Court File and Parties
COURT FILE NO.: 3154/14 DATE: 2016-09-22 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
S. S. Appellant – and – CHILDREN’S AID SOCIETY OF ALGOMA Respondent
COUNSEL: T. Frederick Baxter, for the Appellant J. Mealey, for the Respondent
HEARD: September 22, 2016
JUSTICE A.S. RASAIAH
Publication Restriction Notice
Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.
Reasons on Motion
Overview
[1] The mother of two young children appeals the order of the Honourable Justice Paul Condon (“Justice Condon”) made August 13, 2014 (the “Order”), which ordered that the two young children be Crown Wards with no access to the Appellant.
[2] The order was made following argument on a motion for summary judgment, which argument was heard July 17, 2014.
[3] The Appellant is seeking an order setting aside the Order and remitting the issue of appropriate disposition order back to the Ontario Court of Justice for trial; or in the alternative, that an order for Crown Wardship of both children be made with access to the Appellant as she claims was sought by the Respondent at the hearing of the summary judgment motion.
[4] The Respondent brought a motion for leave to introduce fresh evidence on the appeal.
[5] Both the appeal and the motion were returnable before me today.
Summary of the Facts for Today’s Issues
[6] The Appellant is the mother of two children, L., currently age 12 and N., currently age 9.
[7] There have been no fathers participating in this proceeding. The Respondent says the Appellant identified an individual as the father of N. and that this person is now deceased. The Appellant identified the father of L. but that he has not been involved in the proceeding or the child’s life.
[8] The Appellant moved from Wawa, Ontario to Sault Ste. Marie, Ontario on or about 2008 and issues and concerns led to the involvement of the Respondent.
[9] The Respondent’s evidence identified the concerns as:
a) Poor conditions of the home; b) Poor parenting skills; c) Difficulty managing children’s behaviours; d) Poor school attendance; e) Untreated and unmanaged lice issues; f) Dental and medical neglect; g) Residence instability; h) Use of inappropriate caregivers; i) Poor choices in relationships and dysfunction in those relationships including domestic violence both by the Appellant and by others toward the Appellant; j) Poor choices of associations; k) Lack of positive supports; l) Emotional dysregulation and inability to rationally address concerns; m) Volatile behavior; n) Mental health; o) Failure to work cooperatively with the Respondent; p) Demonstrated failure to make necessary changes; q) Failure to attend recommended programs; r) Refusal to address the concerns in any meaningful way and instead attempting to continue to engage in a negative lifestyle while attempting to prevent the Respondent from learning about it.
[10] A finding that the children were in need of protection was made June 17, 2009.
[11] On July 21, 2010, by order of the Honourable Justice Kukurin, the temporary care and custody of the children were returned to the Appellant under very specific terms of supervision, with the reasons of Justice Kukurin expressing that the Appellant needed to carefully follow the supervision terms.
[12] Thereafter, a final order was made November 3, 2010 by the Honourable Justice Gregson, placing the children with the Appellant, namely a supervision order of 12 months in duration.
[13] The children were apprehended by the Respondent on December 1, 2011. They were placed in foster care and never returned to the Appellant’s care.
[14] The Respondent states that the apprehension was based on an accumulation of factors and the ongoing failure to meet the needs of the children in multiple respects, despite clear terms of supervision and ongoing efforts by the Respondent to gain compliance. There was an observed ongoing failure of the Appellant to comply with the supervision order. The Respondent’s evidence states the last straw was an episode on December 1, 2011 when it was learned that the Appellant was again breaching the supervision order by permitting unapproved persons to reside in the home; there was an incident involving verbal and physical aggression in the presence of the children as well as other risks to the safety and well-being of the children.
[15] Following the December 1, 2011 apprehension, the Appellant had fairly regular access to the children until July of 2013. Access then stopped for approximately eight months.
[16] February 19, 2014, the Respondent brought a motion for summary judgment seeking an order for Crown Wardship with no access.
[17] Access resumed in the Spring of 2014, namely May 8, 2014 to the date of the hearing.
