Court File and Parties

COURT FILE NO.: FS-1027/15 DATE: 2017-01-09 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Children’s Aid Society of the Regional Municipality of Waterloo J.W. Boich Counsel for the Respondent, Children’s Aid Society – Region of Waterloo Applicant (Respondent on Appeal)

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K.F. a.k.a. K.T. Respondent (Appellant on Appeal) G. Ichim, Counsel for the Appellant

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D.T. Respondent

HEARD: December 9, 2016 and January 3, 2017

THE HONOURABLE MR. JUSTICE G.A. CAMPBELL

WRITTEN REASONS FOR DISMISSAL OF APPEAL

[1] In order that a reserve judgment not extend these lengthy proceedings resulting in a further delay for child Z.A.F., the court dismissed the Appeal, with very brief oral reasons immediately after submissions were concluded on January 3, 2017.

[2] At that time, in the absence of both the Appellant and D.T. (they both having removed themselves from the courtroom for the fourth or fifth time) the court undertook to produce these more fulsome written reasons for its decision to dismiss Ms. K.F.’s Appeal.

[3] Before I begin those Reasons, I wish to acknowledge a reality that unfolded in the courtroom over the two days of the Appeal hearing.

[4] Appellants’ counsel, Ms. Ichim, on several occasions used intemperate, accusatory and inflammatory language during her passionately-presented submissions. Several examples include referring to her own client as a “nut bar”; calling the expert witness at trial, Dr. Amin (a psychologist who has testified in numerous child welfare trials) “stupid”; charging that her client was not getting (and did not, at trial, get) “a fair hearing”; and that, if unsuccessful on this Appeal, she was (she actually claimed that “we” were) going to continue to Appeal “all the way to the Supreme Court”.

[5] In response to most of those inappropriate and unprofessional statements, the court confronted and admonished Ms. Ichim, which interchanges raised the already high levels of tension and emotion in the room.

[6] Perhaps not unsurprisingly, given Dr. Amin’s opinions and the Trial Judge’s findings, K.F. and D.T. did not receive those occasions of overt conflict well. Their already tenuous grip on their own emotions and behaviour was lost and both parties resorted to shouting out in the courtroom and several times stomping out of the room shouting out complaints and statements that, in hindsight, they might have wished they’d not made.

[7] At one point during the proceeding, D.T. (whose own Appeal was earlier dismissed) refused to remain seated in the body of the courtroom and the court eventually had to ask security to escort him from the room until he cooled down. Despite permission to do so from the bench, D.T. declined to return.

[8] I regret my inability to sufficiently restrain the statements and behaviour of counsel, which failure exacerbated for the parents the affect of this very difficult and emotional process. These circumstances explain why neither biological parent was present in the courtroom at the conclusion of the appeal hearing submissions and the decision was rendered with only counsel (and the maternal grandmother) present.

[9] In any event, amidst all of her hyperbole and rhetoric, counsel for the Appellant did raise some issues that need to be addressed in these Reasons.

A. Delay

[10] Z.A.F. was apprehended at age 2 months on July 27, 2013. He is now three years and seven months old. The trial didn’t start until January 23, 2015 and consumed twelve days over six months. The trial judge released her written decision and reasons on December 1, 2015. The Appeal then took over a year to be perfected. The Appeal hearing started on December 9, 2016. The one day scheduled for Appeal submissions was insufficient. Fortuitously time was found to complete the hearing relatively proximate to that first date in December.

[11] The Legislation is clear and a recent Court of Appeal decision (see: CMEM and BJV and Children’s Aid Society of the Regional Municipality of Waterloo (2016)) addressed the frequency of inordinate delay in child welfare cases. Sloan J., in his Appeal decision, referred to the delays in that case as “unsettling, unsatisfactory and worthy of review”.

[12] With those observations I concur. Indeed, it appears that such chronic delays are no longer “inordinate” and occur on a regular, if not usual basis.

