



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:
Children's
    Aid Society of Toronto v. V. L., 2012 ONCA 890

DATE: 20121219

DOCKET: C55439

Cronk, Armstrong and Epstein JJ.A.

BETWEEN

Childrens Aid Society of Toronto

Applicant (Respondent on Appeal)

and

V.L. and P.L.

Respondents (Appellants on Appeal)

V.L. and P.L., acting in person

Sherri Smolkin and Linda Hofbauer, for the respondent
    Childrens Aid Society of Toronto

Elizabeth McCarty and Michal Harel, Office of the
    Childrens Lawyer, for the child A.L.

Heard: December 3, 2012

On appeal from the order of Justice Darla A. Wilson of the
    Superior Court of Justice, dated June 6, 2012, with reasons reported at 2012
    ONSC 2477, [2012] O.J. No. 2765.

Epstein J.A.:

I       introduction

[1]

On
    December 17, 2007, when the appellants daughter, A.L., was five years of age,
    she was declared a child in need of protection pursuant to the

Child and
    Family Services Act
, R.S.O. 1990, c. C.11 (the 
CFSA
).  Subsequent
    child protection proceedings resulted in A.L. being placed under Crown
    wardship, without access, for adoption.

[2]

A.L.
    was brought to the attention of the Childrens Aid Society (the CAS) on March
    7, 2007, when her doctor referred her to the Suspected Child Abuse and Neglect
    Unit at the Hospital for Sick Children due to concern that she might be
    suffering from rickets. In response to this concern, and upon attending the
    parents home, where A.L. lived with her parents, a marijuana grow-op was
    discovered.  A.L. was admitted into the hospital and tests demonstrated that,
    in addition to having rickets, she had other medical problems, including testing
    positive for cannabinoids, due to exposure to marijuana in the home.

[3]

Charges
    were laid against the appellants arising out of the drug operation and their failure
    to provide their daughter with the necessaries of life.

[4]

Following
    her apprehension, A.L. remained in the temporary care and custody of the CAS.
    Subsequently, in July 2007, on consent of the parties, she was placed in the
    temporary care of her maternal aunt, J.C., and J.C.s husband, D.D.

[5]

On
    November 29, 2007, during a supervised access visit, the appellants, aware that
    the CAS had brought a motion for summary judgment and that it was scheduled to
    be heard on December 17, 2007, abducted A.L. The family was on the run until April
    14, 2008, when the police finally located them in Montreal.

[6]

The
    appellants were arrested and incarcerated. Since then, they have had no access
    to A.L.  Her father, P.L, pleaded guilty to possession of marijuana for the
    purpose of trafficking, and both of her parents pleaded guilty to abduction and
    endangering the health of A.L.  They were sentenced in April 2009.

[7]

In
    the meantime, the motion for summary judgment took place as scheduled.  A.L.
    was found to be a child in need of protection pursuant to s. 37(2) of the
CFSA
, meaning that it was held that she suffered or was
    at risk of suffering physical harm inflicted or caused by the appellants,
    including through neglect, and that she required medical treatment that the
    appellants did not provide.  The motion judge found that there was evidence of
    severe neglect in the appellants treatment of their daughter, and she placed
    A.L. in the
care of J.C. and D.D. for six months, subject to the
    supervision of the CAS.

II      STATUS REVIEW AND
    APPEAL

[8]

A
    status review application was brought seeking an order making A.L. a ward of
    the Crown, without access, for adoption.  She was placed back in the care of
    her aunt and uncle. In April 2009, after an eight-day trial, A.L. was made a
    Crown ward with no access to the appellants and available for adoption.  This
    decision was overturned on appeal on the basis of reasonable apprehension of
    bias on the part of the trial judge and a new trial was ordered.

[9]

The
    second trial, which took 14 days, ended in the decision of Spence J. of the
    Ontario Court of Justice, dated November 22, 2010, in which he came to the same
    conclusion as that reached in the first status review hearing.  Spence J. made
    the same order and  A.L. again became a ward of the Crown, without access,
    subject to adoption.

