



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: Catholic
    Children's Aid Society of Toronto v. A.Y., 2015 ONCA 493

DATE: 20150703

DOCKET: C59715

Weiler, Cronk and Pepall
    JJ.A.

IN THE MATTER OF the
Child and Family Services Act
,
    R.S.O. 1990, c. C.11, as amended

AND IN THE MATTER OF the Children:

Y.N.Y.

M.L.Y.

S.C.H.Y.

M.K.Y.

BETWEEN

Catholic Childrens Aid
    Society of Toronto

Applicant (Respondent)

and

A.Y.

Respondent (Appellant)

and

P.Y.

Respondent (Appellant)

A.Y. and P.Y., acting in person

Rena Knox, for the Catholic Childrens Aid Society of
    Toronto

Catherine Bellinger, for the Office of Childrens
    Lawyer on behalf of the children

Heard: May 15, 2015

On appeal from the order of Justice
    Craig Perkins of the Superior Court of Justice, dated November 10, 2014.

ENDORSEMENT

[1]

The appellants submit that the judge at first instance erred in granting
    Crown wardship of their four children, now aged 16, 13, 9, and 6 years old, on
    the motion for summary judgment brought by the respondent, the Catholic
    Childrens Aid Society of Toronto (the CCAS). The grounds of appeal raised before
    the summary judgment appeal judge fell into three broad groups: (i) procedural
    fairness issues and whether summary judgment ought to have issued; (ii)
    evidentiary issues, such as misapprehension of the evidence, overemphasis of some
    aspects of the evidence, failure to consider other aspects of the evidence and
    lack of evidence for certain findings; and (iii) the nature of the order that
    ought to have been made.

[2]

We see no error in the decision of the summary judgment appeal judge. 
    With respect to the specific issues raised by the appellants on appeal, we
    conclude as follows.

Crown Wardship

[3]

The order that the children were in need of protection and making them
    Crown wards was properly made. Notwithstanding the voluminous fresh evidence
    filed on this appeal, we are of the opinion that Crown wardship continues to be
    in the best interests of the children. We note that this disposition is in
    accordance with the wishes of the children.  As the summary judgment appeal
    judge observed, a childs wishes, especially as he or she grows older, are an
    important component of the determination of the childs best interests.

[4]

Accordingly, the appeal with respect to Crown wardship is dismissed.

Proposed Parental Access

[5]

With respect to access by the parents, the summary judgment appeal
    judge noted, at para. 47 of his reasons:

[T]he test involves not only a beneficial and meaningful
    relationship, but also a finding that access would be in the childrens best
    interests. There was evidence about how the parents had taken advantage of
    contact initiated by the children in the past three years to blame them for
    destroying the family.

[6]

Having regard to the reasons for which Crown wardship was ordered and
    the onus on the parents under s. 59(2.1) of the
Child and Family Services
    Act
, R.S.O. 1990, c. C.11, the motion judge concluded that the parents also
    failed on the access issue and ordered no access.

[7]

In our view, on the record before him, the summary judgment appeal
    judges conclusion on access was fully justified.  The record indicated that
    none of the children had then expressed any desire to see their parents,
    although one of the children (Y.N.Y.) had proposed making a video to send to
    his parents.

[8]

That said, at the appeal hearing, this court was informed that at times
    the two eldest children had expressed a wish to have some contact with their
    parents, either by telephone or by the making of a video for them. Indeed, the eldest
    child, Y.N.Y., had made a video for his parents and it was given to them in
    court by the representative of the CCAS.

[9]

Counsel for the CCAS pointed out that the children are emotionally
    fragile.  All of them want the parents to accept responsibility for the harm
    they have caused.

[10]

In
    these circumstances, the court asked the appellants and counsel for the CCAS
    and the Office of the Childrens Lawyer to indicate how access could be
    compatible with the best interests of a particular child if that child wished
    contact with a parent. Counsel responded that if a child is desirous of such contact,
    and the childs therapist agreed that contact with the parent would be in the
    best interests of that child, the CCAS would be at liberty to arrange such
    contact.  It is anticipated that any such contact would proceed on the
    following basis:

·

The parent  would  write a letter to the relevant child saying
    the parent is sorry for any harm he or she may have caused the child;

·

Once this initial letter has been written, other letters may follow
    on the understanding that the tone of the letters are respectful and do not
    attempt to place any blame or guilt on the child for what has transpired;

·

If the child wishes, the child may make a video to be given to
    the parents;

·

The parent would engage in a mediated discussion with the childs
    therapist about the video that has been made.  For example, with respect to Y.N.Y,,
    the parent and therapist would talk about the video that Y.N.Y. made and about
    how he feels about what happened to him;

·

Provided the outcome of the discussion with the childs therapist
    is positive, a parent  may make a video to be given to the child once that
    video has been approved by the childs therapist ; and

·

Prior to any in-person supervised visit with a child, the parent
    would also engage in a therapeutic process aimed at implementing supervised
    reunification visits with the children.