[13] Sloan J’s observations in the CMEM case parallel the delay that has occurred in this case. I agree with him and adopt his comments found at paras. 74-82 (with adjustments to the exact timing – e.g. the children in his case had been with their foster parents for 4 ½ years, a year longer than Z.A.F. has been with his):

[74] … Contested family law and child protection matters whose outcome would affect the well-being and day-to-day physical, emotional and/or mental health of children should be considered matters where time is of the essence. Scheduling of these matters should reflect this. Judicial time should be made available so these matters will be completed in a timely fashion. Family and child protection schedules should reflect this principle as much as possible.…

[75] These principles seem to have been absent in this case.

[76] All parties involved must find ways to reform the system and allocate sufficient resources to the Ontario Court of Justice so that their trial judges can hear these important Crown wardship matters, on consecutive or close to consecutive days, rather than piecemeal over a period of several months.

[77] Then of course, a Judge hearing 12 days of evidence would require adequate time shortly after (preferably immediately after) the trial to allow him/her to render a timely judgment.

[78] From the view of an Appeal Court, the timing involved in this case presents some disturbing ethical and legal issues.

[79] How could it ever be in these children’s best interest, to remove them from their current home after 4½ years, even if the trial judge had made serious errors in her judgment? They have resided for the last 4½ years in the only home they know, with the same foster parents who are willing to adopt them both, and are for all practical purposes the people they know and depend on as their Mom and Dad.

[80] A child’s development does not wait for the “niceties” of lengthy and protracted legal proceedings. The time from apprehension by the CAS until now, has covered by far the major portion of their young lives. This is the time in their lives, which is generally accepted to be critical for positive child development of love, trust and positive self-image along with other factors.

[81] The Appellants of course have a further right of appeal to the Court of Appeal, which could delay in the final outcome for these children by another year or more.

[82] It is my hope that counsel will bring the concerns raised in my observations and comments to the attention of those who can affect meaningful changes.

[14] From her submissions, it appears that Ms. Ichim approached the delay issue as one might do within the criminal process, with all the Charter time-lines to which that system is subject. However, neither R. v. Askov nor R. v. Jordan applies to child welfare proceedings and the clear non-compliance with the legislated time-lines does not allow an Appeal Court to suspend the proceedings, dismiss the case (charges) due to a Charter violation or to overrule the trial judge’s thorough and carefully considered decision (as explained by her detailed and fulsome written Reasons), on the basis that the ultimate decision took too long and the process did not adhere to the legislation. This is not some “event” that occurred that was tried (such as an MVA, an alleged crime or some breach of contract case). The process is in place to determine the future well-being of a child, who has waited for years now for a final decision to be rendered. Missed time-lines cannot nullify the efforts invested to arrive at that decision.

[15] Sloan J. explained it well in the passage included earlier. In this case, Z.A.F.’s emotional connection with his foster family (that has been nurtured for virtually his whole life) cannot be jeopardized because the administration of justice will not put in place sufficient resources that would allow the legislated time-lines to be met.

[16] Counsel’s argument that “a mistrial” should be ordered due to “systemic delay” is both specious and is entirely without merit. Further, in this regard, I accept and agree with the submission of counsel for the Agency at paras. 83-86 of their Factum dated November 9, 2016.

83. The Appellant K.F. alleges that the Trial Judge failed to comply with section 51(3) of the CFSA, thereby breaching procedural fairness.

84. The Society respectfully submits that the above-noted section has no application to a trial. Rather, section 51(3) sets out the test applicable at a temporary care and custody hearing. Such a hearing occurred in this case in December 2013 before the Honourable Justice Frazer. Z.A.F. remained in the care of the Society following that decision, and that decision was never appealed.

85. The Society submits that the circumstances surrounding the apprehension were again canvassed at great length during the trial. The learned Trial Judge was in a unique position to weigh the credibility of the evidence provided by K.F. and the Society workers. The Reasons for Judgment indicate that Her Honour did so carefully, and where the evidence differed, she accepted that of Katie Lichti and Aaron Delsaut, and rejected that of K.F.. Reference: Reasons for Judgment, paragraphs 113-128 (Appellant’s Appeal Record, Tab C).

