



WARNING

This is
    a case under the
Child, Youth and Family Services Act
,
2017
and subject to subsections 87(8) and 87(9) of this legislation.
These subsections and
    subsection 142(3) of
the
Child,
    Youth and Services Act
, 2017
, which
deals with the consequences of failure to comply,
read as follows
:

87
(8)
Prohibition
    re identifying child

- No person shall publish or make public
    information
that has the effect
of identifying
    a child who is a witness at or a participant in a hearing or the subject of a
    proceeding, or the child's parent or foster parent or a member of the child's
    family.

(9)
Prohibition re
    identifying person charged
- The
    court may make an order prohibiting the publication of information
that has the effect
of identifying a person charged
    with an offence under this Part.

142
(3)
Offences
    re publication

- A person who contravenes subsection 87(8) or
    134(11) (publication of identifying information) or an order prohibiting
    publication made under
clause
87(7)(
c
)
    or subsection 87(9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not
more
    than three
years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION: Windsor-Essex Children's Aid Society v. E.W., 2020
    ONCA 682

DATE: 20201028

DOCKET: C67174

Doherty, Hoy and Jamal JJ.A.

BETWEEN

Windsor-Essex Children's Aid Society

Respondent

(Respondent)

and

E.W.

Appellant

(Appellant)

Gordon S. Campbell, for the appellant

Ronald Burnett, for the respondent

Heard: September 18, 2020 by videoconference

On appeal from the order of Justice Gregory J. Verbeem of
    the Superior Court of Justice, dated June 4, 2019, with reasons reported at
    2019 ONSC 3404, 29 R.F.L. (8th) 353, dismissing an appeal from the order of Justice
    Douglas W. Phillips of the Ontario Court of Justice, dated May 29, 2018.

Jamal J.A.:

[1]

The appellant, E.W., appeals from the order of Verbeem J. of the
    Superior Court of Justice ("appeal judge") made on June 4, 2019, dismissing an
    appeal from the order of Phillips J. of the Ontario Court of Justice ("trial
    judge") made on May 29, 2018. The appellant's two children, C.T-W. and
    T.J.E., were
found in need of protection
and
    placed in the extended care of the respondent, Windsor-Essex Children's Aid
    Society ("Society"), with no order for her or the children's respective biological
    fathers to have access to the children. The appellant also moves to adduce
    fresh evidence on appeal.

[2]

For the reasons that
follow, I would
    grant the motion to adduce fresh evidence. I would allow the appeal in part, only
    to the extent of granting the appellant an order for monthly photograph access to
    the children.

A.

statutory framework

[3]

The trial and the appeals were conducted under the
Child, Youth and
    Family Services Act, 2017
, S.O. 2017, c. 14, Sched. 1 ("
CYFSA
"),
    which came into force on April 30, 2018.
Among other
    things, the
CYFSA
replaced the concept of "Crown wardship"
    under the
Child and Family Services Act
, R.S.O. 1990, c. C.11 ("
CFSA
")
    with the concept of "extended society care", expanded the test for access to children
    in extended society care by focussing on the best interests of the children, and
    emphasized the special considerations applicable to children of Indigenous heritage:
    see
Kawartha-Haliburton Children's Aid Society v. M.W.
, 2019 ONCA 316,
    432 D.L.R. (4th) 497, at paras. 4, 31;
Children's Aid Society of Toronto v.
    J.G.
, 2020 ONCA 415, 151 O.R. (3d) 320, at paras. 20, 35; and
L.M. v.
    Peel Children's Aid Society
, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 2.

[4]

Under the
CYFSA
, the court in a child protection proceeding
    must determine "as soon as practicable" if the child is a First Nations, Inuk, or
    Métis ("FNIM") child and, if so, the child's bands and First Nations, Inuit, or
    Métis communities:
CYFSA
, s. 90(2). This finding must be made before
    the court determines if the child
is in need of
protection:
Kawartha
, at para. 60.

[5]

The test for whether a child should be placed in extended society care
    under the
CYFSA
involves two broad inquiries: (1) whether the child is
    "in need of protection"; and (2) whether placement of the child in extended
    society care is "in the child's best interests" and the court is "satisfied
    that intervention through a court order is necessary to protect the child in
    the future":
CYFSA
, s. 101(1).

