Court File and Parties

COURT FILE NO.: FS-204-15 DATE: 2016-07-27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of the Regional Municipality of Waterloo Applicant/Respondent on Appeal – and – C.V. Respondent/Appellant – and – M. V. and J. V. Appellants – and – J. S. Respondent/Respondent on Appeal

Counsel: Jeffrey Boich, for the Applicant/Respondent on Appeal Brigitte Gratl, for the Respondents/Appellant

HEARD: April 7, 2016

The Honourable Mr. Justice R. D. Reilly

Decision on Appeal

[1] Trial in this matter dealt with a child protection application commenced by the Children’s Aid Society of the Regional Municipality of Waterloo. The subject of the application was a child, A. M. D. V. (A. V.) who was born on […], 2013. The biological parents of the child are C. V. and J. S. They were respondents at the trial. A. V. was apprehended by the Society at birth and has been in the care of the Society since that time. At the time of her birth her mother C. V. was eighteen years of age and at the time residing with her parents. The father J. S. was almost twenty-one years of age. The concerns of the Society were summarized by the trial judge, Madam Justice K. S. Neill.

[2] Considerable evidence was called over the nine days of trial. On February 12, 2015, Madam Justice Neill published her judgment. Her specific findings are at page twenty-nine of her judgment. She found that the child A. V. was of no religious affiliation and was not an Indian or a Native Person. She was then residing in a “place of safety” in the Regional Municipality of Waterloo. Madam Justice Neill further found that A. V. was in need of protection pursuant to section 37 (2)(b)(i) of the Child and Family Services Act. The child A. V. was made a Crown Ward and placed in the care of the Regional Municipality of Waterloo without access.

[3] When Madam Justice Neill rendered her decision, A. V. had been in care for almost two years. She was at the time in a custodial home with parents that would appear wanted to adopt her.

[4] The parties at trial were formally noted as The Children’s’ Aid Society of the Regional Municipality of Waterloo and C.V. and J. S., the mother and father of the child. Other parties were given status and were added for purposes of the appeal, including M. V. and J. V., the maternal grandparents of the child. M.V. and J. V. are now effectively principal appellants who seek to overturn the warship decision of Madam Justice Neill.

[5] I have carefully considered the oral submissions of Ms. Gratl, together with her submissions, her Notice of Appeal and her Amended Notice of Appeal. I have also carefully considered her thorough Factum, dated December 15, 2015. I have as well considered the supplementary Factum of C.V. submitted by Ms. Gratl on February 20, 2016. In both her written submissions of December 15, 2015 and February 20, 2016, Ms. Gratl seeks to have the Order of Madam Justice Neill set aside. She asks that there be a new trial in the Ontario Court of Justice before a different judge. Alternatively she asks that the child, A. V., be placed into the care and custody of J. V. and M. V. pursuant section 57.1 of the Child and Family Services Act. She asks that the child be placed in the care of the maternal grandparents by a transition that minimizes the emotional stress on the child and she proposes the possibility of a restraining order to be imposed on the biological parents C. V. and J. S. with respect to contact with the child or with respect to contact with J. V. and M. V. If a new trial is to be held before a different judge, Ms. Gratl asks that J. V and M. V. be added as parties to that hearing.

[6] Apart from the material I have already referred to above, I have carefully considered the Supplementary Factum of J. V. and M. V. and the Factum of the respondent Children’s Aid Society. I have also considered the affidavit of Rachel DeVos, sworn January 11, 2016, and an affiant referred to as “Donna” sworn January 13, 2016.

[7] Suffice to say I have carefully considered the extensive Factum submitted by Ms. Gratl dated December 15, 2015, which sets out in detail her grounds of appeal.

[8] I have also carefully considered the two Notices of Constitutional Question filed by C. V. (dated December 15, 2015) and by M. V. and J. V. (dated August 12, 2015). To summarize their respective positions, C. V., M. V. and J. V. raise what they claim are constitutional issues involving essentially (though for different reasons) violations of their rights guaranteed by section 15 of The Charter of Rights and Freedoms. With great respect to C. V., J. V. and M. V., I conclude there is absolutely no foundation whatsoever to the concerns they express. There was no violation of their constitutional rights based on C. V.’s status as adoptee or a person suffering from a disability, as a result of the age of maternal grandparents or for any other reason. Any relief sought pursuant to the constitutional questions raised is denied.

[9] Suffice to say I have read all of the material in the Appeal Record itself and in particular the transcript of Reasons of the trial court judge, Madam Justice Neill, which resulted in her granting Crown Wardship of the child A. V. on February 12, 2015. I have carefully considered this decision having regard to the specific concerns raised by Ms. Gratl for the appellants.

[10] In assessing the decision of the trial court judge I must be satisfied that all of her rulings or determinations on matters of law were correct. Otherwise expressed, the standard of review is “correctness”. With respect to findings of fact made by the trial court judge I must be satisfied that her findings on the evidence before her and the inferences she drew from those facts reveal no palpable and overriding error. I am more than satisfied in that regard.

[11] Madam Justice Neill carefully analysed the evidence called before her and came to her conclusion based on one predominant principle, that is, the best interests of the child A. V. Madam Justice Neill’s decision is both lengthy and detailed. She was correct in her determination of legal issues and her findings of fact, and the inferences she drew therefrom reveal no palpable or overriding error. Indeed I am most impressed with the care she put into her analysis of the evidence in the case and with her final conclusion. Her determination of the issue of Crown Wardship was most reasonable in the circumstances. It is only to be regretted that more than three years have now passed from the time of the child’s birth and apprehension until this day. On a positive note, it would appear that following apprehension the Society placed the child with appropriate foster parents. It may be hoped that they will follow through with what it appears were their initial intentions to adopt A. V. and finally give her a permanent appropriate home.

[12] I would concur with Madam Justice Neill’s final observation that this was a difficult case as the grandparents were well intentioned and love their granddaughter. However, the best interests of A. V. clearly mandate the decision of the trial judge. If counsel wish to address the court on the issue of costs they may do so in writing, filed with me at my chambers in Kitchener within 60 days of publication of this judgment.

R. D. Reilly J.

Released: July 27, 2016

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: The Children’s Aid Society of the Regional Municipality of Waterloo Applicant/Respondent on Appeal – and – C.V. Respondent/Appellant – and – M. V. and J. V. Appellants – and – J. S. Respondent/Respondent on Appeal REASONS FOR JUDGMENT R. D. Reilly J.

Released: July 27, 2016