Court File and Parties

COURT FILE NO.: FS-15-20560 DATE: 20170419 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

CHILDREN’S AID SOCIETY OF TORONTO Respondent

• and - J.L. Appellant

BEFORE: D.L. Corbett J.

COUNSEL: Michelle Cheung, for the CAS Lance Carey Talbot, for JL Julia Tremain, for the Children’s Lawyer

Decision

D.L. Corbett J.:

[1] This is an appeal from a decision of P.J. Jones J. of the Ontario Court of Justice granting Crown wardship, without access, of the child JLC. The child’s father, JL, appeals all aspects of this, and in addition seeks to adduce fresh evidence respecting the native heritage of JLC.

[2] I provided handwritten reasons on the day that the appeal was heard, as follows:

This is an appeal from the judgment of P.J. Jones J. awarding Crown wardship of the child, JLC. First, order to go per s.45 of the Child and Family Services Act prohibiting publication or making public information that would tend to identify JLC.

There are several issues on this appeal, all but one of which may be disposed of summarily.

(1) Fresh evidence application: evidence has been tendered of native heritage of JLC. It emerged that this evidence is as follows. JLC’s father, JL, is not an Indian or of native heritage. JL’s parents were not Indians or of native heritage. After JL had left the care of his mother, apparently JL’s mother married a status Indian and thereby became, herself, a status Indian. She subsequently separated from her husband and some time after the trial she passed away. JL did not have an ongoing relationship with his mother and learned of these events after trial. I accept that this information was not available at trial. However, it does not otherwise meet the test for fresh evidence. Section 57 of the Child and Family Services Act does not apply because JLC is not within the category of persons to which it applies: JLC’s maternal grandmother married a status Indian, but JLC never met his grandmother. JLC’s father was not raised by his mother and his mother’s aboriginal husband – on the evidence before me it is not clear that JL has even met the man to whom his mother was married. I agree that any child might like to know his grandparents’ personal histories, but this detail of his grandmother’s life can have no more bearing on wardship issues before the court on this appeal. This evidence has not come close to meeting the test for fresh evidence: Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] SCJ No. 37, at para. 109.

(2) Mr Talbot candidly argues that there is only one ground that could lead the court to order a new trial: alleged procedural unfairness by the trial judge excluding JL from the trial. This ground of appeal fails: the trial judge was faced with a difficult task responding to JL’s conduct during the trial. In view of the disruptions, which delayed proceedings, she ordered JL out of the courtroom, but arranged a video conference room to enable JL to follow the proceedings. JL was able to instruct counsel during breaks. The trial unfolded over 19 days spread over more than 9 months. Mr Talbot was not able to refer me to any particular instances where these arrangements resulted in JL being unable to participate fairly in the trial. Obviously the situation was not ideal, but it was reasonable in all the circumstances. Mr Talbot argued that the trial judge could have allowed JL back into the courtroom after a day or two. The trial judge could have done this, but I will not second-guess her decision, which was within her discretion. JL’s conduct damaging video equipment in anger close to the end of trial suggests to me that the trial judge’s assessment of what was required may well have been right; certainly it was reasonable and not unfair.

(3) Mr Talbot argued forcefully that I should reverse the Crown wardship decision, principally because, he argued, the trial judge failed to give appropriate weight to the positive evidence respecting the parent-child relationship. With respect, this was not a close call on the issue of wardship. The trial judge reviewed in detail this family’s history. She noted JL’s long history of drug abuse, abuse which continued after the trial had started. She made no palpable and overriding error in concluding, as she did, that JL has a serious risk of continued drug abuse, which would place JLC at risk. She also found a series of other significant concerns about JL’s ability to parent his son effectively, including a pattern of continuing involvement in a relationship with JL’s mother in a relationship characterized by drug abuse and some violence, JL’s substantial difficulties dealing with persons in authority and institutional actors, and a range of other anti-social behavior. All of these findings were rooted in the evidence. There is no palpable and overriding error.

(4) In the alternative, JL seeks access with JLC. He is supported in this request by the OCL, which reports that JLC would like to have regular access with JL (and with JLC’s mother). Decision on this last issue – access – is reserved. In that decision I reserve the possibility that I may expand upon these brief reasons respecting fresh evidence, a new trial, and Crown wardship.

(5) I am indebted to all counsel for their excellent written and oral submissions.

[3] To summarize: (i) the fresh evidence should not be admitted because it could not affect the result of the appeal; (ii) the trial was not unfair because the trial judge excluded JLC from the courtroom. The exclusion arose from JL’s own bad and disruptive behavior in the courtroom, and the trial judge ameliorated any unfairness by arranging for JL to observe proceedings by video, all of which was a reasonable response to JL’s disruptive behavior; (iii) the trial judge did not err in ordering Crown wardship: she was aware of the close relationship between JLC and his father but concluded that JL’s challenges precluded granting him custody of JLC: she found that it “is clear… that this father has a life-long drug addiction condition that poses a significant risk of relapse.” [1] In the circumstances of this case, this risk precluded an order granting custody of JLC to JL. This was not a close call, and the trial judge made no error of law or palpable and overriding error of fact in coming to it.

