



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: Family and
    Children's Services of the Waterloo Region

v. J.V., 2017 ONCA 194

DATE: 20170307

DOCKET: C62554

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

The Childrens Aid Society of the Regional
    Municipality of Waterloo

Applicant (Respondent
    on Appeal)

and

J.V. and M.V.

(Appellants on Appeal)

and

C.V.

Respondent (Respondent
    on Appeal)

and

J.S.

Respondent (Respondent
    on Appeal)

Brigitte Gratl, for the appellants, J.V. and M.V.

Jeff W. Boich, for the respondent, the Childrens Aid
    Society of the Regional Municipality of Waterloo

Heard: February 15, 2017

On appeal from the order of Justice Robert D. Reilly of
    the Superior Court of Justice, dated February 12, 2016.

ENDORSEMENT

[1]

This is an appeal by J.V. and M.V. from the order of Reilly J.
    dismissing an appeal by C.V. and J.V. and M.V. from the judgment of Neill J.
    declaring the child, A.M.D.V. be made a Crown ward, and placed in the care of
    the Childrens Aid Society of the Regional Municipality of Waterloo, (the
    Society) without access.

[2]

A.M.D.V. (the child) was born on March 2, 2013 and she is now four
    years of age. Her biological parents are C.V. and J.S., neither of whom
    participated in this appeal.

[3]

The child was apprehended at birth by the Society and placed in a
    temporary foster home. At the end of November 2013, the child was placed in a
    foster home with a family who have indicated a desire to adopt her. The child
    has remained in this home continuously since November 2013 with her foster
    parents and their son.

[4]

After the child was apprehended, her biological parents and her maternal
    grandparents exercised rights of access and each saw the child for about two
    hours per week until February 2015. At that time the judgment of Neill J. was
    released and access ended. There was one further visit in March 2015, which has
    been described as a goodbye visit. Save for a chance encounter at a local
    Walmart store between the grandparents and the foster parents, the appellants
    have not seen the child since March 2015. The appellants motions for interim access
    pending appeal have been dismissed.

A.

Fresh evidence

[5]

Both the appellants and the respondent seek to file fresh evidence on
    this appeal.

[6]

The appellants have filed a voluminous motion record which they seek to
    have admitted as fresh evidence. There are affidavits from each of the
    appellants as well as the biological mother, C.V., who is not a party to this
    appeal, also filed in response to the Societys fresh evidence motion.

[7]

The appellants proposed fresh evidence is described in the notice of
    motion as follows:

a.

Information with
    respect to deficiencies in the SAFE assessment home study process that led to
    the refusal of the appellants as adoptive parents; the information came to
    light only in the context of a hearing before the Child and Family Services
    Review Board and the appellants subsequent research into the SAFE assessment
    procedure.

b.

The evidence
    relates to both the appellants and the Plan of Care now submitted for
    consideration by the appellant, J.V.s, sister G.R. and her husband G.C.

[8]

The appellants before this court were not parties when this matter
    proceeded before Neill J. They were advised by the Society early on in the
    process to seek independent legal advice and did so. Nevertheless, not until
    the appeal to the Superior Court of Justice did they seek to be added as
    parties. The record is replete with references to the Societys early efforts
    to have the appellants submit a permanent plan of care, but they resisted. Ms.
    Lennon, the Society worker responsible for the completion of the SAFE protocol,
    explained fully the Societys concerns about the appellants plan of care and
    the difficulties in relation to the involvement of C.V. with them and the
    child. As the trial judge noted in paragraph 54 of her reasons:

Ms. Lennon did not complete the entire SAFE assessment as
    concerns were raised regarding the grandparents permanency plan early on in
    the assessment that the Society believed could not be mitigated and completing
    the entire assessment would not have changed the outcome. As the assessment was
    terminated early and the grandparents did not complete the required training,
    by Ministry standards they could not be approved as adoptive parents.

[9]

In September 2013, the appellants were given a letter explaining why the
    Society would not support a placement with them.

[10]

C.V., the biological mother and the appellants adopted daughter, has
    Alcohol Related Neurodevelopmental Disorder (ARND), a form of permanent brain
    damage due to prenatal exposure to alcohol which, through no fault of her own,
    makes her incapable of parenting her child.

[11]

The appellants initially resisted putting in a plan of their own. They
    wanted C.V. to have custody of the child and they would supervise.

[12]

The trial judge succinctly, set out the situation at the time of the
    hearing at paragraph 5 of her reasons as follows:

On March 5, 2013, the grandparents put forth a plan for the
    care of A.V. whereby the mother would continue to reside in their house and
    essentially the mother would be supervised at all times with the child either
    by the grandparents or other friends/family members. The grandparents then
    amended their plan for A.V. on June 25, 2013 requesting a custody order
    pursuant to s. 57.1 of the
Child and Family Services Act
(the Act)
    but stated they were also willing to adopt A.V.

[13]

The Societys position was also set out at paragraph 8 of those reasons:

The Societys position is that it is not in A.V.s best
    interest to be placed in the care of her grandparents due to numerous concerns,
    including the conflict between the mother and grandparents, concerns that their
    plan was not permanent as there was a risk that they would place A.V. back with
    her mother at some point in the future, the grandfathers lack of motivation to
    put forth a plan for A.V., the grandparents lack of support for their plan,
    particularly from their three adult children and concerns relating to their age
    and the grandfathers health. Therefore, the Society is seeking an order for crown
    wardship without access, with a plan for A.V. to be adopted by her current
    foster parents with whom she has been residing since November 29, 2013.