[6]

The court determines whether a child is "in need of protection" by
    applying the criteria in s. 74(2), which include, for example, the risk that the
    child is likely to suffer physical harm from a parent's failure or pattern of
    neglect to adequately care for, provide for, supervise, or protect the child
    (ss. 74(2)(b)(i) and (ii)); whether the child has suffered emotional harm from
    a parent's actions, including potentially from exposure to domestic violence
    (s. 74(2)(h)); and whether the child has been sexually abused or sexually
    exploited by a parent (s. 74(2)(c)).

[7]

The court determines whether an order for extended society care is in
    the "child's best interests" by applying the criteria in s. 74(3) of the
CYFSA
,
    which include, for example, the child's views and wishes (s. 74(3)(a)); the
    importance of preserving the child's cultural identity and connection to the
    community
in the case of
an FNIM child (s.
    74(3)(b)); and other relevant circumstances of the case (s. 74(3)(c)),
    including the risk of harm to the child if the child is returned to or allowed
    to remain in the care of a parent (s. 74(3)(c)(x)) and
the
    degree of risk
that justified the finding that the child
is in need of
protection (s. 74(3)(c)(xi)).

B.

BACKGROUND AND DECISIONS BELOW

(a)

Facts

[8]

The appellant, aged 27, is a member of the Eastern Woodland Métis Nation
    Nova Scotia ("EWMNNS"). Her two children, C.T-W., aged seven, and T.J.E., aged five,
    have been in the care of the Society for over four years, since July 2016,
    which is most of their lives.

[9]

The Society first apprehended the children in May 2016 because they were
    being exposed to domestic violence. The police had attended at the apartment of
    the appellant and her then-partner, T.E. (T.J.E.'s biological father), in
    response to a neighbour's call about a domestic assault in progress. When the
    police arrived, they heard the appellant and T.E. amidst a violent argument and
    heard a heavy glass object smash. When the police entered, they saw broken
    glass on the floor. The children, then aged about three and one, were crying
    loudly and crawling on the floor towards the broken glass. The police interviewed
    and then arrested both T.E. and the appellant - T.E. for pinning down the
    appellant and choking her, the appellant for throwing a glass jar at T.E. and stabbing
    him with a fork.

[10]

A
    few weeks later, the children were returned to the appellant's care subject to
    supervision, but in July 2016 they were removed again when she breached conditions
    of an interim supervision order and of her bail
that
she
    have no contact with T.E. The children have been in the Society's care since
    then.

[11]

Later
    that month, the Society learned the appellant had a video on her phone in which
    she had recorded T.E. naked and moving his erect penis without his hands, while
    their child, T.J.E., grasped at and briefly touched T.E.'s penis. About a year
    later, Douglas J. of the Ontario Court of Justice convicted the appellant of possessing
    child pornography and sexual interference. His reasons described the
video as follows
:

The video depicts [T.E.] Senior naked on a couch or a bed with
    his penis erect, pumping the penis up and down without his hands, with the
    one-year-old child trying to, and succeeding briefly, touch the erect penis. It
    also depicts [the appellant] capturing the activity on video, and directing
    [T.E.] Senior what to do and encouraging him to keep doing it.

[12]

In
    February 2017, with the appellant's criminal trial pending, Ross J. of the
    Ontario Court of Justice granted summary judgment, with the appellant's
    consent, awarding the Society wardship (under the former
CFSA
) of the
    children for four months and approving a plan of care requiring the appellant
    to participate in counselling and mental health programs. The appellant did not
    do so.

[13]

In
    April 2017, the Society began a status review application seeking permanent
    Crown wardship to secure an adoption placement for the children.

(b)

Trial Decision

[14]

After
    a seven-day trial, the trial judge found the children
were
    in need of
protection and ordered that they be placed in the Society's extended
    care, without ordering access for the appellant or for their respective
    biological fathers, neither of whom
participated in
    the trial
.
[1]

[15]

The
    trial judge held that although the appellant is a Métis person and a member of
    the EWMNNS, the children were not members of the Métis community.
He nevertheless
accepted the children's Indigenous
    heritage would "continue to be important" under the
CYFSA
.

