



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: D.D. v. Children's Aid Society of Toronto, 2015
    ONCA 903

DATE: 20151221

DOCKET: C60836

Laskin, Pardu and Roberts JJ.A.

BETWEEN

D.D

Respondent in Main Action

(Appellant)

and

Childrens Aid Society of Toronto

Applicant in Main Action

(Respondent)

Natasha Razack, for the appellant

Anthony Macri, for the Childrens Aid Society of Toronto

Elizabeth McCarty, for the Office of the Childrens
    Lawyer

Heard: November 24, 2015

On appeal from the judgment of Justice Carolyn J. Horkins
    of the Superior Court of Justice, dated June 30, 2015, dismissing the appeal
    from the order of Justice Carole Curtis, dated December 17, 2014, of the
    Ontario Court of Justice, granting the Childrens Aid Societys summary
    judgment motion.

Pardu J.A.:

[1]

This is the second appeal from a Crown wardship, no access order, made
    on December 17, 2014. The mother, D.D., appeals the decision to uphold the
    Order denying access to her son S.S. Her appeal from the Crown wardship order
    was dismissed as abandoned.

[2]

The facts found by the motion judge and which are not in dispute are as
    follows. S.S. is now ten years old. He has been in the care of the Childrens
    Aid Society of Toronto (the Society) for over four years. He has not seen his
    mother since February, 2014. His stated wish, as asserted through his counsel,
    is to continue not to have contact with his mother. The Society takes the same
    position: namely, that there should be no access.

[3]

The mother, D.D., was born in Romania and came to Canada in 1995. She
    worked in the adult entertainment business and as a sex trade worker. Her son,
    S.S., was born August 15, 2005. The father was D.D.s client; they were not
    involved in a romantic relationship and the father currently has no contact
    with the child.

[4]

The child has been in the Society's care and custody since July 19, 2011
    when D.D. voluntarily placed him in care under a Temporary Care Agreement. She
    was experiencing mental health issues, including anxiety and some homicidal
    ideation, and there was a concern that she might harm herself or the child. The
    Temporary Care Agreement was extended to May 12, 2012 on consent.

[5]

After the childs admission into care, D.D. had phone access with him
    until April 2012 when the child asked that the phone calls cease. D.D.
    continued to have access visits with her son. In June 2012, the Society
    commenced a protection application. On December 17, 2012, the parties consented
    to a finding that the child was in need of protection pursuant to s.
    37(2)(b)(i) of the
Child and Family Services Act
, R.S.O. 1990,
    c. C.11 (the 
CFSA
). The child was made a Society ward for a
    period of four months with access at the Society's discretion. Access visits
    continued and S.S. expressed a desire to visit with his mother. However, as of
    April 2013, at the childs request, visits occurred only at the Societys
    office, and not at D.D.s home.

[6]

The Society observed positive interactions between D.D. and S.S.
    However, the child consistently responded negatively to the idea that he might
    be returned to his mother and stated explicitly that he did not wish to be
    returned to her. He also demonstrated certain troubling behaviour after some
    visits  soiling the bed, becoming unfocused and disruptive at school, and
    having difficulty sleeping.

[7]

A number of mental health professionals were involved to try and address
    the childs needs and identify the supports that would be required for
    reintegration with D.D. Dr. Fitzgerald assessed S.S.; he commented that the
    child was clear that he did not want to return to his mother's home, although
    he did want to continue access visits. Ms. Cowan-Levine, a psychotherapist,
    also indicated that S.S. was very consistent in his belief that it was not safe
    for him to go home. Another therapist, Ms. Mulligan, raised the possibility of
    doing a joint meeting with D.D. and S.S., but after S.S. responded negatively
    to this idea, she stated that she could not recommend proceeding with such
    treatment.

[8]

In or around December 2013, S.S. disclosed to Ms. Cowan-Levine that he
    was regularly hit by his mother, tied to a bed to have his mouth washed out with
    soap, and made to kneel in a corner for a long period of time. As a result, as
    of December 10, 2013, access was suspended while the police and Society
    investigated. On December 17, 2013, D.D. nevertheless visited S.S.s school and
    gave him Christmas presents (as well as a note with her contact information on
    it). This event apparently upset the child a great deal; he reported that he
    was scared his mother would take him away and that he did not feel safe. He
    reiterated that he only wished to have supervised visits with his mother at the
    Societys office.

