



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. P.M., 2015
    ONCA 695

DATE: 20151019

DOCKET: C60392

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Childrens Aid Society of Toronto

Respondent (Applicant)

and

P.M.

Appellant (Respondent)

Lance Carey Talbot, for the appellant (respondent)

Erin Rose, for the respondent (applicant)

Heard:  October 5, 2015

On appeal from the judgment of Justice Penny of the Superior
    Court of Justice, dated March 31, 2015.

By the Court:

Overview

[1]

The appellants daughter  born
    November 19, 2011  is now almost four years old. She has been the subject of
    child protection proceedings almost since she was born. She has been in the
    continuous care and custody of The Childrens Aid Society of Toronto (the CAS)
    since she was just under five months old, and has resided with her foster
    mother  and proposed adoptive parent  throughout that time.

[2]

The finding that the appellants
    daughter was a child in need of protection was made on an uncontested basis on
    June 13, 2012. A status review was held when the child was two years old. On
    April 29, 2014, the trial judge made the child a Crown ward, for the purpose of
    adoption, without parental access. The appellant appealed that decision to the
    Superior Court of Justice, arguing that the trial judge made palpable and
    overriding errors in determining the facts on which he relied in making his
    order.

[3]

On March 31, 2015, the appeal
    judge dismissed the appeal, providing detailed reasons addressing each of the
    errors allegedly made by the trial judge. The appellant now appeals further to
    this court. He renews the arguments rejected by the appeal judge. He also
    brings a motion for leave to adduce fresh evidence on appeal and argues that this
    evidence compels a different conclusion than that arrived at by the trial
    judge. He seeks a custody order in his favour or an order of Crown wardship
    with access.

[4]

We agree with the appeal judge
    that the trial judge made no palpable and overriding errors in determining the
    facts. The fresh evidence does not affect the disposition of the appeal. It continues
    to be in the childs best interests to remain a Crown ward with no access and
    to be adopted by her foster mother.  Accordingly, we dismiss the appeal.

Background

[5]

Some background provides the necessary
    context.

[6]

The childs mother fraudulently impersonated
    a nurse on multiple occasions and the childs father fronted the employment
    agency that hired her out to work as an unqualified nurse. The child was born while
    the mother was incarcerated for her fraudulent activity. The appellant cared
    for the child until she was just under five months of age when he too was
    incarcerated for his role in the fraud.

[7]

While it appeared to the CAS that
    the appellant was able to care appropriately for the child during that period,
    the CAS was concerned that the mother posed a risk to the child as a result of
    her history of unstable mental health, a pattern of failure to attend to the
    medical needs of her children, her lack of cooperation with the CAS and the
    fact that she was serving a substantial custodial sentence. As a result, the
    Supervision Order placing the child with the appellant included conditions
    relating to the mother and her access to the child, and the appellants
    co-operation with the CAS.

[8]

The trial judge found that the
    appellant breached those conditions and was dishonest with the CAS.

[9]

When the appellant was
    incarcerated for his role in the fraud, there was no one to care for the child.
    She was made a CAS ward and placed in the care of her foster mother.

[10]

In March 2013, the appellant was
    released on probation and began exercising access to the child. He opposed the
    Crown wardship order sought by the CAS and, as indicated above, the matter
    proceeded first to trial and was then unsuccessfully appealed.

[11]

The appellants probation order
    prohibited any contact with the mother.

Alleged Palpable and Overriding Errors

[12]

The appeal judges thorough
    reasons were responsive to the grounds of appeal raised by the appellant. As we
    have indicated, we agree with the appeal judge that the trial judge did not
    make any of the alleged palpable and overriding errors. It is unnecessary for
    us to repeat the appeal judges detailed analysis.

The Proposed Fresh Evidence

[13]

The appellant submits that the
    proposed fresh evidence compels this court to order that he regain custody of
    the child for the following reasons: (a) it dispels the trial judges concern
    about the impact of the appellants and the mothers criminal conduct on the
    safety of the child: time has passed and the appellant and the mother are attempting
    to rebuild a new life together; (b) it addresses the trial judges concern
    regarding his unusual degree of social isolation; and (c) his Plan of Care
    addresses the needs of the child.