[16]

The trial
    judge ruled the children
were in need of
protection
    on two grounds: "the exposure of [the] children, historically, to multiple
    incidents of domestic violence" (based on
CYFSA
, s. 74(2)(h)), and
    "the exposure of a child to adult sexual activity" (based on
CYFSA
, s.
    74(2)(c)).

[17]

Besides
    the violent incident in May 2016 when the children were first apprehended, and
    the conduct recorded on the cellphone video and described in Douglas J.'s
    reasons,
[2]
the trial judge found T.E. had assaulted the appellant several times before May
    2016, including in 2015 when she was pregnant with T.J.E. T.E. had been charged
    and incarcerated while awaiting trial, but the appellant
took steps to
have the charges withdrawn, and they resumed
    living together. The trial judge found the appellant had minimized the seriousness
    of the 2015 assault, even though she had needed medical care, and
at trial
there was evidence she wanted to reconcile and
    resume living with T.E. The trial judge also found the appellant had a history
    of suffering domestic violence at the hands of her former partner, V.T., the
    biological father of C.T-W. The trial judge also highlighted the appellant's
    failure "to discharge with any degree of sufficiency" the plan of care
    objectives the court had earlier imposed.

[18]

The trial
    judge held that returning the children to the appellant under supervision was
    not in the children's best interests. He noted the appellant had not achieved
    prior plan of care objectives, was not focussed on resolving domestic violence
    or sexual abuse issues, and had not complied with past court orders. He found
    the appellant was not a credible witness, noting that she denied T.E. had ever
    been violent towards her, and claimed she had fabricated the violence recorded
    in various police reports, even though T.E. had been
incarcerated
    as a result
. He also found she "clearly does not have any insight into
    the dynamic that is domestic violence", and "still has insufficient
    appreciation of the risk that [T.E.] poses to her and to these children."

[19]

The
    trial judge found the children could not be placed in the care of the
    appellant's mother in Nova Scotia (their maternal grandmother), who was also a
    member of the EWMNNS. The grandmother had an "extensive criminal record",
    including for breach of undertakings and court orders, "no appreciation of the risk"
    posed to the children by domestic violence, and was "blind to the circumstances
    of the cell phone video."

[20]

The
    trial judge also found that the Chief of the EWMNNS "made it clear that they
    were not prepared to be involved".

[21]

In all
    the circumstances, the trial judge ruled that an order for extended society
    care without access was in the children's best interests. He noted the
    children's foster mother, C.G., wished to adopt both children should they be
    placed in extended society care "with no access or with access by photographs".
    The foster mother advised she was adopted herself as a child and is trained and
    works in the fields of child mental health and early childhood development. She
    has been the foster mother of C.T-W. since July 2016, and is now caring for both
    children. The trial judge noted the children showed substantial developmental
    delays when they came into the Society's care, but have since made significant
    gains.

(c)

First Appeal Decision

[22]

After
    a four-day appeal, the appeal judge allowed the parties to adduce fresh
    evidence, dismissed the appeal, affirmed the order for extended society care
    without granting the mother any access order, and refused the appellant's
    request for a new trial.

[23]

The
    appeal judge addressed four main issues.

[24]

First,
    although the appeal judge accepted the trial judge erred by failing to identify
    the children as Métis children under the
CYFSA
, he held the trial
    judge consistently considered their Indigenous cultural identities and analyzed
    their best interests essentially as if he had found them
to be
Métis children. The appeal judge noted that further
    evidence tendered before him showed the Society had attempted to advance and
    preserve the children's cultural identities and their connection with their Métis
    culture and heritage:

The children are Métis. The additional evidence on appeal
    demonstrates that the Society has arranged for and provided services to
    preserve and advance the children's cultural identities and their connection
    with their Métis culture and heritage. The Society has also arranged for
    services for the foster parents and direct assistance to the children's foster
    parents (including the proposed adoptive parent),
in
    order
to educate and train them to support the preservation and
furtherance of
the children's cultural identities.

