



WARNING

Prohibitions under the
Child, Youth and
    Family Services Act
, 2017, S.O. 2017, c.14, Sched. 1 apply to this
    decision:

Prohibition re identifying child

87(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.

Prohibition re identifying person charged

87(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.

Transcript

87(10)
No
    person except a party or a partys lawyer shall be given a copy of a transcript
    of the hearing, unless the court orders otherwise.



Offences re publication

142 (3)
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: Catholic Childrens Aid Society of
    Toronto v. V.R., 2021 ONCA 209

DATE: 20210407

DOCKET: C68445

Fairburn A.C.J.O., van Rensburg
    and Huscroft JJ.A.

BETWEEN

The Catholic Childrens Aid
    Society of Toronto

Applicant (Respondent)

and

V.R.

Respondent (Appellant)

David Miller, for the appellant

Chris Andrikakis, for the respondent

Heard by video conference:
    March 26, 2021

On appeal from the order of Justice Carolyn
    J. Horkins of the Superior Court of Justice, dated June 9, 2020, with reasons
    reported at 2020 ONSC 3508, allowing in part an appeal from the order of
    Justice Manjusha Pawagi of the Ontario Court of Justice, dated April 5, 2019.

REASONS FOR DECISION


[1]

This is a second appeal from a decision finding three-year-old
    D.R. in need of protection and placing her in the Societys extended care with
    a view to adoption by her foster parents and with no order for access. The
    appeal judge allowed the mothers appeal only in respect of the access order,
    finding that the trial judge erred in law by applying the wrong test. The
    appeal judge proceeded to make the access decision afresh but reached the same
    conclusion and refused access.

[2]

The mother appealed from the entire order below
    but now appeals only the no access portion of that order. She requests a
    rehearing of the access issue or, in the alternative, an order for virtual
    access to D.R. at least six times each year as well as recent pictures of the
    child at least four times each year. She specifically asks for both mother and
    child to be access holders and access recipients.

[3]

D.R.s father did not participate in either the
    trial or the appeal below and did not participate in this appeal. He was
    deported to Portugal in 2018. The appellant was deported to Portugal prior to
    this appeal being heard.

[4]

The appeal is dismissed for the reasons that
    follow.

Background

[5]

D.R. was born in October 2017. She was seriously
    injured on two occasions in the first few months of her life. The first injury
    occurred in November 2017, when she suffered a spiral fracture of her upper
    arm. Dr. Shouldice, head of Paediatric Medicine at the Hospital for Sick
    Children and overseer of the Suspected Child Abuse and Neglect unit, concluded
    that this injury was consistent with an explanation given by the father one
    week after the injury was sustained. The second serious injury occurred
    February 2018, when D.R. was four months old and in the temporary custody of
    her parents. She was taken to the hospital after she suffered seizures, was not
    breathing well, and her eyes were rolled backwards. Her injuries included
    subdural haemorrhages and retinal haemorrhages. Dr. Shouldice concluded that
    the most likely cause of the injuries was blunt force trauma, inertial forces,
    or a combination of the two.

[6]

The trial judge rejected the appellants innocent
    explanations for the injuries. She found that D.R. was injured in the care of
    her parents and that her injuries were intentionally inflicted by the mother and/or
    father. The trial judge found that D.R. was a child in need of protection and
    placed her in the extended care of the Society with no parental access.

[7]

The appellant mother appealed on several grounds
    but her appeal was dismissed, save in one respect. The appeal judge found that
    the trial judge wrongly put the onus on the appellant to demonstrate that
    access would be in the childs best interests. Rather than remit the matter,
    the appeal judge assumed jurisdiction to determine the access question. The appeal
    judge concluded that access was not in the best interests of the child and made
    the no access order that is the subject of this appeal.

Discussion

[8]

The appellant submits that on any reasonable
    application of the best interests analysis on the evidence in this case, an
    access order should result. The appellant says that she has demonstrated normal,
    healthy parenting skills and that D.R. enjoys and has benefited from visits
    with her. The appellant is happy that the foster parents are willing to adopt
    D.R. and access would not impair D.R.s opportunities for adoption. Access
    would allow D.R. a connection to her biological family, Portuguese roots,
    culture and language. The appellant says that there is no risk of harm through the
    requested access in the form of video calls, letters, cards, and gifts.

