to institute access with her birth mother, in combination with the fact that her birth mother had difficulty in recognizing S.M.'s emotional and psychological needs and has even reprimanded her for not wanting to see her, together with all circumstances revealed by the evidence is, in my view, sufficient to justify continued state intervention. A notable factor is that the bonding between birth mother and child has not developed and the child has not displayed any desire to be with her birth mother; quite the contrary, as exhibited by the failed attempts to institute access following the order of McLachlin J. on August 23, 1993. Neither has it been demonstrated that C.M. has now acquired the capabilities independently of the possible improvement to her mental health to be supportive of the child's needs. In my view, based on the evidence before the Court of Appeal, the court was right to conclude that continued intervention is required for the protection of S.M.'s physical, emotional and psychological well-being. The further evidence before us confirms that the situation, as evidenced before the Court of Appeal, has not improved or changed to the point where the continued need for protection no longer exists.

Similarly, the child's best interests seem to converge on the child's lack of bonding with her birth mother and the real bonding with her foster family. Her emotional and psychological needs, as well as the harm that may arise as a result of the child's being removed from the care of her foster family, are at the forefront of the analysis. The improvements that C.M. seems to have made with respect to her parenting skills, the fact that she continues to want to see her child and to be her caregiver, as well as the fact that she seems to have had no psychiatric relapses over the last four years (evidence of Dr. Frederico Allodi), have to be balanced with the reality that, for almost five years of her seven-year existence, since March 1989 S.M. has been in the care of her present foster family towards which she has demonstrated a real and sincere attachment. According to the fresh evidence, as well as the whole of the evidence, there has been an early bonding with S.M.'s foster family which has been cemented in time. Finally, her expressed desire to remain with this family cannot be ignored.

That the length of these proceedings may have been one of the factors which has contributed to the attachment of S.M. for her foster family, and thus increased the emotional harm that would result from her removal from them, is a fact that is inescapable. The passage of time in matters of child custody and welfare over extended periods may, unfortunately, carry a heavy burden for all concerned. This is recognized by the Act in that a number of provisions mandate the timely resolution of cases and impose time limits on Children's Aid Society involvement with a family. In particular, s. 70(1), earlier reproduced, provides that proceedings under the Act should be completed within a two-year period. In the case at hand, Macdonald J. clearly turned her mind to this concern when she stated:

In this case, the intention of the CFSA and in particular section 70 have clearly been violated. Had section 70 been adhered to, the psychological bonding that has occurred between [S.M.] and her foster home would not have occurred to the extent that it has.

My comments about the violation of s. 70 are not a criticism of any of the parties; it is a comment on the lethargy of the legal process which, unfortunately in this case, has thwarted the intentions of the CFSA.

I share Macdonald's J.'s concerns with regard to the importance of reaching a speedy resolution of matters affecting children. The Act requires it and common sense dictates it. A few months in the life of a child, as compared to that of adults, may acquire great significance. Years go by crystallizing situations that become irreversible. This is exactly what happened here. The first time that S.M. was removed from the care of her birth mother she was one month old. The situation could have been easily remedied had the birth mother then been in a position to care for her daughter adequately. This did not happen. Now, over seven years later, the situation has drastically changed and, although the argument raised by the appellant in relation to delay is well taken, looking at the totality of the evidence and circumstances of the child, it has become inevitable that it is in S.M.'s best interests to be made a ward of the respondent society, with a view to her adoption by her foster family. The Court of Appeal so found and I concur.

A last matter remains to be dealt with, that is, access to S.M. by the appellant.

Access

Once Crown wardship has been ordered, s. 58(1) of the Act creates a presumption against access. Section 59(2) specifies the unusual circumstances in which access can be ordered. The burden is that of the applicant (the appellant herein). (See Nova Scotia (Minister of Community Services) v. S. (S.M.), supra, at p. 335.) In the present case, none of the exceptions set out in s. 59(2) is applicable and none has been proven. Permanent placement has been established with a family who wishes to adopt S.M.; S.M. is under twelve years of age; and further, she refuses to maintain contact with her mother. In the presence of such overwhelming evidence, the appellant has been unable to discharge her burden under the Act. Although there may be cases where temporary or transitional access could be beneficial to the child, in the present case the situation does not appear, realistically, to allow for such a solution. Consequently, the Act must apply. The strong evidence provided by Dr. Wilkes and Ms. De Sousa leaves little room for any order other than that of Crown wardship without access, in the best interests of S.M.

Conclusion

While cases of this nature necessarily imply the application of statutes and legal norms, they inescapably touch on human emotions and are inextricably linked when the determination of the fate of young children and the natural desire of parents to bring up their children collide. Every judge in this country would probably prefer not to have to make these difficult decisions. But, in the last resort, courts have to decide and, in order to decide, the law as written by legislatures must be their guide.

The law that courts must apply in the present case is the Ontario CFSA which, properly interpreted, mandates a careful balancing of its paramount objective of the best interests of the child with the value of maintaining the family unit and minimizing state intervention. In the case at bar, the protection orders issued at diverse periods of this child's early life were mandated by her need for protection and her best interests. Once this path had been followed and time went by before the situation could be redressed, in spite of the cooperation of all parties, one has to face the reality that new bonds will necessarily form between the child and her foster family, bonds that may be very detrimental to the child to sever at a given point and which are certainly better than having no bonds at all. The fact that S.M. had to be removed from her mother at a very early stage in her young life and that such further removal was found to be necessary in her best interests on many other occasions paved the way for the final disposition of this case, a disposition which became almost inevitable as the years went by. Although S.M.'s birth mother is obviously attached to her daughter, she has been unable over the last six years to cope with all her needs adequately. During these same years, her daughter has become more emotionally attached to her foster family, more distant from her birth mother and more adverse to any interaction with her.

As I stated earlier, time is of the essence in proceedings concerning the welfare of children. Every effort should be made to accelerate hearings of these matters so as to minimize any prejudice to all parties and to avoid that a certain state of affairs occurs.

Obviously, there are no easy solutions to these painful situations. However, with the added insight arising from the fresh evidence before us and in application of the CFSA, the appellant has failed to demonstrate that it is in the best interests of S.M. that she be returned to C.M.'s care. Applying the proper test on a status review hearing, the respondent society has demonstrated the continued need of protection of S.M. as well as that it is in her best interest to remain in the care of the respondent society as a Crown ward without access, for the purposes of adoption.

In the result, I would dismiss the appeal without costs.

Appeal dismissed.

Solicitors for the appellant: Mang, Steinberg & Skultety, Toronto.

Solicitor for the respondent Catholic Children's Aid Society of Metropolitan Toronto: Catholic Children's Aid Society of Metropolitan Toronto, Toronto.

Solicitor for the respondent the Official Guardian: Office of the Official Guardian, Toronto.