86. The Appellant K.F. alleges that the timelines for child protection proceedings were not complied with in this case. The Society notes that within this appeal process, K.F. was herself the source of significant delay as several adjournments were requested to deal with the ordering of transcripts and filing of materials. The date for hearing of the appeal has now been set over one year after the trial decision was received.

B. Mis/Malfeasance by the Agency

[17] This allegation/ground for the Appeal is repeated in various forms throughout the Appellant counsel’s factum and was returned to time and again during her submissions in court.

[18] Ms. Ichim asserted inter alia; bias by the worker(s) (Katie Lichti, Patti Rosco and Mr. Delsaut); closed minds; non-compliance with legislation; non-compliance with Agency policies/procedures; unwillingness to “rehabilitate” K.F., or to work with or to communicate directly with her (despite the direct evidence that K.F. told the worker(s) to “F… off” and to talk (not to her but) to her lawyer); relying on old uncorroborated evidence; and not adequately interviewing and/or gathering additional evidence from other witnesses that Ms. F. wanted them to find; nor adequately (or ever she alleges) explaining to her why Z.A.F. was apprehended. Another submission was repeated at the Appeal Hearing that the Agency “breached” the legislation by going from a voluntary agreement directly to an apprehension. In this regard, I gather the argument was that the Agency (and Trial Judge) ignored s.57(3) or (9) of the Act. I am unpersuaded by this argument and find that the Trial Judge carefully considered this submission proffered by Mr. Schafer (K.F.’s experienced counsel at trial). The learned trial judge fully addressed (and rejected) that argument in her Written Reasons. I agree with the submission by the Agency at paras. 61-65 of its counsel’s Factum:

6l. The Appellant K.F. alleges that the Society did not conduct any investigation into the steps she had taken to improve herself, or the relationship between her and D.T. She alleges that the conduct of the Society was in “bad faith”. She further alleges that the Trial Judge erred in law by basing her decision on “old evidence” that was not reliable, and by not having the best possible evidence available.

62. The undisputed evidence before the court was that following the apprehension, K.F. did not wish to have Society workers attend her home, she did not wish to meet without her lawyer present, and she preferred communication from the Society to be in writing. The Society workers met with K.F. when requested, but otherwise complied with the above requests. Both Katie Lichti and Patti Rocco followed up with the service providers known to them during their respective periods of involvement. D.T. did not, by his own choice, attend for access with Z.A.F., meetings with the Society workers, or the programming recommended by the Society.

63. The learned Trial Judge carefully considered the argument made by K.F.’s counsel that the Society has breached its obligations under section 2(2)(a) of the CFSA. Her Honour concluded that the limited in-person contact between K.F. and Society workers was attributable to K.F.’s own conduct. Her Honour noted that the Society workers had attempted to obtain guidance and input from K.F.’s service providers. Her Honour concluded that the Society’s motivation in not arranging additional meetings with K.F. was not to avoid her, but to comply with her request that all contact be in writing. The Society submits that Her Honour’s findings are wholly supported by the evidence. Reference: Reasons for Judgment, paragraphs 130-137 (Appellant’s Appeal Record, Tab C).

64. With respect to services engaged in by K.F., the court had documentary evidence available by way of the Document Briefs filed by the Society and K.F. The learned Trial Judge carefully considered the evidence available to her and concluded that although K.F. had completed “a significant amount of counselling”, there was no evidence that she was able to implement any of the tools learned in counselling in parenting her children, except for some temporary gains noted in a couple of supervised access visits. The Society submits that Her Honour’s findings are wholly supported by the evidence. Reference: Reasons for Judgment, paragraphs 92-95 (Appellant’s Appeal Record, Tab C).

65. The Society submits that it was open to K.F. to call her counsellors and service providers as witnesses at trial to provide evidence as to her progress in addressing the protection concerns. She chose not to do so.