[9]

After this investigation in December 2013, D.D.s access was resumed,
    but visits were again suspended after S.S. alleged he had been sexually abused
    with his mothers knowledge and while in her care. As a result, D.D. has not
    seen S.S. since February 18, 2014. No charges were laid in relation to the
    allegations or physical or sexual abuse. There was evidence from Ms. Cowan-Levine
    that the childs behaviour has improved since visits with his mother stopped
    and his last report card (as of the appeal judges decision) showed an A
    average. He expressed that he no longer wished to have access with his mother,
    supervised or not.

[10]

In
    February 2014, the Society brought an application to make S.S. a Crown ward in
    the care and custody of the Society without access. In its view, if D.D. were
    granted access, it would adversely affect the childs prospects for adoption.
    The Society then brought a motion for summary judgment. Prior to the summary
    judgment hearing, D.D. brought a motion for access in January 2014, but
    withdrew it in May 2014 after being told that it was against her sons wishes. In
    neither proceeding did she seek the return of S.S. to her care.

A.

The motion judges reasons

[11]

At
    the hearing before the motion judge, the appellant did not seek an order for
    specific access. She requested an order that was silent as to access so that if
    at some point her son wanted to see her, he would be able to do so.

[12]

After
    granting the Societys request to make S.S. a Crown ward, the motion judge
    correctly set forth the applicable test from section 59(2.1) of the
CFSA
for determining whether to grant access. The onus is on the person seeking
    access to a Crown ward to prove on the balance of probabilities that the
    relationship between the person and the child is meaningful to the child, the
    relationship between the person and the child is beneficial to the child, and
    that access will not impair the childs future opportunities for a permanent or
    stable placement.

[13]

She
    noted that there is a presumption against access to a Crown ward, and that
    access is the exception and not the rule in this context.

[14]

Referring
    to
Childrens Aid Society of Niagara v. M.J.
, [2004] and the section
    59(2.1) of the
CFSA
, she commented as follows:

In this decision the Court looked at the standard dictionary
    definitions: a beneficial relationship is one that is advantageous, a
    meaningful relationship is one that is significant. Even if there are some
    positive aspects to the relationship between the parent and the child that is
    not enough, it must be significantly advantageous to the child.

The section speaks of an existing relationship between the
    person seeking access and the child, not a future relationship. That is
    important because it precludes the Court from considering whether a parent
    might cure her parental shortcomings so as to create in time a relationship
    that is beneficial and meaningful to the child. This accords with common sense,
    for the child is not expected to wait while his mother learns how to be a
    responsible parent. The test focuses on the childs experience of the
    relationship, not the parents, in the assessment of whether it is beneficial
    and meaningful. The
Childrens Aid Society of Hamilton v. L.S.
, [2011]
    decision in the Superior Court.

[15]

The
    motion judge reviewed the history of the mothers access with her son, and the
    disturbances to his emotional well-being that resulted. There was no ongoing
    access and the motion judge concluded that the results of a trial on the issue
    of access would be a foregone conclusion. She then ordered Crown wardship with
    no access.

[16]

The
    appeal judge agreed with the motion judges conclusions.

B.

D.D.s position ON THIS APPEAL

[17]

D.D.
    submits that the appeal judge erred in failing to identify reversible errors
    made by the motion judge.

[18]

First,
    she submits that the motion judge erred by not considering how the interruption
    of the parent-child relationship, which was instigated by the Society due to
    unproven allegations of sexual abuse in February 2014, affected the beneficial
    and meaningful bond between her and her son.

[19]

Second,
    D.D. contends that the motion judge erred in not considering that S.S.
    continued to request access to D.D. up to March 2014. Courts can consider
    granting access through cards or letters, as opposed to in-person visits, which
    has been recognized as beneficial to the child insofar as it allows the child
    to maintain some connection to the biological parent.

[20]

Third,
    she argues that it was an error not to recognize the positive steps D.D. has
    taken to improve her parenting skills after her mental health issues were
    addressed, to seek out better employment opportunities, and to acquire suitable
    housing for her child.