[25]

Second,
    the appeal judge held the trial judge did not err in holding that the children
were in need of
protection under s. 74(2)(c) of the
CYFSA
("sexually abused or sexually exploited"), even though the appellant's criminal
    conviction was under appeal and could be overturned. He concluded the trial
    judge had relied on the conduct depicted in the video, not the fact of the
    appellant's criminal conviction - the child protection finding was "conduct
    specific, not conviction specific". The appeal judge noted the appellant
    accepted that the conduct depicted in the video was accurately described in Douglas
    J.'s reasons and posed a significant risk of harm to the child.

[26]

Third,
    the appeal judge rejected the appellant's claim that the trial judge erred in refusing
    to admit evidence showing she had now participated in counselling, treatment,
    and other programs teaching her the life skills needed to mitigate the
    identified risks of harm to the children. The appeal judge found the trial
    judge considered all this evidence, but concluded it was of limited probative
    value.

[27]

Fourth,
    both the Society and the appellant sought to adduce further and fresh evidence
    on appeal. Although the appeal judge admitted some of this evidence, he
    concluded it did not warrant allowing the appeal.

(d)

Criminal Appeal Decision

[28]

Between
    the appellant's first appeal and the appeal to this court, the Superior Court
    of Justice overturned the appellant's criminal conviction. This court was not
    provided with the Superior Court's reasons. However, as part of her fresh
    evidence motion before this court, the appellant sought to adduce her factum
    before the Superior Court, in which she had contended the video depicted no
    actions that constitute sexual interference and did not meet the definition of
    child pornography. But she did not dispute, and has never disputed, Douglas
    J.'s description of the video.

C.

ISSUES

[29]

On a
    further appeal to this court, the appellant raises seven issues:

1.

Did the courts below err in interpreting the time limits for interim
    care orders under s. 122 of the
CYFSA
?

2.

Did the courts below misapprehend and undervalue the appellant's evidence?

3.

Did the trial judge's conduct of the trial give rise to a reasonable
    apprehension of bias?

4.

Given that the appellant's criminal conviction has now been overturned, did
    the courts below err in relying on it
as a basis
for
    a child protection finding?

5.

Did the courts
    below err in placing the burden of proof on the appellant to demonstrate that
    an access order would be in the children's best interests?

6.

Should the appellant's fresh evidence be admitted on appeal?

7.

Is the appellant entitled to full indemnity costs for this appeal?

D.

DISCUSSION

Standard of Review

[30]

This
    court may intervene in the decision of an appeal judge in a child protection
    matter only if the appeal judge erred in principle by failing to identify a
    material error in the trial judge's decision:
Children's Aid Society of
    Toronto v. V.L.
, 2012 ONCA 890, 299 O.A.C. 388, at para. 17, leave to
    appeal refused, [2013] S.C.C.A. No. 112. Deference to a trial judge's
    factual determinations is a "particularly compelling" consideration in child
    protection proceedings:
Children's Aid Society of Ottawa v. S.N.-D.
,
    2012 ONCA 590, 26 R.F.L. (7th) 46, at para. 19.

[31]

Although
    this is an appeal from the order of the appeal judge, many of the appellant's
    grounds of appeal are framed in terms of the trial judge's material errors. For
    simplicity, I will address the issues as framed by the appellant in order to
    determine whether the appeal judge made a reviewable error that justifies this
    court's intervention.

Issue #1: Did
    the Courts Below Err in Interpreting the Time Limits for Interim Care Orders
    Under s. 122 of the
CYFSA
?

[32]

The
    appellant asserts the courts below erred in finding that s. 122(1)(a) of the
CYFSA
imposes a strict 12-month time limit for interim society care orders where a
    child is younger than six. She says they interpreted s. 122(1)(a) in an
    "absolutist" way that excluded all other statutory considerations, including
    the best interests of the children and the importance of maintaining FNIM
    connections. She also contends they should have given her
more than 12
months to address her parenting issues
    and the proceedings should have been "paused" to allow the parties to tender
    more information about the children's best interests.