[10]

The appellants
    appealed from this order to Wilson J. of the Superior Court of Justice, raising
    a number of issues. The primary issues were that the trial judge:

1.   erred in
    concluding that the appellants failed to seek medical attention for A.L.;

2.   demonstrated
    bias or a reasonable apprehension of bias;

3.   erred in
    his consideration of the best interests test under s. 37(3) of the
CFSA
;
    and

4.   erred in
    his finding that the appellants had continually demonstrated intransigence, a
    lack of co-operation, bad judgment and were ungovernable.

[11]

Wilson J. reviewed the
    entire history of events preceding and following the protection order. She
    noted the evidence relating to A.L.s condition and circumstances upon being
    apprehended, including
extensive medical
    evidence that A.L.s health was at risk. V.L. herself testified that she had
    not taken A.L. to a doctor for several years despite the fact that she noticed
    her daughters developing physical abnormalities associated with rickets.
Wilson
    J. reviewed the evidence pertaining to the five months A.L. and the appellants
    were on the run and their conduct subsequent to apprehension.
She went through the evidence of the appellants
    conduct leading up to the Crown wardship order, evidence that demonstrated
their
    lack of respect for authority and their apparent determination to maintain an
    acrimonious relationship with J.C. and D.D
.
The
    appeal judge also reviewed updated information concerning A.L.s experience living
    with her aunt and uncle.

[12]

After careful
    consideration of the evidence relevant to the trial judges findings and his analysis
    as set out in his lengthy reasons, Wilson J. concluded that the trial judges
    findings of fact were supported by the record, and that there was no error in
    his application of the law pertaining to the courts role on a status review. She
    dismissed the appeal.

III     ISSUES

[13]

The many issues the
    appellants raise in this appeal can be grouped as follows:

1. Did the appeal judge err in failing to overturn the finding
    that A.L. was in need of protection and in failing to overturn the
    determination of the disposition found to be in her best interests?

2. Did the appeal judge err in failing to find that the trial judge
    exhibited a reasonable apprehension of bias?

3. Did the appeal judge err in failing to find misconduct on
    the part of the CAS?

4. Did the appeal judge err in failing to find grounds for a mistrial?

5. Did the appeal judge err in failing to admit all the fresh
    evidence the appellants proposed to have admitted?

6. Did the appeal judge err in her obligation to raise the
Charter

rights of A.L. and her parents?

IV    ANALYSIS

The overarching principles

[14]

Two principles
    dominate the analysis  the paramount consideration of the best interests of
    the child and the standard of review.

[15]

First, the court owes
    a special duty to ensure that the safety and well-being of children are
    protected.  As a result of this special duty, the best interests of the child
    are always the paramount consideration in child protection proceedings.

[16]

Second, the degree of
    deference owed to the trial judge is particularly high in child protection
    proceedings. In
C.(G.C.) v. N.B. (Min. of Health & Community Services)
,
    [1988] 1 S.C.R. 1073, at para. 5, the Supreme Court described the standard of
    review applicable in such cases as trial judges decisions, particularly in
    matters of family law, should not be interfered with lightly by appellate
    courts absent an error in principle, a failure to consider all relevant
    factors, a consideration of an irrelevant factor or a lack of factual support
    for the judgment.

[17]

This court should only
    intervene, therefore, if the Superior Court appeal judge erred in principle by
    failing to identify a material error in the decision below.

Fresh evidence motion

[18]

The appellants and the
    respondents have applied to have fresh evidence admitted on this appeal.

[19]

Section 69(6) of the
CFSA
provides that the court may
    receive further evidence related to events that took place after the previous
    hearing. The test for admitting fresh evidence in child protection proceedings is
    set out in
Catholic Childrens Aid Society of Metropolitan Toronto v. M.(C.)
,
    [1994] 2 S.C.R. 165, at para. 23, as follows.  The proposed evidence should be
    admitted if: a) it could not have been adduced before; b) it is highly relevant;
    c) it is potentially decisive to a best interests determination; d) it is
    credible, and; e) it is uncontroverted and bridges the gap between the evidence
    submitted before the prior court and the appeal court.

[20]

The appellants seek to
    introduce on this appeal V.L.s affidavit containing information about the
    appellants circumstances, including their residence and employment, their
    contact with the CAS, the disclosure the CAS had provided, and statements about
    their extended family.