[14]

The appellant further submits that
    if custody is not ordered in his favour, the fact  not disclosed at trial 
    that the childs mother is Jewish weighs in favour of an access order. He
    argues that, because the child is biracial, as well as half-Jewish, providing
    access to the appellant would permit the child to appreciate her unique
    cultural heritage.

[15]

It is therefore helpful to
    consider what the fresh evidence discloses.

[16]

The evidence reveals that the
    appellant breached his probation order by continuing an intimate relationship
    with the childs mother. This relationship resulted in the birth of another
    child (P) in early 2015. The appeal judge was not aware of this fact.

[17]

Following Ps birth, the mother
    voluntarily placed P into the CAS care and there is an ongoing proceeding in respect
    of her custody. The appellant is currently exercising access to P for one hour
    per week. The mother has, separately, been exercising access to P. The
    appellant deposes that he and the mother plan to reunite and raise P together
    as a family once his probation order prohibiting contact with the mother
    expires on February 4, 2016.
[1]
He wants the child who is the subject of these proceedings to join them.

[18]

The appellant provides evidence
    that he has recently reached out to a community Family Support Organization that
    can provide help and support with parenting; has identified an 8-week
    therapeutic play group that can help the child if she is returned to his care;
    and, in the past month, has gone to a psychologist for an assessment. He says
    he is committed to working with a psychologist to ensure that his parenting of
    the child is strong.

[19]

The fresh evidence also includes
    an affidavit from the mother. She deposes that she has been working on
    addressing many of the issues identified by the CAS and hopes to be slowly
    integrated into the childs life if the child is returned to the appellants
    care. The mother also disclosed that she is Jewish and would raise the child in
    that faith.

[20]

Finally, the fresh evidence
    includes a Plan of Care for the child, prepared by the appellant.

Admission and Effect of Fresh Evidence

[21]

Section 69(6) of the
Child and
    Family Services Act
, R.S.O. 1990, c. C.11 (
CFSA
) sets out that the
    court may receive further evidence relating to events that took place after the
    decision being appealed from.

[22]

Fresh evidence should be admitted in
    child protection proceedings if: (a) it could not have been adduced before; (b)
    it is highly relevant in that it enables the court to make determinations on an
    accurate picture of the situation at hand; (c) it is potentially decisive as to
    the childs best interests; (d) it is credible; (e) it is uncontroverted; and
    (f) it bridges the gap between the evidence submitted in prior hearings and the
    appeal:
Catholic Childrens Aid Society of Metropolitan Toronto v. M. (C.)
,
    [1994] 2 S.C.R. 165, at p. 190.

[23]

A flexible standard should be
    adopted for the admission of fresh evidence in family law cases
involving
    children in circumstances where accurate and up-to-date information concerning
    the best interests of the child, when considered with the evidence adduced at
    trial, might reasonably affect the outcome of the appeal
:
Childrens Aid Society of Oxford Country v. W.T.C.
, 2013 ONCA
    491,
308 O.A.C. 246,
at para. 43.

[24]

Despite this flexible standard, we
    have reservations about the admissibility of the fresh evidence. It largely
    consists of affidavits of the appellant and the mother. Both have been
    convicted of fraud and demonstrated an ongoing pattern of deception and
    non-compliance with court orders. We have concerns about the credibility and
    reliability of parts of the fresh evidence.
[2]
Furthermore, some of the evidence could have been adduced before: the religious
    heritage of the child could have been raised at trial and the birth of P. could
    have been disclosed to the appeal judge. However, portions of it  including
    the evidence of non-compliance with the probation order and the birth of P 
    are relevant and uncontroverted.

[25]

In any event, the fresh evidence
    falls far short of warranting interference with the trial judges conclusion
    that Crown wardship without access is in the best interests of the child.