[33]

I do
not accept this submission. Section 122(1)(a)
    of the
CYFSA
is clear that, subject to ss. 122(4) and (5), which
    address deemed and court-ordered extensions, "the court
shall not
make
    an order for interim society care" (emphasis added) that results in a child
    being in the care and custody of a society for
more
    than 12
months, if the child is younger than six on the day the court
    makes the order. The 12-month time limit for an order under s. 122(1)(a) is
    plain on the face of the provision. The unfortunate practical reality that children
    do sometimes remain in interim society care for longer than this does not
    render the statutory time limit optional. Courts at all levels have stressed "the
    importance of reaching a speedy resolution of matters affecting children":
Catholic
    Children's Aid Society of Metropolitan Toronto v. M. (C.)
, [1994] 2 S.C.R.
    165, at p. 206; see also
Children's Aid Society of Oxford County v. W.T.C.
,
    2014 ONCA 540, 46 R.F.L. (7th) 290, at para. 10;
Children's Aid Society of
    Toronto v. C.J.W.
, 2017 ONCJ 212, at para. 90.

[34]

I
    would also reject the suggestion that the courts below took an "absolutist"
    approach to s. 122(1)(a) at the expense of the best interests of the children
    or the importance of maintaining FNIM connections. The time limits imposed by
    the statute must be presumed to reflect its objectives, including, especially,
    the promotion of the best interests of the children. Here, the trial judge considered
    the children's best interests throughout and emphasized the matter was "long
    overdue for resolution." The appeal judge similarly described the children as
    being "parked in limbo". These considerations are firmly rooted in the
    children's best interests. I see no basis to intervene.

Issue #2: Did
    the Courts Below Misapprehend and Undervalue the Appellant's Evidence?

[35]

The
    appellant asserts the courts below misapprehended and undervalued her evidence.
    She claims they failed to heed this court's admonition in
Kawartha
, at
    para. 80, that the "special considerations that apply to Indigenous children
    must be part of every decision involving Indigenous children." In her factum, she
    says the trial judge engaged in stereotypical reasoning by "impermissibly
    undervaluing the evidence presented by and progress made by a young indigenous
    mother towards being able to resume care for her children".

[36]

I do
    not agree with this submission. The reasons of the courts below and the record confirm
    their sensitivity to the children's Indigenous heritage and highlight the significant
    efforts to ensure all
relevant
information was
    presented:

á

The appeal judge concluded the children were Métis and noted that
    the trial judge's reasons addressed the best interests of the children
    essentially as if he had found them
to be
Métis
    children under the
CYFSA
.

á

Chief Mary Lou Parker of the EWMNNS, who testified by telephone
    from Nova Scotia, advised that the EWMNNS did not want to participate in the
    proceedings. She testified: "we have too many members going through similar
    things and we ... don't care to get mixed up within their rights".

á

Both courts below
were aware of
the
    appellant's commendable personal progress and the trial judge acknowledged that
    "she does care for her children". But they also emphasized the children were at
    risk of harm if returned to her care, given the children's history of exposure
    to domestic violence, the appellant's consistent minimization of those risks,
    her intention to reconcile with T.E., and her past failure to meet plan of care
    objectives.

á

The appeal judge was entitled to defer to the trial judge's decision
    to doubt the appellant's credibility because of her testimony
that
she had fabricated her statements to the police
    that T.E. had assaulted her, which had led to T.E.'s incarceration.

[37]

I see
    no error in the approach or conclusions of the courts below, which were amply
    supported by the record and in my view
are entitled
    to appellate deference
.

Issue #3: Did
    the Trial Judge's Conduct of the Trial Give Rise to a Reasonable Apprehension
    of Bias?

[38]

The
    appellant contends the trial judge showed a reasonable apprehension of bias by assuming
    the role of advocate for the Society. In her factum she claims the trial judge
    "coached the [Society] on the evidence to lead, coached the [Society] on what
    grounds of protection to advance, and excluded or minimized the [appellant's]
    evidence, consistently preferring the evidence of the [Society] even on
    conflicting issues".

[39]

This
    argument was not raised in the courts below.
As
    a general rule, this court will not entertain
entirely
new issues on appeal:
see
e.g.,
Kaiman v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at para. 18.