C. Standard of Appellate Review

[19] I referred in my brief oral reasons to this consideration. Indeed, in various ways during submissions by Ms. Ichim, I had alluded to and attempted to remind her that despite accepting “further evidence” (for purposes of the appeal hearing), the appeal was not a new trial nor was it some form of “do-over”.

[20] I accept entirely the Agency’s counsel’s submission regarding the Standard of Appellate Review as set out in its Factum at paras. 57-60 as follows:

57. As set out in Housen v. Nikolaisen, 2002 SCC 33, different standards of review apply depending on the nature of the issue. In regard to a pure question of law, the standard of review is correctness. For findings of fact, the standard of review is palpable and overriding error. Where the trial judge draws inferences from facts, the standard of review first is whether the trial judge made any palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inferences from those factual findings (the second part of the test is not simply whether the inferences could reasonably be drawn from the factual findings). In regard to a mixed question of law and fact, if it involves the trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error. If it involves the trial judge’s interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness. Reference: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Respondent’s Book of Authorities, Tab 1.

58. It is not the role of appellate courts to second guess the weight to be assigned to the various items of evidence. Reference: Housen, supra at paragraph 23.

59. The Ontario Court of Appeal commented on the definition of a palpable and overriding error in Waxman v. Waxman: “The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors including findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference. An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: … Housen provides a detailed analysis of the “palpable and overriding” standard of review… First and foremost, … the “palpable and overriding” standard applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts. This court cannot retry any aspect of this case.” Reference: Waxman v. Waxman, [2004] 39040 (ON CA) at paragraphs 296-297, 300, Respondent’s Book of Authorities, Tab 2.

60. The Court of Appeal made the following additional observations: “In a case as lengthy and factually complex as this case, appellate judges are very much like the blind men in the parable of the blind men and the elephant. Counsel invite the court to carefully examine isolated parts of the evidence, but the court cannot possibly see and comprehend the whole of the narrative. Like the inapt comparisons to the whole of the elephant made by the blind men who felt only one small part of the beast, appellate fact finding is not likely to reflect an accurate appreciation of the entirety of the narrative. This case demonstrates that the “palpable and overriding” standard of review is a realistic reflection on the limitation and pitfalls inherent in Appellate fact finding.” (my emphasis) Reference: Waxman, supra at paragraph 294.

[21] As mentioned in open court, I find that the trial judge was correct in her decision; made the reasonable and proper inferences and findings based upon all of the evidence before her; and that such inferences and findings were reasonably drawn thereon; and that she made no palpable nor overriding error in fact; and was correct in her interpretation of the law.

[22] I also find that the learned trial judge assigned an appropriate weight to the opinion evidence of the expert witness Dr. Amin. Indeed, from paras. 46-58 of her Written Reasons, the trial judge carefully and thoroughly considered and analyzed the Parenting Capacity Assessment Report and Dr. Amin’s mandate, role, methods, opinion and demeanor (in court).

[23] I find that the trial judge was very aware of the “whole of the narrative” (Waxman) and adequately addressed that in her Reasons.

D. Dr. Amin / Parenting Capacity Assessment Report

[24] After the extensive aspersions cast by counsel at the Agency’s social workers, a special level of vituperation was saved by counsel for Dr. Amin; his work; his methods; his inadequacies and his demeanor.

[25] I find that all of this was fully raised and argued by counsel at trial and that the trial judge focussed on and was influenced by those submissions. As she observed at para. 51 of her Reasons: “… Notwithstanding these issues with respect to the testimony of Dr. Amin, I cannot discount his opinion …”. The trial judge considered the “factual errors” in Dr. Amin’s report and found them to be “relatively minor” and she also found that “notwithstanding his manner of testifying, Dr. Amin’s opinions are of assistance to the court”. (my emphasis) The trial judge did not abdicate to Dr. Amin the court’s own mandate/obligation to come to an appropriate conclusion on all of the evidence before her (not just Dr. Amin’s own opinion(s) and conclusion). The Parenting Capacity Assessment Report and Dr. Amin’s conclusions are but one aspect of all of the evidence that the trial judge clearly took into account in reaching her own conclusion.

