



WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
    PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives from all
    or a part of a hearing; or

(c) prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

where the court is of the opinion that the presence
    of the media representative or representatives or the publication of the
    report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)  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 childs parent
    or foster parent or a member of the childs family.

45(9)  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.




COURT OF APPEAL FOR ONTARIO

CITATION: Family and Children's Services of the Waterloo
    Region v. K.F., 2017 ONCA 157

DATE: 20170222

DOCKET: M47470 (C63291)

Pardu J.A. (In Chambers)

BETWEEN

The Childrens Aid Society of the Regional
    Municipality of Waterloo

Applicant (Respondent)

and

K.F.

Respondent (Appellant)

Gloria Ichim, for the appellant

Jeffrey W. Boich, for the respondent

Heard: February 10, 2017

ENDORSEMENT

[1]

The appellant K.F. moves for interim access
    pending the hearing of an appeal to this court from the dismissal by the
    Superior Court of Justice of her appeal from a decision of the initial
    application judge making her son a Crown ward, without access.

[2]

She submits that there is a serious issue to be
    determined on appeal  namely, whether the Superior Court appellate judgment
    and the decision of the application judge were correct  and that irreparable
    harm may occur if access is not continued.

A.

Factual background

[3]

Z.A.F. was apprehended by the respondent Childrens
    Aid Society on July 27, 2013 at about eight weeks of age and has remained in
    the care of the same foster parents since that date, about three and a half
    years.

[4]

The Society subsequently brought a protection application
    in the Ontario Court of Justice under Part III of the
Child and
    Family Services Act
, R.S.O. 1990, c. C.11 (CFSA), which
    was heard between May and June of 2015.

[5]

Following a twelve-day trial, in reasons for
    judgment released December 1, 2015, the application judge made an order of
    Crown wardship with no access by either the father or the mother.

[6]

The application judge found that Z.A.F. was in
    need of protection. She accepted the expert testimony that the quality of the
    appellants parenting was hampered by her mental health issues, which made the
    appellant lack insight into Z.A.F.s emotional and developmental needs. The
    appellant had also exposed Z.A.F. to adult conflict and domestic between her
    and her partners.

[7]

The application judge also reviewed some of the expert
    evidence about the bond between the appellant and Z.A.F. She found that,
    although there was some level of affection expressed, there was no strong emotional
    bond between them, and the appellant at times exhibited emotional removal or
    detachment from Z.A.F.

[8]

Given these difficulties, as well as the
    unlikelihood that the appellant would make the changes necessary to become a
    successful parent and lacked significant community or family support, the application
    judge found that a supervision order would not adequately protect the child.

[9]

After concluding that the childs best interests
    required a Crown wardship order, the application judge held that there was no
    basis for an access order. Z.A.F. lived in the care of foster parents for most
    of his life, and there was no evidence that the relationship between K.F. or
    her partner was meaningful or beneficial.

[10]

The appellant appealed this decision to the
    Superior Court of Justice. She brought a motion for a stay pending that appeal,
    as well as an order for access pending the appeal.

[11]

On February 22, 2016, the Superior Court motion
    judge  ordered interim access pending the appeal for two hours once a week, to
    be monitored by the Society until disposal of the appeal.

[12]

This access continued until the mothers appeal
    was dismissed by The Superior Court appeal judge on January 3, 2017.

[13]

The appeal judge concluded, at para. 21 of his
    reasons, 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. On the appeal, the appellants argument was
    essentially that the trial judge should have made different findings of fact.

[14]

The appeal judge dealt with the issue of access
    following an order for Crown wardship at paras. 28 and 33-35:

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 childs opportunity for adoption (despite the 2011 amendments to
    the
Act
). I agree with this submission.



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.

No new evidence was offered on this issue other than counsels
    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.

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.

[15]

There was a good-bye visit between the K.F. and
    Z.A.F. on January 9, 2017.

B.

Analysis

[16]

Section 59(2.1) of the CFSA sets out the
    conditions which must be satisfied before an access order can be made in favour
    of a parent, following an order for Crown wardship:

Access: Crown ward

(2.1) A court shall not make or vary an access order
    made under section 58 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 childs
    future opportunities for adoption.

[17]

Once
    a decision is made for Crown wardship, the burden of persuading a court that an
    access order should be made, and that the statutory conditions are met, is on
    the parent seeking access: see
Catholic Childrens Aid Society of
    Metropolitan Toronto v. M. (C.),
[1994] 2 S.C.R. 165, at p. 207; and
Childrens
    Aid Society of Toronto v. P. (D.)
(2006), 19 R.F.L. (6th) 267 (Ont. C.A.),
    at para. 8.

[18]

It
    is of course a very serious matter for the appellant to have had a Crown
    wardship order made without access to her child. I am not persuaded, however,
    that there is a substantial ground of appeal raised in this court. Again, the appellant
    takes issue with the factual findings made by the trial application judge and
    the appeal judge on the fresh evidence.

[19]

I
    have examined the appellants Notice of Appeal in this court. She requests that
    the child be placed with her subject only to a six-month supervision order. It
    is difficult to see how that relief could be granted in the circumstances of
    this case. She asks in the alternative that the child be placed with an 18-year-old
    sibling. This was not advanced at trial. She raises constitutional arguments
    suggesting that various sections of the
CFSA

are void on the ground they violate rights guaranteed by the
Charter
.
    These arguments were not advanced at trial.

[20]

I
    accept that the appellants onus to show that there are serious issues raised
    by the appeal is not a heavy one, but I do have difficulty in concluding that
    there is arguable merit in one of more of the grounds of her appeal. I
    recognize that a motion such as this does not permit a full examination of the
    grounds of appeal.

[21]

There
    are findings by two judges that no order for access should be made on the
    ground that the mother had not shown that the relationship between the person
    and the child is beneficial and meaningful to the child. A decision whether to
    grant access pending appeal must be based on the best interests of the child.

[22]

There
    has been a good-bye visit. Only a month has elapsed since then. Should access
    be resumed until this appeal is heard and decided?

[23]

I
    have reviewed the fresh evidence that was before the appeal judge describing in
    detail the interaction between the mother and her child during the weekly two
    hour access visits. I am not persuaded that those visits are in the childs
    best interests or that the child will suffer irreparable harm if there is no
    access until this appeal is decided. This court gives priority to appeals from
    decisions making Crown wardship orders and this appeal should be able to be
    heard within months. All transcripts have been prepared. In the event the
    appellant succeeds on appeal in obtaining an order for access to her child, I
    am not satisfied that a resumption of access would be traumatic for the child
    given the nature of their relationship.

[24]

For
    these reasons, the motion for access to the child pending the hearing of the
    appeal is dismissed.

G. Pardu J.A.