[40]

In any event, I
disagree with the appellant's
    submission. The trial judge did not "coach" the Society on what evidence to
    lead or the protection grounds to advance. Before the trial began, the trial
    judge conducted a trial management conference to canvass what evidence would be
    led by the parties and to clarify the grounds of protection to be advanced. He was
    rightly concerned that the trial proceed and not be adjourned, noting "this
    matter has got to proceed to trial. It's been outstanding for a very, very long
    period of time." He reiterated in his reasons that the issues were "long
    overdue for resolution", and stated that "the interests of these children have
    been, frankly, regrettably, parked."

[41]

It was in
that context
that
the Society confirmed that the Crown had not released to it a copy of
    the video, leading the Society to move to rely on Douglas J.'s reasons for
    conviction. Before the trial began the Society also advised that two protection
    grounds were in issue - risk of sexual harm and exposure to domestic violence -
    and the parties tendered evidence and made argument on both grounds. Appellant's
    trial counsel (not counsel before this court) conceded in her closing argument that
    both grounds were properly before the court:

[W]e are dealing with both the grounds related to the sexual
    behaviour and the emotional harm and domestic violence. So I'm just conceding
that
we were dealing with both grounds
during the course of the trial despite
the pleading
    not showing both grounds when it was amended.
In
    fact,
I responded to the emotional ground in my amended answer because
I believe that
a lot of the information
was still going to be
surrounding that issue.

[42]

This
    concession undercuts the suggestion that both grounds were not properly before
    the court or
that
there was procedural
    unfairness.
In my view, nothing
in the trial
    judge's handling of the trial supports a claim of reasonable apprehension of
    bias, assessed from the perspective of a reasonable observer present throughout
    the trial, or otherwise compromised the fairness of the trial: see
R. v.
    Ibrahim
, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 96-98.

Issue #4: Given
    the Appellant's Criminal Conviction Has Now Been Overturned, Did the Courts
    Below Err in Relying on It
as a Basis
for a Child
    Protection Finding?

[43]

In
    her factum the appellant asserts that her criminal conviction "played a very
    significant role in the trial results", and now that the conviction has been
    overturned, "a new trial is required."

[44]

I disagree.
    As the appeal judge ruled, the trial judge relied on the conduct depicted in
    the video, not the fact of conviction, in support of the child protection
    finding under s. 74(2)(c) of the
CYFSA
- it was "conduct specific, not
    conviction specific". The trial judge noted that "there was no essential
    dispute as to the cell phone video, what was depicted and the role played by
    the child." In oral reasons made on May 24, 2018, which addressed the two child
    protection risks of exposure of the children to multiple incidents of domestic
    violence and to adult sexual activity, the trial judge found that the mother did
    not explain forthrightly the video's contents and had been slow even to acknowledge
    any risk to the children:

While in cross-examination [the appellant] expressed some
    acknowledgement of poor judgment I do not understand why that was not recited
    within her affidavit material and I am
certainly
not
    satisfied about whether there have been disclosures made to any personnel with
    whom she has engaged at the Windsor Sex Offender Treatment Program. I am also
    mindful that the evidence is
that
these
    children given their ages have been in care since July of 2016 and the evidence
    is clear that the mother did not attend to address sexual issues until February
    of 2018 and at this point there is some regimen of counselling that lays ahead.

[45]

The
    appeal judge held that the conduct depicted in the video met the standard for
    sexual abuse or exploitation under s. 74(2)(c), even though there was no
    evidence that the child was involved in the video for
the
    purpose of
sexually gratifying the appellant or T.E.:

At trial, there was no evidence that the child's presence and
    involvement in the events depicted in the video was for the purpose of sexually
    gratifying either the appellant or T.E. In my view, however, in the context of child
    protection legislation and consistent with the stated
primary purpose of the
CYFSA
(to promote the best interests, protection and well being of children),
    the concepts of "
sexual exploitation
" and "
sexual abuse
" are broad
    enough to encompass circumstances in which: "sex play" between persons who are
    otherwise responsible for the care of a child, is knowingly carried out in
    front of a video camera within feet (if not inches) of the child; the child
    demonstrates an interest in touching and/or interacting with erect male
    genitalia; and the persons with care of the child do not engage in any effort
    to: cease the sexual activity; cease the recording of the sexual activity; or
    engage in any meaningful activity to remove the child or re-direct his
    interests. Instead, in this instance, the appellant encouraged T.E. to continue
    with the sexual activity, while the child attempted to touch T.E.'s penis, without
    any regard to the inappropriate nature of their conduct in the presence of the
    child, or the risks of
sexual harm

to the child that were posed
    by his exposure to their conduct (risks that the appellant now acknowledges). Further,
    when the child successfully made physical contact with T.E.'s exposed erect
    genitalia, the appellant's response was limited to encouraging T.E.'s sexual
    activity, while continuing to record it. [Emphasis in original]