Should JLC have access with his father?

[4] Once an order for Crown wardship has been made, there is a presumption that there will be no access unless the party seeking access can satisfy the two-part test found under s.59(2.1) of the Child and Family Services Act:

A court shall not make or vary an access order… with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child’s future opportunities for adoption. [2]

[5] The trial judge correctly cited this test. [3]

(a) Is the relationship between JL and JLC beneficial and meaningful?

[6] I start with the observation that the relationship between the child and his father must be both “beneficial” and “meaningful”.

[7] “Beneficial” requires the trier of fact to decide whether, overall, the relationship between JC and JLC is a benefit for JC. This is not a comparative analysis: the question is whether, taking everything into account, access between the child and his father would be good for the child. The analysis is made on an objective standard – the court is asked to decide whether an access relationship would be good for the child – nothing more than that. I agree with Quinn J.’s conclusion that “beneficial” in this context must be a “significant advantage” to the child, and not merely some incidental positive effects. [4]

[8] “Meaningful” requires the trier of fact to assess the subjective importance of access for the child. This is separate from the question of whether the access would be “beneficial”, a question that requires an objective assessment of the advantages of access for the child. Of course there is some overlap between “beneficial” and “meaningful” – one of the “benefits” of access is continuation of a close family bond between parent and child – something that, by definition, would be meaningful to the child would also be a benefit. Some of the case law seems to combine the two questions – “beneficial” and “meaningful” – into one analysis – “beneficial and meaningful”. In my respectful opinion these two analyses ought not to be conflated.

[9] The trial judge followed the line of jurisprudence that sees the test under s.59(2.1)(a) as a single question rather than as two questions. The trial judge cannot be faulted for doing so since she followed binding authority in coming to that conclusion. As a result, though, the trial judge did not put her mind to the extent that continued access would be “meaningful” to JLC. In my view this was an error. However, in my view, this error does not change the result in this case.

[10] JLC is now nearly ten years old. For the first half of his life he lived with his natural parents. He knows them as his parents. He had access with his mother up until the trial judgment. He had access with his father until that access was suspended in September 2014 because of his father’s breaches of the terms of the access orders. The evidence shows that the access visits JLC had with his parents were generally positive experiences for JLC. JLC has consistently asked to be able to see his parents and to have access with his parents. He is curious about his antecedents and he knows that he is not seeing his parents because of court orders prohibiting this contact.

[11] It is axiomatic that the court must consider the views and preferences of the child when considering an access order. [5] JLC’s expressions of desire to see JL have been consistent and continuous. Now 9 years old, JLC has demonstrated a permanent attachment to JL and a strong desire to maintain that attachment. [6] Where a child is not refusing to see his parents, expresses a desire to see his parents, the parents consistently attended the visits, and the visits generally go well, access should generally be viewed as “meaningful” to the child. [7]

[12] On the record before the trial judge, I see no basis for a conclusion that access between JL and JLC was not “meaningful” to JLC. Indeed, on the record it seems that it was very meaningful for JLC, to the extent that two years after access with his father had ceased, JLC was still asking about it and indicating a clear wish to resume it.

[13] In summary, then, I conclude that the trial judge erred in law in combining her analysis of “beneficial” and “meaningful”, and, to the extent that her decision is read as concluding that the access was not “meaningful” to JLC, made a palpable and overriding error in so concluding: there was strong evidence that the access was meaningful and no evidence to the contrary.

[14] The trial judge concluded that the access between JL and JLC was not a significant benefit for JLC. JL and the OCL argue that this finding cannot stand in view of (i) the trial judge’s failure to appreciate that access was meaningful and important to JLC’ and (ii) the trial judge’s failure to accord any or sufficient weight to JLC’s wishes and preferences. I do not accept this argument. I conclude that the trial judge did ask herself the correct question in assessing whether the access relationship was “beneficial” for JLC, and that she did understand and consider JLC’s stated wishes and preferences and the benefit to JLC of a continuing connection with his family.

[15] The trial judge summarized her findings about the relationship between JLC and his father as follows:

… Prior to the suspension of access, the father attended access on a regular basis. [JLC] and his father played together and they expressed love and affection for one another. I accept that the relationship between the father and the child is an important one to both and each has clearly expressed a wish to have contact with the other. Unfortunately, the father’s inability to trust authority figures and to control his emotion has interfered with access. [8]

[16] The trial judge made the following findings respecting access between JLC and his mother:

Mother and son are loving and affectionate with one another. Access supervisors testified that the mother has found it difficult to provide consistency, structure and routine at the visits but that they are continuing to work with the mother around these issues and she appears to be making some progress. I accept that the relationship between mother and son is an important one to both and each has expressed a wish to have contact with the other. [9]

[17] The trial judge placed considerable weight on the desire of the parents and of JLC to be reunited as a family; indeed, this was the central dilemma in this case:

Although I am satisfied that JLC loves his parents and that they love him, and that the family wishes to be reunited, the tragedy of this case is that sometimes love is not enough. [10]