[21]

Lastly,
    D.D. submits that the motion judge gave too much weight to hearsay evidence of
    professionals, and to the childs report of abuse. On March 3, 2014, S.S.
    stated that his mother bribed him to have sexual acts with her clients. D.D.s
    response to the Society was that the child was not telling the truth. He elaborated
    upon this on March 14, 2014 in an interview with a detective at the Societys
    office:

a. [S.S.] disclosed that when he was in his mothers care that
    one day a man come into their home. He stated that the apartment door was
    unlocked and the man came in. He stated that the man came to his room as he
    heard the door of his room opening. He got scared and went under the bed. He
    said that he was shivering, nervous and scared. He saw the man through the
    crack under his bed. He stated that the man told him to get up and come with
    him.

b. He started following the man out of his room but he stated
    that when he got out of his room he ran to his moms room, woke her up and told
    her that there was a man in the apartment. His mom told him to go back and do
    whatever the man told him to do. She told him if he did then he would get
    cars/toys. He said he got nervous but went back into the living room where the
    man was.

c. The man took [off] his pants, he was not wearing underwear
    and he told [S.S.] to lick and touch his private part. [S.S.] stated that he
    licked him, and then he touched the man with his finger and then ran to the
    washroom to wash his hands because he did not want germs. Lori asked how it
    felt and he stated it felt a little hard. [S.S.] said that he washed the
    germs off his hands because he felt the yuckiness on his hand. He stated that
    his hand felt kinda greasy.

d. Lori confirmed with [S.S.] several times that his mom had
    told him that he needed to do whatever the man said and he would get toys.
    [S.S.] said that his mom did not follow through giving him the toys, however,
    but he stated that he thinks that he knew that she was lying and knew that
    she would never give him the toys.

e. [S.S.] said that when his mom told him to go and do whatever
    the man told him to do he agreed but he thought that the man would make him
    kneel on his knees like how his mom would do when she would punish him.

f. [S.S.] knew the time of the day this occurred and stated it
    was 11:29 pm, because when he was walking out of the room he clock changed from
    11:28 pm to 11:29 pm.

g. The man also told him to take his pants off and lay down.
    [S.S.] stated that he had his underwear on and that the man just looked at him
    and stared at the clock then left.

h. [S.S.] stated that the man was black, in a black suit, black
    sweater and long sleeve black shirt, and that his hair was darkish brown. He
    stated further that the man had a scratch on his nose and pimple on his face.
    He stated that his eyes were dark brown, super dark brown, and almost looked
    weird.

i. [S.S.] stated he didnt know the mans name.

j. [S.S.] stated that when the man left [S.S.] locked the door
    and went back to bed.

k. The next morning, he said that it was just as normal, he did
    not say anything to his mom. When asked why he did not say anything to her, he
    said, because she already knew that the man was there because he told her.

[22]

At
    the same time the child reported comments made by his mother during an access
    visit:

[S.S.] also disclosed that during [an] access visit at the
    Society office that when the worker went to use the washroom his mother
    whispered in his ears that she is going to get a cord, wrap it around her neck
    and hang herself. He stated that it happened in access room 7. He stated that
    he didnt believe her because he didnt think that she really wanted to hurt
    herself. She told him to keep it a secret. This incident took place before the
    first interview meeting with Lori.

[23]

The
    appellants response to the Society was that her son was not telling the truth.

[24]

The
    childs therapist reported:

[S.S.] has spoken consistently of the turmoil inside of him,
    fueled by his enormous anxiety in the presence of his mother, and the
    containment of the many details surrounding his sexual abuse. Sleep
    disturbance, inability to concentrate, and some increasing non-compliance were
    behavioural indicators of the turmoil in [S.S.] as he struggled with thoughts
    of the past and uncertainties of the future.  As visits with [S.S.]s mother
    reduced, and then access, even supervised access was stopped, the emotional
    tornado inside [S.S.] diminished.  [S.S.]s fears of retaliation from his
    mother, even without access, continues; e.g. Finding him at school at recess
    (which did occur), hearing details in court, learning where he currently
    resides, all becoming so concerning that arrangements were made for [S.S.] to
    have only indoor recess at school.