[46]

The
    appellant sought to explain the conduct in the video as resulting from an error
    of judgment, and before this court highlights that her criminal conviction has
    now been overturned.

[47]

In my view, it
is unnecessary to determine whether the
    conduct depicted in the video amounts to sexual abuse or sexual exploitation under
    s. 74(2)(c) of the
CYFSA
. This is because I have concluded that the children's
    recurring exposure to domestic violence provides a sufficient basis to affirm the
    conclusion of the courts below that the children were, and continue to be, in
    need of protection and the appropriateness of an order for extended society
    care.

Issue #5: Did
    the Courts Below Err in Placing the Burden of Proof on the Appellant to Demonstrate
    that an Access Order was in the Children's Best Interests?

[48]

The
    appellant asserts the trial judge's no-access order failed to recognize that
    "[t]he burden is no longer on the person requesting access to demonstrate that
    the relationship is beneficial and meaningful to the child":
Kawartha
,
    at para. 49. She says there was no basis for, and no evidence justifying,
    a no-access order, and the appeal judge erred by failing to correct this error
    of the trial judge.

[49]

The
    appellant is correct to highlight what Benotto J.A. described in
Kawartha
,
    at para. 48, as the "significant shift in the approach to access for children
    in extended society care" under the
CYFSA
. Section 105(5) of the
CYFSA
now provides that "[a] court shall not make ... an access order ... unless the
    court is satisfied that the order ... would be in the child's best interests." At
    para. 49 of
Kawartha
, Benotto J.A. explained the change in
approach as follows
:

The burden is no longer on the person requesting access to
    demonstrate that the relationship is beneficial and meaningful to the child and
    will in no way impair the child's future adoption opportunities. Instead, the
    court is to undertake a best interests analysis, assess whether the
    relationship is beneficial and meaningful to the child, and consider impairment
    to future adoption opportunities only as part of this assessment and only where
    relevant. This means
that
it is no longer the
    case that a parent who puts forward no evidence will not gain access.
    Similarly, while any evidence of possible impairment to adoption opportunities
    would have thwarted previous requests for access, under the new Act, access is
    to be ordered for a child with otherwise excellent adoptive prospects if it is
    in her overall best interests.

See also
J.G.
, at paras. 37-53.

[50]

Here,
    the trial judge's reasons for the no-access order were brief, and simply
    highlighted the absence of evidence to support access:

There is no evidence to support any resolve but for extended [society]
    care and there is no evidence to support the matter of access.
Accordingly, the
order will be extended [society]
    care, no access.

[51]

The
    appeal judge concluded
that
there was nothing
    to justify substituting a different disposition than the one ordered by the
    trial judge.

[52]

Under
Kawartha
, the absence of evidence from the appellant to support access
    did not
in itself
justify denying the appellant
    access. The question is whether an access order would be in the best interests
    of the children.

[53]

Here,
    contrary to the trial judge's finding,
there was some
    evidence relating to
access in the foster mother's letter dated July 4,
    2017, where she stated that she wished to adopt both children should they be
    placed in extended society care with "no access or access by photographs". Access
    by photographs would thus not undermine the children's prospects of being
    adopted by the foster mother. Neither of the courts below appear to have
    considered this option. Even this very limited access could be significant to
    the appellant because it would entitle her to notice of the adoption
    proceedings and would keep the door open to some form of openness in the adoption
    that might be agreeable to the potential adoptive parent:
CYFSA
, s.
    195. I thus conclude that the ruling that there should be no access was tainted
    by legal error.