[26]

In determining whether Crown
    wardship was appropriate, the trial judge applied the test set out in
Catholic
    Childrens Aid Society of Metropolitan Toronto v. M. (C.)
and recently confirmed by this
court in
Childrens
    Aid Society of Oxford County v. W.T.C.
This test requires a court to assess
    whether the child continues to be in need of protection and, if so, which of
    the available range of orders is in the childs best interests. As the appeal
    judge noted, the appellants relationship with the mother lied at the heart of
    the CAS and the trial judges concerns about returning the child to the
    appellants care. That concern was not limited to the fact that, as a result of
    the appellant and the mother being partners in crime, the child was left
    without a responsible adult to care for her. The fresh evidence reinforces the
    appellants intention to reunite with the mother and does not dispel the very
    serious concerns that the CAS and the trial judge expressed with respect to the
    mother.

[27]

Further, despite the proposed Plan
    of Care and the efforts recounted in the fresh evidence, we are not persuaded
    that the appellant has the necessary support to raise the child. The Plan of
    Care is not compelling. It contemplates that the appellant would continue to
    work and would immediately send the freshly uprooted child to a full-time
    daycare. He names someone as a back-up caregiver to provide support to him
    until he can reunite with the mother, but no meaningful details are provided
    and there is no corroboration from the named individual. The appellant is only
    now committing to work with a psychologist and the mothers professed steps to
    address the CAS concerns are also very recent. As the trial judge commented,
    multiple issues of parental dysfunction cannot quickly change.

[28]

Nor does the fresh evidence
    warrant interfering with the trial judges decision to deny an access order in
    favour of the appellant. There is a presumption against access where a child
    has been made a Crown ward. The party seeking access must rebut that
    presumption by satisfying both elements of s. 59(2.1) of the
CFSA
: he
    must show that his relationship with the child is beneficial and meaningful to
    the child and that the ordered access will not impair the childs future opportunities
    for adoption.

[29]

In
    order to satisfy the first requirement, the party seeking access must prove, on
    a balance of probabilities, that his existing relationship with the child
    brings a significant, positive advantage to the child. It is not sufficient
    that there are some positive aspects to the relationship:
Childrens Aid
    Society of Niagara Region v. C. (J.)
(2007), 281 D.L.R. (4th) 328 (Ont.
    Div. Ct.), at para. 29
.
At trial, the
    appellant described his relationship with the child as follows: [s]hes very
    comfortable with me. But shes not attached to me, Im aware of that. The
    trial judge found that the appellant had not established much more than a
    friendly relationship with the child and that there was no evidence in this
    case capable of meeting the meaningful and beneficial standard. Moreover, the
    trial judge concluded that the appellant had not met his onus under the second
    branch of s. 59(2.1) to establish that access would not impair the childs
    opportunity for adoption.

[30]

The appeal judge found that the
    evidence from continuing post-trial access visits did not disclose any dramatic
    development in the appellants relationship with the child that warranted
    reconsideration of the trial judges conclusion regarding that relationship.
    The appeal judge also agreed that the appellant had not demonstrated that his
    continued access would not prejudice the possibility of adoption.

[31]

The fresh evidence adduced by the
    appellant does not provide any further proof of a meaningful and beneficial
    relationship between him and the child, as required by s. 59(2.1) of the
CFSA
.
    Furthermore, the fresh evidence does not include proof that continued access
    would not prejudice the possibility of adoption.

[32]

The child should not be left in
    limbo. She is nearly four and her emotional ties are to her foster mother. The risk
    to the child of a disruption of her secure and stable relationship with her
    foster mother and the permanency it affords is obvious. It remains in the
    childs best interests to be a Crown ward without continuing access by the
    appellant.

[33]

The appeal is accordingly
    dismissed.

Released:  AH  OCT 19 2015

Alexandra Hoy A.C.J.O.

K.M. Weiler J.A.

G. Pardu J.A.





[1]
The appeal judge indicated that the restriction expires in April, 2016.



[2]
We note that the affidavit filed by the mother  who is Kenyan  in support of
    her motion for an extension of time to file a notice of appeal of the decision
    of the Superior Court of Justice appeal judge disclosed both that she is
    currently on bail from an immigration hold and that she received an unfavourable
    parenting capacity assessment in June, 2015 (albeit one that the mother
    contests). These material facts were not disclosed in the proposed fresh
    evidence.