[25]

In
    light of these errors, the appellant submits that there was a triable issue as to
    whether D.D. should be given access to S.S.

C.

THe POSITION OF THE SOCIETY AND THE OCL ON APPEAL

[26]

Both
    the Society and the OCL take the position on appeal that the appeal should be
    dismissed. The order of Crown wardship without access should be upheld to allow
    S.S. to move forward towards a permanent placement. Given the childs
    consistent fear and anxiety over any contact with his mother, they take the
    position that there was no triable issue as to whether any access order would
    have been beneficial and meaningful to him.

D.

Analysis

(1)

Standard of Review

[27]

In
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, the Supreme
    Court of Canada noted at para. 13 the high standard of review for cases
    involving child custody:

Finality is a significant consideration in child custody cases,
    maybe more so than in support cases, and reinforces deference to the trial
    judge's decision an appellate court may only intervene in the decision of a
    trial judge if he or she erred in law or made a material error in the
    appreciation of the facts.

[28]

In
    that case, the Supreme Court also adopted for child custody appeals its
    comments in
Hickey v. Hickey
, [1999] 2 S.C.R. 518 at para. 12 that an
    appeal court is not entitled to intervene, simply because it would have made
    a different decision or balanced the factors differently.

[29]

This
    court has noted that deference is particularly compelling in child protection
    cases. As Justice Gillese noted at para. 19 of
Childrens Aid Society of
    Ottawa v. S.N.-D.
, 2012 ONCA 590, This court owes deference to factual
    determinations, a consideration that is particularly compelling in child
    protection proceedings.

[30]

See
    also
Children's Aid Society of Toronto v. V. L.,
2012 ONCA 890 at
    para. 16: the degree of deference owed to the trial judge is particularly
    high in child protection proceedings.

(2)

Focus on the Child

[31]

Section
    59(2.1) of the
CFSA
clearly places the focus of the test for access on
    the childs perspective.

[32]

The
    mothers arguments that the Society was responsible for interruptions in her
    contact with S.S., that she did made requests for access, and that her
    parenting skills had improved, focus on the
reasons
for the current
    state of affairs and on the mothers efforts. They do not speak directly to
    whether access would be meaningful and beneficial to the child.

[33]

Accordingly,
    the motion judge was correct to focus on the childs present best interests.

(3)

Hearsay Evidence

[34]

Contrary
    to the appellants position, not all hearsay evidence is inadmissible. The
    question is whether the motion judge relied inappropriately on hearsay
    evidence. In my view, she did not.

[35]

The
Family Law Rules
expressly contemplate the use of hearsay evidence on
    a motion for summary judgement. Section 16(5) provides that if a partys
    evidence is not from a person who has personal knowledge of the facts in
    dispute, the court may draw conclusions unfavourable to the party.

[36]

Further,
    s. 50 of the
CFSA
expressly contemplates the admission of written
    reports of therapists and other persons involved in the childs care:

Despite anything in the
Evidence Act
, in any
    proceeding under this Part [child protection],

(a) the court may consider the past conduct of a
    person toward any child if that person is caring for or has access to or may
    care for or have access to a child who is the subject of the proceeding; and

b) any oral or written statement or report that
    the court considers relevant to the proceeding, including a transcript, exhibit
    or finding or the reasons for a decision in an earlier civil or criminal
    proceeding, is admissible into evidence.

[37]

Evidence
    about a childs expressed views is often presented through persons to whom the
    child has communicated. Section 39(5) of the
CFSA
provides that a
    child under 12 is not entitled to attend court unless the court is satisfied
    the child can understand the proceedings and will not suffer emotional harm.

[38]

Statements
    about the childs views and preferences set out in affidavits by Childrens Aid
    Society workers affidavits are admissible:
Strobridge v. Strobridge
(1992), 10 O.R. (3d) 540 (ONSC).

[39]

Statements
    that show the childs state of mind are also admissible as a general exception
    to the hearsay rule where they are admitted not for their truth but for the
    fact that they were said: Paciocco and Stuesser,
The Law of Evidence
,
    5th Ed. at p.176. Here, many of the complained-of hearsay statements were considered
    by the motion judge in this context.

