



WARNING

THIS IS AN APPEAL UNDER THE

a.

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: K.F. v. Family and Children's Services of the
    Waterloo Region, 2017 ONCA 573

DATE: 20170705

DOCKET: C63291

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

K.F. and D.T.

Appellants

and

Family and Childrens Services of Kitchener
    Waterloo

Respondents

Gloria Ichim, for
    the appellants

Jeffrey Boich, for the respondents

Heard: June 29, 2017

On appeal from the order of Justice G.A. Campbell of the Superior
    Court of Justice, dated January 3, 2017, dismissing and appeal from the order
    of Justice P.J. Borghesan of the Ontario Court of Justice dated December 1,
    2015.

REASONS FOR DECISION

[1]

This is an appeal from an order of a Superior Court judge dismissing an
    appeal from an order of the Ontario Court of Justice making an order of Crown
    wardship with no access by either parent. The child was apprehended at the age
    of eight weeks at the same time as the apprehension of three of the appellants
    other children. The appellant has a long-standing history with the respondent.
    The immediate reason for the apprehension was that the older children expressed
    a fear of violence by the appellants then partner, the father of the child who
    is the subject of this appeal. The child has now been in the custody of
    prospective adoptive parents for approximately four years.

[2]

In oral submissions, counsel for the appellant effectively abandoned the
    appeal from the order of Crown wardship. We add that after careful review of
    the matter, including the written arguments made in the appellants factum, we
    have concluded that there was no error on the part of the trial judge or on the
    part of the Superior Court Appeal Judge that would justify this Court in
    disturbing the order of Crown wardship.

[3]

Accordingly, we are left with the issue of access.

A.

Fresh evidence

[4]

Fresh evidence in child protection matters is contemplated by the
Child and Family Services Act
,
R.S.O. 1990, c. C.11
,
    s. 69(6). The test for admission is set out in
Catholic Childrens Aid
    Society of Metropolitan Toronto v. C.
M.
,
[1994] 2 S.C.R. 165 at
    190
:

(a)

could the evidence
    have been previously adduced;

(b)

is the evidence
    highly relevant;

(c)

is the evidence
    potentially decisive to a best interest determination; and

(d)

is the evidence
    credible.

[5]

The respondent seeks to introduce the affidavit of a CAS services worker
    providing up to date information on the circumstances of the child. This is the
    type of evidence contemplated by s. 69(6) (see
Children's Aid Society of
    Owen Sound v. R.D
(2003),
44 RFL (5th) 43;

178 OAC 69 at paras 13 and 14)
and we
    admit it.

[6]

The appellant also seeks to introduce fresh evidence.

[7]

As the CAS fresh evidence relates the circumstances of the appellants
    access visits, in fairness, it is appropriate for us to admit the video
    recordings of the access visits tendered by the appellant.

[8]

The affidavit of Dr. Kathy Keefe is more problematic.. The appellant was
    being counselled by Dr. Keefe since January 2016 yet no notice of the
    appellants intention to file this affidavit was provided until less than two
    weeks prior to the hearing of the appeal. The appellant fails to provide an
    adequate foundation to assess Dr. Keefes expertise with respect to the general
    view she expresses regarding open adoption. However, with these qualifications
    in mind we have reviewed Dr. Keefes affidavit and explain below why it does
    not persuade us that this appeal must be allowed.

B.

Access

[9]

Section 59(2.1) provides that when a Crown wardship order is made, no
    order of access shall be made unless (a) the relationship between the person
    and the child is meaningful and beneficial to the child; and (b) the ordered
    access will not impair the childs future opportunities for adoption. The onus
    for establishing those factors rests with the party seeking access.

[10]

The trial judge found that there was no evidence that the relationship
    between the child and the appellant was beneficial to the child. That finding,
    made when the child was two and one half years old, is entitled to deference in
    this court. The Superior Court Appeal Judge carefully considered the issue of
    access and came to the same conclusion.

[11]

We are not persuaded that there is any basis for us to interfere with
    those findings.

[12]

The appellant points to certain alleged flaws in Dr. Amins assessment of
    K.F.s mental state, in particular, the fact that Dr. Amin unduly restricted
    the list of persons he interviewed. The trial judge was aware of the alleged
    deficiencies in Dr. Amins assessment and took them into account when
    considering his evidence. Where the trial judge accepted his evidence, she
    found corroboration in other evidence. This is an appeal, not a new trial, and
    we see no reason upon which we could reverse the finding of the trial judge.

[13]

The trial judge was also aware of the appellants complaints regarding
    the CAS workers. We are not persuaded that breakdown in the appellants
    relationship with the CAS workers was the fault of the CAS. Moreover, the issue
    is not who is at fault but would it be in the best interest of this child to
    have access to the appellant. The alleged misconduct of the CAS does not assist
    the appellant in proving that the test for access has been satisfied.

[14]

Neither the video of the exit visit nor the Keefe affidavit provide a
    sufficient basis to disturb the findings of the trial and appeal judges that
    the appellant failed to show that she should have access despite Crown wardship
    on the basis that the relationship between the person and the child is
    meaningful and beneficial to the child.

[15]

The video shows that the appellant is able to deal with the child in a
    calm and patient manner. Arguably, the video shows that the appellant would
    enjoy a continuing relationship with the child but that is not the legal test.
    In our view, the video falls well short of demonstrating that despite Crown
    wardship the relationship between the person and the child is meaningful and
    beneficial to the child.

[16]

Dr. Keefe has not seen the child and, as she herself points out, on the
    basis of her observation of the appellant, it is not possible to accurately
    evaluate the emotional significance and meaningfulness of the relationship for
    [the child], who is 4 years old. This significantly limits the force of her
    evidence on the issue we must decide. Any critique of Dr. Amins report could
    and should have been advanced at trial. Her opinion on the merits of open
    adoption amounts to a criticism of the current statutory regime and the
    presumption of no access that it creates. We are bound to apply the statute not
    Dr. Keefes opinion as to its merits.

C.

Disposition

[17]

Accordingly, the appeal is dismissed.

Robert J. Sharpe
    J.A.

P. Lauwers J.A.

B.W. Miller J.A.