[11]

If
    this process is implemented and successfully completed, the CCAS indicated it
    would be prepared to move to vary the no access order.

[12]

The
    appellants did not object to the above-noted features of a potential future
    parental access plan.

[13]

Accordingly,
    while we must also dismiss the appeal with respect to the issue of access on
    the basis of the existing record, we do so on the understanding that if the
    process outlined above takes place, the no access order in respect of parental
    access may be potentially varied.

Proposed Access to Maternal Grandmother

[14]

The
    summary judgment appeal judge declined to deal with a request by the Childrens
    Lawyers agent for access by the childrens maternal grandmother to the oldest
    child and possibly the second oldest child as well. The request was opposed by
    the CCAS at the time and there was no evidence as to how such access would be
    in the best interests of either child.  The summary judgment appeal judge noted
    that the CCAS had indicated that it would continue to try and arrange access to
    the grandmother, taking into account each childs wishes and the
    recommendations of his or her treating professionals.

[15]

Before
    this court, the CCAS advised that Y.N.Y. had written a letter to his maternal
    grandmother and was hoping for a reply. The childrens maternal grandmother was
    present in court and Y.N.Y.s letter was given to her. The CCAS and Childrens
    Lawyers agent are not opposed to the grandmother having contact with Y.N.Y. by
    writing to him.  Further, the court was informed that the CCAS no longer
    opposes a supervised visit by the maternal grandmother with Y.N.Y., provided he
    wishes to see her and provided further that the grandmother  agrees to meet
    with a bilingual CCAS worker a half hour ahead of the supervised visit to be
    briefed on how the visit should be conducted.

[16]

On
    the record before us, it is premature to conclude that court-ordered access by
    Y.N.Y. to his maternal grandmother is in Y.N.Y.s best interests.  However, there
    have been two developments since this issue was before the summary judgment appeal
    judge.  First, by writing a letter to his grandmother, Y.N.Y. has indicated
    that he wishes to have contact with her.  Second, the CCAS has now given qualified
    agreement to access by the maternal grandmother.

[17]

Accordingly,
    it appears to us that initial steps have now been taken to move towards potential
    access.  That said, on the record before us, no new court order is warranted or
    required at this time.

Alternate Plan of Care

[18]

Finally,
    we observe that the CCAS filed as fresh evidence a report dealing with an
    alternate proposed plan of care by the childrens relatives in France that was
    in the French language and that had not been translated. The CCAS offered no
    explanation for the failure to have this document properly translated and, in
    response to questions from the panel, indicated it could likely have had the
    document translated in two days. While the members of the panel were able to
    overcome this obstacle, we caution that in future the CCAS should obtain a
    certified translation of relevant documents in advance or risk having the
    appeal adjourned until that is done. Having to adjourn in order to have
    documents translated into the appropriate language is a hindrance to the due
    administration of justice and unnecessary delay is not in the best interests of
    the children whom the CCAS is mandated to protect.

[19]

The
    alternate plan of care proposes that the children move to France to be cared
    for by a maternal aunt and uncle.  The report of the French
Bureau de
    laide sociale à lenfance
, which was forwarded to International Social
    Services Canada, does not recommend this alternate plan of care, having regard
    to the lack of support the proposed care givers would offer to the children
    respecting their removal from parental care. The CCAS also opposes this
    alternate plan of care having regard, among other things, to the emotional
    attachment of the two youngest children to their present foster environment, as
    well as the differences in language and culture the children would encounter.
    We agree that the proposed alternate plan of care is not in the best interests
    of the children.

Disposition

[20]

For
    the reasons given, the appeal is dismissed.

K.M. Weiler J.A.

E.A. Cronk J.A.

Sarah Pepall J.A.