[40]

In
    addition, while in some cases, admission of hearsay might be unfair, here the
    mother does not point to any particular unfairness resulting from the admission
    of the evidence presented on the motion. It does not appear that she made any
    objection to that evidence at the hearing or asked to cross examine the
    deponents of the affidavits.

(4)

Conclusions

[41]

Here,
    the appeal judge did not err in determining that the motion judge appropriately
    focused on the present best interests of the child and did not over-emphasize
    the hearsay reports of what the child and his therapist said. Essentially the
    motion judge concluded that the mother did not have an ongoing relationship
    with the child and that access should not be granted on the basis of the future
    hope of a beneficial relationship. Given the childs unwillingness to have
    contact with his mother, the motion judge did not err in concluding that there
    was no triable issue as to whether ordering access to the mother would be
    meaningful and beneficial for the child.

[42]

As
    this court pointed out in
Childrens Aid Society of Niagara Region v. C.J.
,
    2015 ONCA 695:

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.

[43]

I
    am not satisfied that the mothers present proposal, to send birthday and Christmas
    cards to the child would bring a significant positive advantage to the child.

[44]

I
    recognize that the childs expressed wishes to have no contact with his mother
    have lasted about 21 months and that he might change his mind. If that happens,
    s. 59(4) of the
CFSA
allows the Society to facilitate contact between
    the child and his mother:

If a society believes that contact or communication
    between a person and a Crown ward is in the best interests of the Crown ward
    and no openness order under Part VII or access order is in effect with respect
    to the person and the Crown ward, the society may permit contact or
    communication between the person and the Crown ward.

[45]

This
    would allow the mother to send cards intended for her son to the Society, which
    could assess whether receipt of these communications would be beneficial for
    the child. The mother has not attempted any such communications in the last 21
    months that there has been no access.

[46]

In
    addition, at any time before an adoption order is made, the Society may apply
    for an openness order allowing a parent access to a child, despite the Crown
    wardship. (Section 145.1 (1)
CFSA
).

[47]

A
    court may make such an order if satisfied that:

(a) the openness order is in the best interests of
    the child;

(b) the openness order will permit the continuation
    of a relationship with a person that is beneficial and meaningful to the child
    (s. 145.1.2(6)
CFSA
)

[48]

If
    the child is placed for adoption, any order made by the motion judge for access
    would terminate. If the mother had been granted access, she would be entitled
    to notice of the placement for adoption, that the access order terminated upon
    such placement, and that she could apply for an openness order within 30 days. This
    would mean re-litigation of the same issues that were before the motion judge.
    Like s. 59(2.1), s. 145.1.2(6) contemplates an
existing
relationship
    that is beneficial and meaningful to the child.

[49]

The
    prospect of further litigation may deter prospective adoptive parents. As
    pointed out in
Catholic Childrens Aid Society of Toronto v. L.D.E
,
    2012 ONCJ 530, there are many ways in which an outstanding openness application
    could derail an adoption by prospective adoptive parents:

a. They would be facing further litigation;

b. They would not know the result of such litigation;

c. They would not know what form an openness order might take;

d. If an openness application is brought, the adoption will be
    delayed.

[50]

The
    child has not seen his mother for over 21 months. That is a very long time in
    the life of this child. The motion judge did not err in concluding that the
    mother had not met the test in s. 59(2.1) to establish that her existing
    relationship with the child was beneficial and meaningful to the child

[51]

I
    also note that fresh evidence filed on the appeal demonstrates that the child
    is very worried about his present limbo. He continues in therapy. He is worried
    he will be too old to be adopted. When asked what was on his Christmas list he
    responded, Nothing you dont know about. We just talked about it: adoption, a computer
    and a mom and dad of my own to love me. This child has now been in care for four
    years. A secure placement for adoption, as soon as possible, is essential to
    advance his best interests.

[52]

Accordingly,
    the appeal from the refusal of the motion judge to grant access or order a
    trial of the issue of access is dismissed.

Released: (GP) December 21, 2015

G. Pardu J.A.

I agree John Laskin
    J.A.

I agree L.B. Roberts
    J.A.