[18] Before the motion was heard, the Respondent was in the midst of approving a kinship application by a relative of the children from Wawa, Ontario. C.K. had come forward. This was viewed by the Appellant as a big break for her since this proposed kinship placement meant that she would be assured of access to her children instead of having to fight what could be perceived as an uphill battle to remain in their lives.
[19] At the time of the summary judgment motion hearing, the Respondent’s formal amended claim on the record was for Crown Wardship without access.
[20] The Respondent’s formal claim in the motion for summary judgment was also for Crown without access.
[21] The motion was argued before Justice Condon on July 17, 2014.
[22] At the hearing, the Respondent sought Crown Wardship with access by the Appellant.
[23] The Appellant sought placement with C.K. for 12 months pursuant to sections 57(1) and 57(4) of the Child and Family Services Act R.S.O. 1990 c. C11 as amended (“C.S.F.A.”) with access by the Appellant.
[24] At the hearing, when addressing the issue of access, the parties had different views on how positive access was or wasn’t prior to July 17, 2014.
[25] Justice Condon reserved.
[26] On August 13, 2014, Justice Condon delivered his decision from written reasons and ordered Crown Wardship with no access to the Appellant.
Appellant’s Position
[27] The position of the Appellant on the appeal is that:
(a) Justice Condon erred in making an order for a claim that was not being made; (b) Justice Condon did not consider as he was required to do, whether placement with C.K. could have been made as a placement with a community person under section 57(4) of the C.F.S.A. before making a Crown Wardship order; (c) Justice Condon erred in failing to order a trial on the issue of whether the children should be placed with K.M. and S.M. under Section 57(1) C.F.S.A.; (d) Justice Condon did not have authority to refuse to make an access order if the Respondent was consenting to it; and (e) Justice Condon erred in failing to order a trial on the issue of access under a Crown Wardship order if he was not prepared to make the order being requested by the Respondent.
Respondent’s Position
[28] The position of the Respondent on the appeal is that:
(a) there is no triable issue in respect of placement with the Appellant or alternatives to Crown Wardship; (b) this matter requires conclusion and the kin in care provider is ready and willing to adopt the children so that they will have permanency; and (c) the Justice made no error of fact or law, correctly applied the law on summary judgment, correctly applied the law to the facts before him and that his decision should be afforded deference.
[29] The Respondent requests that the appeal be dismissed.
Adjournment of the Appeal
[30] I advised counsel that I did not feel that I could decide this appeal without a full transcript of the submissions based on the issues argued. Appellant’s counsel agreed and had thought about that issue when preparing for today. He is content to order the remaining portion of the transcript required. While the Respondent was not consenting, the Respondent appreciated and understood the position of the court but did clarify for the record that the Respondent did in fact seek an access order before Justice Condon and wanted to make that clear on the record. Notwithstanding this clarification, which is duly noted, the transcript is important to the argument being made of an equivocal position having been taken by the Respondent at the hearing, and further, in respect of the argument regarding the issues raised regarding Justice Condon’s consideration of the plan and the particulars submitted, regarding K.M. and S.M. as an option to Crown Wardship.
[31] Accordingly, the appeal is adjourned to Thursday, November 17, 2016 at 10:00 a.m. for argument; half a day is to be set aside for the hearing.
[32] Mr. Baxter will take steps to order the remaining portions of the transcript, namely the introductory comments to the court before submissions began, and Mr. Baxter’s submissions to the Court. Those portions will be served and filed as soon as they are available.
Fresh Evidence Motion
[33] The Respondent seeks to have fresh evidence admitted on this appeal. In particular, it wishes to have the Court receive the affidavit of Krista Scott, sworn April 22, 2016.
[34] The parties were in agreement to argue this motion today.
[35] The Respondent submits that the status of the children and the update on the Appellant’s visits with the children are relevant to this matter given the issues raised in this appeal.
[36] Rule 38(2) of the Family Law Rules, O Reg. 114/99 provides that any person entitled to be heard in the appeal may bring a motion to admit further evidence under subsection 134(4)(b) of the Courts of Justice Act, R.S.O. 1990 c.C.43.
