



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.





CITATION:
Childrens Aid Society of the
          Regional Municipality of Waterloo v. C.A.D., 2011 ONCA 684



DATE: 20111104



DOCKET: C53695



COURT OF APPEAL FOR ONTARIO



Blair, Juriansz JJ.A. and Pepall J. (
ad hoc
)



BETWEEN



The Childrens Aid Society of the Regional Municipality
          of Waterloo



Applicant (Respondent in Appeal)



and



C.A.D.



Respondent (Respondent )



and



Z.S.



Respondent (Appellant in Appeal)



Brigitte Gratl, for the appellant



Kim Putman, for the respondent Childrens Aid Society of the
          Regional Municipality of Waterloo



Heard: October 26, 2011



On appeal from the order of Justice Wendy L. MacPherson of the
          Superior Court of Justice dated April 12, 2011.



Juriansz J.A.
:



[1]

The
    appellant, the biological father of the child, appeals the decision of the
    Superior Court dismissing his appeal from the order of Crown wardship without
    access granted by the Ontario Court of Justice on summary judgment. An order of
    Crown wardship without access has the effect of terminating parental rights making
    the child eligible for adoption.

Background

[2]

When the
    child was born in February 2008, her paternity was not clear. The child was
    initially in the care of her mother and was apprehended by the Childrens Aid Society
    of the Regional Municipality of Waterloo (the Society) on July 28, 2008 from
    a person with whom the mother placed the child because she felt unable to cope
    with her. The appellant, who was living in Port Elgin, was confirmed as the
    father by DNA testing. The Society had concerns about the fathers physical
    health, as it received records that indicated he had a history of blackouts,
    head trauma resulting from significant physical abuse by his father, abuse of
    prescription drugs, and regular use of marijuana. The Society communicated its
    concerns to the father and advised him of the information he needed to provide,
    and the actions he needed to take, in order to address those concerns.

[3]

The Society
    arranged twice weekly access for the father. The father had difficulty
    exercising that right of access because of transportation obstacles, and on
    February 21, 2009, he notified the Society that he had moved to Kitchener.
    After his move, he exercised regular and consistent access.

Orders Below

[4]

On March 25,
    2009, an order was made making the child a Society ward for a four month period.
    The Societys summary judgment motion for an order of Crown wardship without
    access was eventually heard by Hardman J. on March 23, 2010. The father opposed
    the motion and sought placement of the child in his care. The mother supported
    the motion, but indicated that if the child were placed with the father, she
    would want access.

[5]

Hardman J.
    correctly identified the test on a motion for summary judgment as whether there
    is a need for a trial to establish the material facts that are necessary to the
    determination of the application. She also appropriately identified the use of
    the summary judgment rule as a procedural remedy to promote the childs best
    interests and to support the time limitations established by s. 70 of the
Child
    and Family Services Act
, R.S.O. 1990, c. C.11.  Hardman J. gave
    comprehensive reasons for granting the order. The father had few community or
    family supports, had not provided medical information to explain his blackouts
    or the continuing effects of his head trauma, had failed to complete the
    counselling and parenting programs the Society had suggested, had not ceased
    the regular marijuana use he had commenced at age 13, and showed lack of
    insight about the matters that were of concern to the Society.  Contradictions
    in the fathers own material gave rise to concerns about reliability, and there
    was recognition that any continuing access by the father would have to be on a
    supervised and trial basis.  Based on the fathers admission that he posed a
    risk to the child, the fact that he had not addressed those risks in the
    preceding year, and that he had not provided any evidence that change
    supporting the return of the child was even in distant view, the motion for
    summary judgment was granted and the child was made a Crown ward with no
    access.

[6]

The fathers
    appeal was heard by MacPherson J. on March 24, 2011. On April 12, 2011, she
    released reasons dismissing the appeal.

[7]

The issue on
    appeal before MacPherson J. was whether the motion judge erred in finding that
    there was no genuine issue for trial. The father submitted that the motion judge
    made impermissible findings of credibility and findings of fact not supported
    by the evidence.  It was further submitted that the Parenting Capacity
    Assessment of Dr. Perlman was improperly relied upon.

[8]

The father
    also tendered fresh evidence of his marriage to a woman who was his girlfriend
    at the time the original order was made, the birth of a new child to this
    couple, and that while the Childrens Aid Society of Grey Bruce had commenced a
    protection application, the new child remained in the parents care subject to
    supervision by that society. The respondent Society also filed an affidavit
    confirming that the child who is the subject of this appeal has been placed in
    an adoptive home on May 31, 2010 and has settled in and adjusted well to that
    home.

[9]

The appeal
    judge dismissed the appeal, rejecting the fathers submissions that there were
    factual issues that required a trial, that there had been inappropriate
    findings of credibility, and that there was any error in the motion judges
    reliance on Dr. Perlmans assessment. The fresh evidence did not show that the
    father had developed insight into his deficiencies or that he would be amenable
    to taking steps to address his shortcomings. The three year old child had been
    in the Societys care for all but the first five months of her life, and was in
    an adoptive home where she was doing well. The order of Crown wardship with no
    access continued to be the only order in the childs best interests.

Analysis

[10]

For the
    reasons set out by MacPherson J., there is no merit to the argument that the
    motion judge erred by granting summary judgment.

[11]

The father
    has again tendered new evidence on this appeal. The Childrens Aid Society of
    Grey Bruce has withdrawn its protection application in relation to the fathers
    new baby, replacing it with a plan of service. The father submits that this new
    evidence demonstrates that there is at least a triable issue as to his capacity
    to parent.

[12]

The fresh
    evidence does demonstrate the fathers progress as a parent. He is to be
    commended for that progress. It is evident that the father loves the child and
    deeply wants to be a parent to her. From his perspective, proceeding with this
    second appeal is understandable. The law, however, requires that the analysis
    be conducted from the perspective of the childs best interests.

[13]

For the first
    five months of her life, the child was raised by and attached to her mother. 
    Initially, she had no relationship with her father. It was only after the
    Society became involved that the child had weekly and then biweekly supervised
    visits with the father from late 2008 to May 14, 2010. The child has not seen
    the father since then. Those visits gave the child the opportunity to form a
    connection with the father, but not to cultivate a deep and abiding
    relationship.

[14]

The fathers
    suitability to parent the child was thoroughly and carefully assessed first by
    the motion judge and then by the appeal judge. The evidence, including the
    fresh evidence, shows that the father continues to develop as a parent, but it does
    not dispel the continuing concerns about his capacity to care for the child.
    Since May 31, 2010,
the
    child has been with a family who wishes to adopt her and the adoption has been
approved pending these legal
    proceedings.

[15]

It is in the
    child
s
    best interests, now, that there be finality, and that she have a permanent
    home.
The fresh
    evidence, though admitted, does not give reason to displace the order of Crown
    wardship with no access.

Conclusion

[16]

The appeal is
    dismissed. The Society does not seek costs.

R.G. Juriansz J.A.

I agree R.A. Blair
    J.A.

I agree S.E. Pepall J. (
ad hoc
)

RELEASED:  November 4, 2011