[26] Ms. Ichim also submitted in her Factum that Dr. Amin’s evidence had been “discredited” and that he was incompetent because his “opinion has been overturned five times by higher courts …”. She further asserted that he was guilty of “simplistic thinking” or “at worst illogical thinking” and “pure speculation” and was “stupid”.

[27] Without dwelling on the inflammatory nature of those (and other) personal descriptions of Dr. Amin himself and his opinion, I accept and agree with the Agency’s submission regarding the “overturned in five cases” allegation at paras. 75 to 82 in its counsel’s Factum.

75. The Appellant K.F. alleges that the trial judge erred in giving too much weight to Dr. Amin’s report. She alleges that there were serious credibility issues with respect to Dr. Amin’s report, and further that Dr. Amin’s reports “have been overturned by higher courts in five different cases”.

76. The Society submits that the Appellant’s sweeping characterization of the five cases included in the Appellant’s Appeal Record (and in respect of which Dr. Amin was cross-examined in the present trial) is grossly inaccurate.

77. With respect to the decision of Justice Taliano filed at Tab JJ, the Society notes that the reason Dr. Amin’s assessment was rejected in that case was because it was inconsistent with the father’s presentation and information on the witness stand, and the evidence offered by collaterals such as family members as to the father’s parenting ability. In other words, the assessment was inconsistent with the other evidence at trial.

78. The decisions filed at Tabs KK and NN relate to the same case. The Society notes that although Dr. Berry alleged that Dr. Amin was incompetent, the complaints panel did not make this finding. Rather, the complaints panel found that Dr. Amin was acting within the boundaries of his professional competence, did not display a lack of knowledge, skill or judgment and met the minimum standards of the profession. What was found by the complaints panel was that there was a concern that there may not have been sufficient evidence to support certain diagnoses that Dr. Amin had made. Notably, Justice Brownstone concluded that while Dr. Amin may have been in error to label the mother the way he did, his conclusions and recommendations regarding the impact of her behaviour on the children had been validated and proven correct by the mother herself.

79. With respect to the decision of Justice Baldock filed at Tab LL, the Society notes that this was a decision determining whether a matter could proceed by way of summary judgment. The court concluded, for a whole host of reasons (including but not limited to a perceived error in Dr. Amin’s report), that the matter should proceed to trial. The Appellant has not provided any information as to what ultimately occurred at trial.

80. With respect to the decision of Justice Maresca filed at Tab MM, the Society notes that there was no rejection of Dr. Amin’s report in this case. Rather, the court relied on all of the evidence before the court to answer the questions that both experts (Dr. Amin and Dr. Berry) agreed needed to be answered. This case did, in fact, result in a Crown wardship order, which was what Dr. Amin recommended in his assessment.

81. In the case at bar, the learned Trial Judge gave careful consideration to the weight to be given to Dr. Amin’s assessment, noting specifically that the court must be careful not to abdicate its function to expert witnesses. Her Honour agreed with the concerns of K.F.’s counsel as to the manner in which Dr. Amin had presented his evidence; however, she concluded that she could not discount his testimony. Her Honour noted that the nature of the testing was not seriously challenged, there was no evidence that the results were skewed, the conclusions were based upon testing, interviews and observations combined, and that any factual errors were relatively minor. Furthermore, Her Honour noted that elements of the assessment and testimony were consistent with other evidence heard during the trial. Her Honour provided examples such as K.F.’s “delusional” thinking surrounding the apprehension, and her perception that several young children had abused her which was inconsistent with a “highly sensitized” individual. The Society submits that the Trial Judge gave appropriate weight to Dr. Amin’s assessment, and made her findings with the benefit of the evidence as a whole and an ability to assess the credibility of the various witnesses including Dr. Amin and K.F.. Reference: Reasons for Judgment, paragraphs 46-58 (Appellant’s Appeal Record, Tab C).