[9]

This submission is, in essence, an invitation to
    retry the matter and to substitute this courts decision. That is not our
    function on appeal. The appeal judges decision to deny access is entitled to
    deference from this court, absent a palpable and overriding error. We see no
    error that would allow this court to intervene.

[10]

The appeal judge conducted a best interests
    analysis, assessing whether the relationship was beneficial and meaningful to
    the child in accordance with ss. 105(5) and (6) of the
Child, Youth and Family
    Services Act
, 2017, S.O. 2017, c. 14,
    Sched. 1
, and the criteria set out in s. 74(3).

[11]

D.R.s age precluded the ascertainment of her
    wishes, and the appeal judge noted that she is not First Nations, Inuk, or
    Métis. The appeal judge went on to consider the relevant circumstances under s.
    74(3)(c) based on the findings of the trial judge.

[12]

The most significant of these was the degree of
    risk that led to the protection finding, given the trial judges finding that one
    or other of the parents had intentionally inflicted the injuries on the child
    or failed to protect the child from the other caregiver. The appeal judge also
    noted that the seizure episodes occurred more than two hours before the child
    arrived at the hospital and that the medical evidence was that the delay placed
    the child at a higher risk for low oxygen damage to the brainat increased
    risk for developmental delay, long term neurological problems and learning
    difficulties.

[13]

The appeal judge noted that the child has
    benefited from the continuity of the care she has received and was developing
    extremely well in the care of her foster parents. The appeal judges key
    findings are set out in paras. 151-2, in which she stated:

The child has not been in her mothers care
    since she was four months old. While the mothers access visits with the child
    have gone well,
there is no factual
    foundation to find that their relationship is beneficial and meaningful to the
    child
. There is no evidence as to how the mother might provide
    for the childs needs. The mother is currently the subject of a deportation
    order and, if implemented, she will be returned to Portugal.

In summary, I find that it is not in the
    childs best interests to order that the mother have access. I make no order as
    to access. [Emphasis added.]

[14]

The thrust of the appeal judges decision is
    clear and reveals no error.  Although the reasons on the specific issue of
    access could have been more detailed, they leave no doubt as to the
    reasonableness of the decision.

[15]

This is a case in which the appellant has had
    only a very brief relationship with D.R., having cared for her for two
    non-consecutive months. D.R. has spent most of her life in her foster parents
    care and has been thriving there. During the time she was cared for by the
    appellant, D.R. was seriously injured on two occasions and the trial judge
    found that the injuries incurred on the second occasion were inflicted
    intentionally by either or both parents. The appellants explanation for how these
    injuries occurred was rejected by the trial judge.

[16]

The appeal judges finding that the most significant
    circumstance is the degree of risk that led to the protection finding is
    supported by the evidence and is reasonable. So too is the appeal judges
    finding that there is no factual foundation supporting a finding that the
    relationship is beneficial and meaningful to D.R., regardless of how well the
    access visits had gone at the time she made her decision. In that regard, the
    trial judge noted the foster fathers evidence that D.R. was sometimes upset
    after access visits as well as the access workers evidence that although the access
    visits went well, D.R. left without a visible reaction to parting from the
    appellant.

[17]

The appeal judges decision is fortified by the
    fresh evidence proffered by the Society. The appellant does not oppose the admission
    of this evidence  an affidavit from D.R.s foster father  and in our view it
    is properly admitted as it is directly relevant to the childs best interests.

[18]

D.R. has been in the care of the deponent and
    his wife since February 2018. The appellant has not had in-person access with
    D.R. since supervised visits ended in March 2020. Since that time, the
    appellant has maintained contact with D.R. by means of brief, biweekly video
    call visits that have been facilitated by the foster parents. Initially the
    video calls lasted 30-40 minutes, but recently that has dropped to 15-20
    minutes. He states that D.R. seems a bit tense during the calls and needs
    frequent reassuring following the calls.

[19]

In summary, there is no basis to interfere with the
    appeal judges no access order.

[20]

The appeal is dismissed. No costs were requested
    and none are ordered.

Fairburn
    A.C.J.O.

K. van
    Rensburg J.A.

Grant Huscroft
    J.A.