[54]

Despite
    this, I have concluded that this is not an appropriate case to order a
    rehearing on access. In all the
circumstances of this
    case
, the legislation's paramount purpose of promoting the best interests,
    protection, and well-being of children requires the matter to proceed to adoption,
    especially because the children have been in the Society's care well beyond the
    statutory timelines and because the record here is sufficient to permit this
    court to make an appropriate access order. The foster mother has expressed a
    willingness to accept photograph access. Nothing in the record suggests that
    access by photographs would not be in the children's best interests. Such
    access would allow the children to maintain, even if in a very modest way, some
    connection through their birth mother with their Métis culture, heritage, and
    tradition, a statutory factor the court must consider in making a determination
    in the best interests of the children:
CYFSA
, s. 74(3)(b).
In my view, granting
the appellant the right to photograph
    access during the period of extended society care would be in the best
    interests of the children.

[55]

I
    would therefore replace the no-access order with an order granting the
    appellant the right to monthly photograph access to the children.

[56]

Where
    the Society
begins planning
for the adoption
    of an FNIM child, s. 187(2) of the
CYFSA
requires the Society to
    consider the benefits to the child of an openness agreement or order. The
    Society should therefore ascertain the foster mother's most up-to-date views on
    the extent of acceptable access between the children and the appellant that
    could lead to an openness agreement. Additional forms of access or openness to
    consider might include the exchange of letters, gifts, emails, or video calls.

[57]

The Society should also
    contact the Office of the Children's Lawyer before serving notice of adoption. This
    early notice will allow the Office of the Children's Lawyer to assess whether
    it would be in the children's best interests to employ an alternative dispute
    resolution process to explore openness agreement options acceptable to the prospective
    adoptive mother.

[58]

It
    is hoped the children's adoption proceedings can start promptly and proceed
    expeditiously.

Issue #6: Should the Appellant's Fresh Evidence Be Admitted on
    Appeal?

[59]

The
    appellant seeks to adduce further and fresh evidence before this court. The
    evidence provides information about the appellant's mental health treatment,
    her attendance at parenting courses, skills training and employment programs,
    encloses her appeal factum from her criminal appeal, and includes
    correspondence between her counsel and the Society trying to negotiate interim
    access. The Society consents to the admission of at least some of this
    evidence, but notes some is very similar to evidence
that
    was
not admitted on the first appeal.

[60]

It
    is not useful or necessary to address each item of evidence individually. The appellant
    is to be commended for the steps she has taken to improve her education, mental
    well-being, and life prospects. However, I am not persuaded this new evidence -
    much of which is very general and simply describes the appellant's
    participation in various programs - sufficiently assuages the significant and
    longstanding risk of harm to the children because of recurring exposure to
    domestic violence under s. 74(2)(h) of the
CYFSA
. Nor does it provide useful
    information on whether returning the children to the appellant would be in
    their best interests.

[61]

The
    Society consented to admitting some
, but not all,
of
    this evidence. I would be prepared to admit all the evidence, but it
is not entitled to much weight
.
In my view, the
evidence does not change the result.

Issue #7: Is the Appellant Entitled to Full Indemnity Costs
    for this Appeal?

[62]

The
    appellant claims full indemnity costs for this appeal. The Society does not
    seek costs, even though it largely succeeded before this court.

[63]

In my view, this
appeal presents no "exceptional
    circumstances" for an award of costs against the Society: see
A.M. v.
    Valoris Pour Enfants et Adultes de Prescott-Russell
, 2017 ONCA 818, at
    para. 4. I would therefore make no order as to costs.

E.

DISPOSITION

[64]

I
    would admit the fresh evidence. I would allow the appeal in part, only to the
    extent of granting the appellant an order for monthly photograph access to the
    children. I would make no order as to costs.

Released: October 28, 2020 ("D.D")

"M. Jamal J.A."

"I agree. Doherty J.A."

"I agree. Alexandra Hoy
    J.A."





[1]

T.E. participated in a trial management conference on the
    first day of trial but then withdrew and did not participate further.



[2]
Although the cellphone
video was not in evidence in the child
    protection proceeding, Douglas J.'s reasons for conviction were admitted. The appellant
    conceded that they accurately described the video's contents.