82. The Appellant K.F. further alleges that there was no evidence to support the finding by Dr. Amin that the children had suffered emotional harm. The Society submits that the finding made by the Trial Judge was with respect to the risk of emotional harm, and that Dr. Amin’s assessment, and the totality of the evidence, clearly supported that hearing.

E. Access to Crown Ward – s.59(2.1) of the Act – Meaningful and Beneficial/Will Not Impair … ;

[28] This issue was argued at trial and the field “re-plowed” at the appeal hearing. Despite certain further evidence being allowed and considered at the Appeal Hearing and despite the Agency filing uncontroverted (or even challenged) evidence regarding the quality of or impact upon Z.A.F. of continued, weekly, supervised access to the Appellant, no new (or any) evidence was offered by the Appellant that access was either “meaningful or beneficial” to Z.A.F.. It was argued by Agency counsel that continued access did indeed impair the child’s opportunity for adoption (despite the 2011 amendments to the Act). I agree with this submission.

[29] Appellant’s counsel, on the other hand, offered the March 2014 decision by Jones, Prov. J. in Native Child & Family Services v. JEG & DC, 2014 ONCJ 109 at paras. 55-58:

55. The parties urge me to make an access order with a view to adoption with openness. However, notwithstanding the connection this child has with her biological family, before I make an access order in favour of the parents, I must be satisfied under section 59(2.1)(b) that an access order will not impair this child’s future opportunities for adoption.

56. Prior to the amendments to the Act in 2011, the answer was simple. If an access order was made, a child could not be placed for adoption until that access order was terminated. Accordingly, an access order, by operation of statute, would always impair a child’s future opportunities for adoption.

57. Since the 2011 amendments, the answer is not so simple. Now, the existence of an access order does not preclude the placing a child for adoption. A Society may place a crown ward with access for adoption, and once that child is placed for adoption, the access order is terminated under section 143 of the Act, subject to notice and a possible application for an openness order being commenced by either the subject of the access order or by the person or persons (including the child depending on the working of the order) who has/have the benefit of the access order. The operative sections relating to openness applications are section 141.1.1, section 145.1.1 and section 145.1.2 of the Act.

58. Although an access order no longer precludes the placement of a child for adoption, courts have still held that an access order may impair a child’s future opportunities for adoption because an access order opens the door to a future openness order. A number of courts have wrestled with how the possibility of an openness order (made possible because of the existence of an access order) might affect a child’s future opportunities for adoption.

[30] I note that in that case “all the parties including the Children’s Lawyer are in agreement … “that despite an order for Crown Wardship, access “should” be made”; hence the Judge’s comments in paras. 55-58.

[31] I am not bound by that decision nor am I persuaded that Jones, Prov. J. is correct in her view that the Legislation has been amended to allow “placement” for adoption of a Crown Ward in the face of court ordered access. I am of the view that Crown Wardship access is still governed by s.141and following and that continued access by Ms. F. to Z. “impairs” his “future opportunity for adoption”.

[32] In any event, I distinguish the Native Child & Family Services case because of its unique “consent-to-access” circumstances. I prefer my colleague, Perkins J.’s analysis of the law in this regard at paras. 27-30 of the appeal decision in CAS Toronto v. T.L. and E.B., 2010 ONSC 1376:

[27] The statutory scheme puts the burden on an applicant children’s aid society through steps 1 and 2 above. However, once the decision is made in favour of Crown wardship, the burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order. This is an extremely difficult onus for parents to discharge, but appellate authority has repeatedly confirmed that the burden is on the party seeking access: Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 615; Children’s Aid Society of Lanark v. S.W., [2004] O.J. No. 1897 (Div. Ct.); Children’s Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (C.A.); Children’s Aid Society of the Niagara Region v. J.C., [2007 O.J. No. 1058 (Div. Ct.). Sometimes a children’s aid society will ease a parent’s burden by being the proponent of an access order, especially in the case of an older child for whom it concludes an adoption placement is unlikely, or is unlikely to succeed, and a continuing relationship with a parent is in the child’s best interests.