[18] The trial judge relied upon the evidence of Dr Wittenberg to conclude that access between JLC and his mother would be “at best… not harmful.” Dr Wittenberg’s opinion was not quite so stark: on a clinical level Dr Wittenberg opined that access with the mother was “not harmful” and has “many positive aspects” for JLC. [11] Dr Wittenberg recommended that if access continue with the mother, then it should be supervised. [12]

[19] On the basis of Dr Wittenberg’s evidence, the trial judge found that:

With respect to the father, given his personality make up and his inability to control his emotions and behavior at access, any resumption of access would likely be harmful to [JLC] and his healthy development. [13]

This finding was supported by Dr Wittenberg’s opinion that JLC “was afraid of his father and that access was actually traumatizing JLC.” [14] It was also supported by other testimony that JLC’s demeanour prior to visits with his father was often “very anxious” and “worried” and that JLC would be “visibly upset” if his father was late for visits, something that did not happen in connection with JLC’s visits with his mother. [15] The trial judge also noted that access between JLC and his father ceased because JL could not or would not comply with the terms of existing access orders. This was a principled basis for the trial judge’s conclusion that access between father and son would not likely be smooth, and that JL would not be likely to accept the restrictions and limitations placed upon his contact with JLC.

[20] The trial judge recognized and placed appropriate weight on JLC’s stated wishes and preferences. The trial judge recognized that the relationship between father and son was something important and meaningful to JLC. The trial judge recognized that there was benefit for JLC in having a loving connection with his father. It was in the context of these positive aspects of the access relationship that the trial judge weighed the risks and the negative aspects of access. It was on the basis of this weighing of pluses and minuses that the trial judge concluded that a continuing access relationship between JLC and JL would not be “beneficial” for JLC, within the meaning of s.59(2.1) of the Act. The trial judge made no palpable and overriding error of fact and applied the correct principles in coming to this conclusion. The conclusion is reasonable. There is no basis for this court to interfere with it.

(b) Will an Order for Access Impair JLC’s Future Opportunities for Adoption?

[21] The trial judge found that continued access would impair JLC’s “future opportunities for adoption”. There was a strong factual basis for the trial judge to reach this conclusion; certainly the finding was reasonable.

[22] The OCL and counsel for JL argue that it is possible to place children for adoption where there is likely to be a continuing relationship between the child and his birth parents. They argue that the trial judge did not provide sufficient reasons for her conclusion that continued access would impair an adoption because JLC’s parents are “difficult” people.

[23] The analysis on this appeal should be limited to the position of the appellant, JL. The trial judge’s reasons for concluding that access with JL would impair JLC’s prospects for adoption are set out in paragraphs 76 and 77 of the trial decision:

… The father has poor impulse control and is seen by many people he comes into contact with as threatening, intimidating, aggressive and challenging. He has difficulty controlling his anger and is prone to violence…. Presently (sic) the father has no court ordered access given his inability to abide by the terms of court ordered access.

…. Adoptive parents are generally not trained to deal with biological parents who pose such extreme management problems. From my assessment of the father, he would never be able to accept the fact that his child had been adopted, and given the opportunity, would, either intentionally or unintentionally, undermine his placement…. Many families would not be prepared to open their homes to JLC if it meant dealing with his parents. Many families might well decide to wait till the next child becomes available. [16]

These findings are rooted in the facts of this case and are available on the evidence. JL was not able to manage an access relationship during a period of ongoing involvement of the CAS. The trial judge’s conclusion that JL would not be able to manage an access relationship after an adoption is grounded in the evidence and in common sense. Her conclusion that adoptive families would not be likely to subject themselves to such a difficult situation, on top of the challenges involved in adopting an older child, is not speculation, but rather the application of common sense to the facts of this case by an experienced jurist.

[24] The trial judge’s decision not to grant access was justified for two reasons: access would not be “beneficial” to JLC and access would impair JLC’s future opportunities for adoption. Both justifications are reasonable and either is sufficient to justify the trial judge’s decision.

[25] The appeal is dismissed without costs.

D.L. Corbett J.

Released: April 19, 2017

Footnotes

[1] Reasons, para. 27. [2] Child and Family Services Act, R.S.O. 1990, c. C.11, s.2.1; Children’s Aid Society of Toronto v. D.P., [2005] OJ No. 4075 (CA). [3] Reasons, paras. 55-56, 61. [4] Children’s Aid Society of Niagara v. M.J., [2004] OJ No. 2872. [5] Child and Family Services Act, R.S.O. 1990, c. C.11, s.37(3). [6] See for example Catholic Children’s Aid Society of Hamilton v. L.S., 2011 ONSC 5850, para. 413. [7] Catholic Children’s Aid Society of Toronto v. M.M., 2012 ONSC 4500, paras. 219-222. [8] Reasons, para. 46. [9] Reasons, para. 47. [10] Reasons, para. 57. [11] Reasons, paras. 66-67. [12] Reasons, para. 66(e). [13] Reasons, para. 67. [14] Reasons, para. 66(d). [15] Reasons, para.66(d). [16] Reasons, paras. 76 and 77.