[37] Subsection 134(4)(b) of the Courts of Justice Act, R.S.O. 1990 c.C.43, states “unless otherwise provided, a court to which an appeal is taken may, in a proper case, … receive further evidence by affidavit, transcript or oral examination, oral examination before the court or in such other manner as the court directs … to enable the court to determine the appeal”.
[38] Subsection 69(6) of the C.F.S.A. provides that the court may receive further evidence relating to events after the appealed decision.
[39] In the context of child protection proceedings, bearing in mind that the welfare of children is being dealt with, the judge hearing the appeal has a very wide discretion to hear further evidence so long as it is relevant to the consideration of the best interests of the child: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1942] 2 S.C.R. 165.
[40] The test for the admission of fresh evidence on appeal, in child protection cases, entails consideration of whether the evidence could have been adduced before; if it is highly relevant in that it enables the court to make determinations on an accurate picture of the situation at hand; if it is potentially decisive as to the children’s best interests; and if it is credible: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1942] 2 S.C.R. 165.
[41] 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. Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1942] 2 S.C.R. 165.
[42] I do not propose to analyze all of the issues on the appeal separately against the test as I don’t see it as necessary in these circumstances which I explain below.
[43] Against the motion, the Appellant submitted that the corners of the appeal are contained to the evidence before the court as of July 17, 2014 on all issues. I respectfully disagree.
[44] The Appellant is asking the court, if the appeal is granted, as alternative relief, if there is sufficient evidence on the record, to exercise its discretion to order access instead of sending the matter back for trial. On this issue alone, the test in my view is satisfied.
[45] All of the proposed evidence in the affidavit is evidence arising following the hearing and as such could not have been adduced before. This is not contested.
[46] Evidence post the hearing on the issue of the exercise of access if any by the Appellant to the children and the effects of same and the current state of the health of the children is highly relevant and potentially decisive to a determination of the best interests of the children. The affidavit the Respondent seeks to have admitted as fresh evidence speaks to all of these issues. As set out under the summary of the facts of this case, there have been historical issues with access. There was a claim by the Appellant that she had changed which was part of her argument at the hearing before Justice Condon.
[47] As to credibility, no evidence has been filed in reply to the motion to admit the fresh evidence contradicting the evidence (the motion was served and filed in April of this year). Ample time has been provided for a response. Lastly, Mr. Baxter confirmed for the record that he did not intend on making any objections regarding the hearsay evidence that may be contained within the affidavit.
[48] Accordingly, I hereby grant leave to admit the fresh evidence as requested by the Respondent and it may be considered on the appeal, namely the affidavit of Krista Scott, sworn April 22, 2016.
Other Matters Regarding the Hearing of the Appeal
[49] The Respondent was asked by me to review the issue of the making of a no access order by Justice Condon and the paragraph in his decision thereafter regarding the Respondent being permitted notwithstanding his order, to permit the children to see the Appellant prior to any adoption. My questions are, how does this affect this appeal, if it does, what does it mean given his conclusion that access was not in the best interests of the children, and lastly, how could the Respondent provide access or be given authority to provide access in the face of a no access order (made on the basis of access not being in the best interests of the children) without being of breach of Justice Condon’s order? Given the issues raised in the appeal, I was of the view that the parties should have an opportunity in advance of the hearing to contemplate these questions. The Respondent was invited to provide a supplementary factum and any authorities on that issue, and the Appellant to provide a supplementary responding factum and any authorities.
[50] On the issue of the filing of further information clarifying what was agreed to between the parties or the understanding of the parties on the position of access and when it was discussed prior to the hearing before Justice Condon, Ms. Mealey and Mr. Baxter will discuss this issue and failing agreement as to what if anything further should be filed, may arrange a conference on this matter before me with the trial co-ordinator in advance of the hearing date for the appeal.
[51] On the issue of the correspondence provided to Justice Condon prior to his decision being released regarding the outcome of the kin assessment regarding C.K. referred to in the transcript, Ms. Mealey will locate those documents, and on consent, will file those documents on this appeal for my consideration.
Justice A.S. Rasaiah Released: September 22, 2016