[21]

The respondents do not
    oppose the admission of some of the proposed evidence.  However, they oppose
    the inclusion of: 1) certain evidence about the criminal proceedings; 2)
    evidence the appeal judge refused to admit that the appellants contend
    discloses A.L.s views and preferences; 3) argument about the role of the
    Childrens Lawyer; and 4) statements about the extended family.

[22]

In my view, the
    paragraphs to which the respondents take objection either fail to meet any of
    the criteria set out in
M.(C.)
or contain argument or inadmissible
    hearsay.  I would therefore admit the affidavit into evidence with the
    exception of paragraphs 9, 18, 29, 31 to 42, and 44 to 48.

[23]

The CAS moves to have
    an affidavit admitted sworn by a CAS services worker containing up-to-date
    information of A.L.s current circumstances. It is precisely the type of
    evidence that s. 69(6) of the
CFSA
contemplates. This evidence is
    consistent with the intent of the legislation by assisting the court in making decisions
    pertaining to the welfare of particularly vulnerable children by allowing current
    information relevant to the determination of the childs best interests to be available.
    In my view, the fresh evidence proposed by the CAS should be admitted.

Issues on Appeal

1.    Did the
    appeal judge err in failing to overturn the finding that A.L. was in need of
    protection and in failing to overturn the determination of the disposition
    found to be in her best interests?

[24]

The appellants submit that the courts below failed to examine the
entirety

of the
    situation, taking into consideration the factors surrounding A.L.s initial apprehension
    through to the dismissal of the appeal by Wilson J.

[25]

I start with a
    critical point  the appellants did not appeal the protection order made in
    December 2007.  At the time of the hearing of the status review application and
    of the appeal before the Superior Court judge, the protection order was final. 
    Neither the trial judge nor the appeal judge had jurisdiction to go behind it.

[26]

The appellants submit
    that this is unfair, and that they have been deprived of their rights to
    challenge the protection order.  I do not agree.  The appellants, aware of the
    date of the pending CAS motion for summary judgment, chose to abduct A.L. rather
    than attend court and present their case opposing the order sought.  While the
    time to appeal the order had expired, counsel for both respondents submit that
    in circumstances such as these, the appellants, apprised of the protection
    order shortly after they were arrested, could have obtained an extension of
    time to appeal.  No extension was sought.

[27]

Notwithstanding the finality of the original order, the trial
    judge considered the entire history of the matter over the course of a 14-day
    hearing in which the appellants fully participated.

[28]

In lengthy reasons, Spence
    J. devoted twelve pages to a summary of the evidence relating to A.L.s
    apprehension, the original protection order, and ongoing concerns about whether
    she would be at risk if she were returned to her parents.  He made findings of
    fact that were open to him on the record, and from those findings determined
    that A.L. remained in need of protection.  He summarized his assessment of
    A.L.s circumstances in relation to her parents as follows:

I have no doubt that the parents love A.L....If this were
    enough to return a child to her parents, I would not hesitate to make an order
    sending A.L. back to her parents. However, that is not what this case is about.
    As the evidence unfolded during the trial, the over-arching theme became the
    parents' unremitting bad judgment. And here I am not referring to judgment in
    respect of minor issues but, rather, the kind of judgment that goes to the very
    core of A.L.'s safety, as well as her emotional and physical wellbeing. Regrettably,
    this bad judgment is not something which is merely historical in nature, but,
    instead, something which the parents have never demonstrated either a
    willingness or ability to address, right up to and during the course of trial.

[29]

As previously indicated,
    the trial judge concluded that A.L.s best interests would be served by making her
    a Crown ward, with no access, and available for adoption by her aunt and uncle
    with whom she had been living for several  years and in whose care she was
    thriving.

[30]

Wilson J. applied the
    appropriate standard of review and upheld Spence J.s order making A.L. a Crown
    ward, with no access, for the purpose of adoption.
The evidence of the appellants unremitting  bad judgment, in the
    words of Spence J., and its effect on A.L. and the evidence of her happiness,
    good health and the overall improvement in her welfare after having lived for
    several years with her extended family overwhelmingly supported this
    disposition.

[31]

I see no basis for this court to interfere and would therefore not
    give effect to this ground of appeal.

