ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 13-231
Date: 20140318
BETWEEN:
T.G.
Jill Gamble, for the Appellant
Appellant
- and -
BRUCE GREY CHILD & FAMILY SERVICES
Helen Trentos, for the Respondent
Scott Vining, as agent for the father E.C.
Respondent
David Lovell, for the OCL
Heard: March 18, 2014
REASONS FOR DECISION ON THE SOCIETY’S MOTION
TO ADDUCE FRESH EVIDENCE ON THE APPEAL
Conlan J.
Introduction
[1] The mother, T.G., has appealed the final Order of Harrison J. of the Ontario Court of Justice made in Owen Sound on 30 September 2013.
[2] That decision of Harrison J. granted the motion for summary judgment brought by Bruce Grey Child and Family Services (hereinafter referred to as the “Society”).
[3] The child, a girl born on […], 2011, was found to be in need of protection under subsections 37(2)(b)(i) [risk of physical harm] and 37(2)(g) [risk of emotional harm] of the Child and Family Services Act.
[4] The disposition was an Order that the child be made a Crown ward without access to either parent, for purposes of adoption.
[5] Each parent was represented by separate counsel before the lower Court. Each parent opposed the motion by the Society.
[6] In the Court below, counsel for the child supported the Society’s motion for summary judgment.
[7] On December 10, 2013, I heard a motion by the appellant mother to stay the Order of Harrison J. made on 30 September 2013 and permit access between the mother and the child pending the disposition of the appeal itself. The mother’s motion was supported by her affidavit sworn on November 8, 2013.
[8] In response to the appellant mother’s motion, the Society filed affidavits sworn by two child protection workers, an affidavit sworn by the foster parents and an affidavit sworn by the family resource worker.
[9] Prior to the Order under appeal, the mother was having supervised access with the child.
[10] Since the end of March 2011, so for nearly all of the child’s life, the girl has lived with the same foster parents. Those foster parents are prepared to adopt the child.
[11] On the motion, the appellant mother was represented by new counsel. The father, who supported the mother’s motion and who supports her appeal, was represented by a new lawyer agent. The child was represented by the same counsel as in the Court below; and that counsel opposed the mother’s motion and opposes her appeal. The Society, through its counsel, opposed the motion for a stay brought by the appellant mother and opposes her appeal.
[12] For Reasons dated December 12, 2013 and reported at 2013 ONSC 7660, I dismissed the motion brought by the appellant mother.
[13] On March 18, 2014, prior to hearing submissions from counsel on the appeal itself, I heard submissions on a motion brought by the Society. The Society moves to admit fresh evidence on the appeal, namely, the four affidavits referred to above which were filed by the Society in response to the mother’s motion to stay the Order of Harrison J. pending the appeal. Mr. Lovell, for the Office of the Children’s Lawyer, supports that motion by the Society to tender fresh evidence on the appeal. Both the mother and the father oppose that motion, with a few exceptions.
[14] For the most part, the mother’s objection to the proffered fresh evidence sought to be adduced by the Society is that the affidavits contain matters that could have been put before Justice Harrison.
Analysis and Conclusion
[15] In the context of appeals, subsection 69(6) of the Child and Family Services Act (Ontario) provides that “[t]he court may receive further evidence relating to events after the appealed decision”.
[16] Further, also in the context of appeals, subsection 134(4)(b) of the Courts of Justice Act (Ontario) provides that “a court to which an appeal is taken may, in a proper case, receive further evidence by affidavit…”.
[17] The jurisprudence is very clear that the rules for admissibility of fresh evidence on a child protection appeal are not governed by the same degree of strictness which applies to other civil and criminal appeals.
[18] Generally speaking, “[t]he 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”. Re Genereux and Catholic Children’s Aid Society of Metropolitan Toronto (1985), 1985 1969 (ON CA), 53 O.R. (2d) 163 (C.A.).
[19] The decision of the Court of Appeal for Ontario in Genereux, supra was referred to approvingly in the judgment of the Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 83 (SCC), [1994] 2 S.C.R. 165, wherein the Court, at paragraph 20, held that such a somewhat relaxed standard for the admissibility of fresh evidence in a child protection appeal is “better suited to the child-centred focus of the CFSA…”.
[20] The application of the test outlined in Genereux, supra has led Courts to admit “fresh evidence as it relates to events subsequent to the trial and evidence relevant to the best interests of [the child], regardless of whether it concerns events that occurred prior to or subsequent to the trial”. Children’s Aid Society of Algoma v. T.S., [2011] O.J. No. 856 (S.C.J.).
[21] In the case before me, frankly, any limited prejudice to the parents in having the proposed fresh evidence admitted on appeal is substantially outweighed by the probative value of admitting the four affidavits in question. I say “limited prejudice” because the affidavits in question contain many positive comments about the parents. For example, the affidavit sworn by Alison Hogan on December 4, 2013, at subparagraph 9(b), indicates that the child, at an access visit, had no reluctance to go to her father. As another example, in the affidavit sworn by Connie Starrat on December 5, 2013, at subparagraph 14(f), there is an indication that, at an access visit, there was affection observed from the mother towards the child, which affection was readily accepted by the child.
[22] I have reviewed in detail the four affidavits in question. In my view, the information contained therein is highly relevant to a determination of what is in the best interests of the child.
[23] Thus, the motion by the Society is allowed. The four affidavits are accepted as admissible evidence on the appeal.
[24] There is one exception. I agree with Ms. Gamble, as counsel for the appellant mother, that paragraph 25 of the affidavit sworn by the foster parents on November 29, 2013 is improper. It amounts to speculative opinion evidence. Its prejudicial effect outweighs its very limited probative value. For those reasons, that paragraph is ruled inadmissible on the appeal and shall not be considered by me in any way.
Conlan J.
Released: March 18, 2014
COURT FILE NO.: 13-231
DATE: 20140318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
T.G.
Appellant
- and -
BRUCE GREY CHILD AND FAMILY SERVICES
Respondent
REASONS FOR DECISION
ON THE SOCIETY’S MOTION
TO ADDUCE FRESH EVIDENCE
ON THE APPEAL
Conlan J.
Released: March 18, 2014