[28] In the cases discussing access to Crown wards, several of which are referred to above and in the trial decision in this case, the term “presumption” is used to describe section 59 (2.1). Earlier I referred to it as a gateway. It is a very narrow one. It is also an unusual provision, phrased initially as a prohibition: “A court shall not make or vary an access order …” (emphasis added). There is a way out of the prohibition, in the clause beginning, “unless the court is satisfied”, but that in turn is followed in section 59 (2.1) (b) by another negative, “access will not impair …” (emphasis added). If this is a presumption, it is an extremely strongly worded one.

[29] Section 59 (2.1) (b) operates even if there is no immediate prospect of an adoption: “A court shall not make or vary an access order … unless the court is satisfied that … access will not impair the child’s future opportunities for adoption” (emphasis added). How much stronger still must the presumption be if, as in this case, there is evidence that there is an immediate, existing placement ready to adopt and there are two other placements waiting in the wings?

[30] Note as well that the focus of section 59 (2.1) is very narrowly on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities. Best interests, including a child’s wishes, are not mentioned. It is only when one gets through the narrow gateway of section 59 (2.1) that the wide best interests test of section 37 (3) becomes open for discussion. The new section 63.1 makes it clear the legislature has determined that the best interests of children who can not return to a parent’s care and who are adoptable lie in a permanent family placement by way of adoption or a custody order. Parents might be able to satisfy a court that future adoption opportunities for a child do not likely exist, either because the child’s wishes to return to their care are so overwhelming that the child would not consent to a placement or because the child’s special needs are so extreme that an adoption is not a realistic possibility. But that is far from this case, on the evidence.

[33] In this case, the trial judge carefully considered the evidence, the submissions, applied the legislation and addressed the s.59 (2.1) criteria and came to an appropriate decision.

[34] No new evidence was offered on this issue other than counsel’s ingenious speculation that weekly access (since the Sloan J. Order of February 22, 2016) has created in his mind a routine, so therefore continued access must be “meaningful” to Z.A.F.. Despite that “leap”, even if it were logical, it is refuted by the further evidence of the Agency workers regarding the nature of Z.A.F.’s behaviour (and K.F.’s) during the imposed access visits.

[35] On the evidence, I find that continued access is neither meaningful nor beneficial to Z.F. and entirely impairs and obstructs Z.A.F.’s possible placement for adoption. It is not in his interest (“best” or “otherwise”) to continue that invasion into his life.

[36] Even though the Sloan J. February 22, 2016 Order was a temporary one and is automatically terminated by my order of January 3, 2017 dismissing the appeal in its entirety, in an abundance of caution and to ensure complete clarity, that Order is hereby rescinded.

F. Other Grounds of Appeal

[37] In her Notice of Appeal counsel for the Appellant raised thirteen (13) separate identified errors by the Trial Judge. I have here addressed the more significant of them but responded to counsel during her submissions regarding most of the others. Some of the grounds were repetitive and others picayune or insignificant in the large picture of Z.A.F.’s overall best interests as defined by s.37 (3) of the Act. Other grounds were base-less since the evidence existed before trial but was not called nor provided to the Trial Judge.

G. Final Observation

[38] Sometimes trial judges misdirect themselves. Sometimes trial judges misinterpret or overlook certain aspects of the law. Sometimes trial judges misunderstand and/or misapply the evidence to the legislation. This case was none of the above.

[39] Despite the passage of time that it took to hear all of the evidence and come to a decision, Borghesan, Prov. J., is to be commended (and I do so) for her excellent handling of the trial and her very thorough, thoughtful and careful consideration of every and all aspects of this difficult matter. Z.A.F.’s interests were well served by the trial judge’s efforts on his behalf and her humanity and sympathy for the parents was well written in her penultimate paragraph (para. #151) of her Reasons.

[40] As the endorsement record shows, the Appeal was dismissed.

G.A. Campbell J.

Released: January 9, 2017