2.     Did the
    appeal judge err in failing to find that the trial judge exhibited a reasonable
    apprehension of bias?

[32]

The appellants argue that by making a veiled direction to counsel
    to prepare A.L. to consent to adoption, the trial judge demonstrated bias, or
    that a reasonable person would apprehend bias.

[33]

The test for bias is
    whether an informed person, viewing the matter realistically and practically,
    and having thought the matter through, would think it more likely than not that
    the decision maker would not decide fairly: see
R. v. S. (R.D.)
,
    [1997] 3 S.C.R. 484, at para. 31. In my view, Wilson J. correctly concluded
    that the appellants had not met this high threshold.

[34]

I agree with the
    appeal judge that the record does not give rise to any concern about bias or
    reasonable apprehension of it. A fair reading of the impugned part of the
    transcript shows that Spence J., in an attempt to obtain information about A.L.s
    views, inquired whether anyone had asked her about the possibility of her
    consenting to being adopted.  While this question may not have been relevant
    given the childs age
, nothing about the question or any
    comments he may have made in the course of asking the question disclose bias or
    are suggestive of bias in the sense that he may have pre-determined the matter.

[35]

I would not give
    effect to this ground of appeal.

3.
      Did the appeal judge err in failing to find misconduct on the part of the CAS?

[36]

The appellants contend that one of the CAS workers was determined
    to remove A.L. from her parents, and to this end
purposely
    misled the court and provided false evidence.

[37]

The trial judge, having
    heard all the evidence, including V.L.s cross-examination of the CAS worker,
    concluded that she was a credible witness. He found, as he was entitled, that
    the appellants allegations against the CAS worker were not borne out or were
    irrelevant.

[38]

The appeal judge gave
    these findings the appropriate degree of deference and dismissed this ground of
    appeal.  I see no error in her rejection of this argument, and would therefore
    not give effect to this ground of appeal.

4.    Did the
    appeal judge err in failing to find grounds for a mistrial?

[39]

The appellants argue, for the first time in this court, that the
    trial judge, in an effort to bolster J.C.s credibility, improperly interfered
    in her cross-examination. I have been unable to find anything in the transcript
    that supports this submission, and I would reject this ground of appeal.

5.
      Did the appeal judge err in failing to admit all the fresh evidence the
    appellants proposed to have admitted?

[40]

In my view, the appeal
    judge correctly applied the principles relevant to the admission of fresh
    evidence as set out in the
CFSA
and the applicable case law.  Applying
    the test in
M.C.
, she determined that some of the fresh evidence
    should be admitted and some should not. I see no error in the exercise of her
    discretion in this respect and would not give effect to this ground of appeal.

6.
      Did the appeal judge err in her obligation to raise the
Charter

rights
    of A.L. and her parents?

[41]


The appellants, again for
    the first time in this court, submit that they have been deprived of their security
    of person and have been treated contrary to the principles of fundamental
    justice.

[42]

The appellants
    arguments with respect to this issue, indeed with respect to the entire appeal,
    centre on their ongoing disagreement with the trial judges interpretation of
    the evidence and their distrust of and animosity toward J.C., D.D. and the CAS.
While they are understandably distraught over the
    outcome of this case, the fact that the appellants disagree with that outcome
    does not give rise to a
Charter
breach.

V     CONCLUSION

[43]

The appeal judges reasons reveal a thoughtful consideration of the
    entire history of this matter and of the trial decision.  In my view, there is
    no reason to interfere with her conclusion that the appeal ought to be
    dismissed.

[44]

A.L. deserves to be both loved and protected from harm. The
    record contains many comments that make it abundantly clear that the appellants
    love A.L.  However, the record also discloses that, given their unrelenting bad
    judgment in matters pertaining to their daughters welfare, under their care, she
    is at risk of harm.  In contrast, she has, for over four years now, been in a
    home where she is loved, is safe and is flourishing.

VII   DISPOSITION

[45]

For these reasons, I
    would dismiss this appeal without costs as no costs are sought by the
    respondents.

Released: DEC 19 2012

EAC                                                Gloria
    Epstein J.A.

I
    agree E.A. Cronk J.A.

I
    agree Robert P. Armstrong J.A.