[14]

It is fair to say that the appellants plans have been evolving over time.
    There is no doubt, however, that before the hearing in 2015, they were aware of
    the Societys concerns, and why the SAFE protocol had not been completed. They had
    received legal advice but did not seek to become parties to the hearing before
    Neill J. Only after her decision did they seek to become parties to the appeal
    and retain counsel.

[15]

The issue with respect to the appellants suitability as permanent
    caregivers for the child was front and centre at the hearing before Neill J.
    Any and all issues in relation to the SAFE protocol could and should have been
    raised at that time and some were. We do not accept the appellants contention
    that they only became aware of the deficiencies in the SAFE home study at the
    hearing before the Child and Family Services Review Board.

[16]

Ms. Lennons evidence before Neill J. belies that suggestion. Any such
    proposed evidence ought to have been presented at the hearing before Neill J.
    and it is simply too late to raise additional matters in relation to that
    evidence now  at the hearing of the second appeal from the determination of
    Neill J. We do not therefore admit that evidence on this appeal.

[17]

Similarly, the appellants now submit a further plan of care for the
    child in response to the trial judgment and seek to cure the deficiencies the
    trial court found with their plan of care over the course of the nine day
    hearing in May and September of 2014.

[18]

While we do not doubt that the appellants mean well, it is simply not in
    this childs best interests to have this matter continue as the appellants
    refine and change their plans. A.M.D.V. was apprehended at birth and she just
    celebrated her fourth birthday. She is with a family who loves her and wants to
    adopt her and she has been with them since she was ten months old. She knows no
    other home. She is entitled to permanence in her life.

[19]

The new plan of care proposed in the fresh evidence includes the
    involvement of two persons, whom the child has never met. However,
    well-intentioned, it is simply too late in the process to put forward an
    alternate plan of care at this late stage.

[20]

For these reasons, we would not admit the fresh evidence proposed by the
    appellants. We turn to the grounds of appeal raised.

B.

sufficiency of reasons

[21]

While the reasons of the appeal judge are brief, read as a whole, as we
    are required to do, it seems that what he has done, is to adopt the trial
    judges reasons as his own. In such circumstances, we are put in the position
    of in effect sitting on appeal from the decision of Neill J. This remedy has
    been adopted by this court on previous occasions: see
R. v. Minuskin
,
    [2003], O.J. No. 523 (C.A.).

[22]

The parties argued the appeal on this basis and the interests of justice
    here require that the appeal proceed on this basis rather than sending it back
    to the intermediate appellate court for a further hearing.

C.

capacity

[23]

The appellants argue that the hearing before Neill J. resulted in a
    miscarriage of justice because C.V., who along with the childs biological
    father were the only parties to that proceeding, was in effect incompetent and
    ought to have been represented by a litigation guardian. It was also suggested
    that she may have lacked capacity to consent in the course of the child
    protection proceedings. In this respect, counsel relies on a report of Dr.
    Louise Scott dated March 23, 2011. Dr. Scott is a pediatric neuropsychologist,
    who completed a neuropsychological assessment as per the Canadian FASD
    Diagnostic Guidelines as well as via current Western Canadian Best Practices
    on C.V. when she was 15 years of age.

[24]

At the fourth page, under the heading Emotional Development, the
    report reads:

Taken together these factors, especially within the context of
    the results of all parts of this assessment, support that C.V. requires access
    to an external brain at all times and in all settings to ensure her safety.
    Further, she is unable to appreciate the consequences of any action (her own
    and those of others) and to appreciate the consequences of her
    decisions/actions.

Should she ever encounter the Criminal Justice System, all must
    be aware of the diagnosis, as well as that C.V. therefore is unable to
    appropriately instruct counsel so as to participate in her own defence.

[25]

Dr. Scott was not called as a witness at trial. Her report was filed
    with the court.

[26]

We note firstly, that Dr. Scott did not address competence nor was she
    asked to do so.

[27]

Secondly, the report speaks to an inability to appropriately instruct
    counsel, not an inability to instruct counsel.

[28]

Thirdly, C.V. at the time of trial was 19 years of age and was
    represented at trial by experienced counsel. No issue was raised at that time
    about her competence or capacity to instruct counsel and the trial proceeded
    over nine days in May and September of 2014. No issue was raised about C.V.s
    capacity until the hearing of the appeal before this court. Capacity is
    presumed until the presumption is rebutted and on this record all of the
    evidence favours the conclusion that C.V. had capacity at the time of trial.
    She was capable of agreeing that her child was in need of protection. Indeed it
    has been her position throughout that she wants the child placed with the
    appellants and wants to have access to her.

[29]

It is to be remembered that neither C.V. nor the appellants put forth a
    plan for the child prior to her birth. As late as the day before she was born,
    the appellant, J.V., was still questioning the Society worker, Cynthia Flynn, as
    to why C.V. could not just take anger management courses to enable her to
    parent. The child was born the next day, March 2, 2013, and without a plan in
    place, the Society had no choice but to apprehend her and place her in their
    care.

[30]

There is no basis to challenge the validity of the proceedings for lack
    of capacity on C.V.s part, particularly at this late stage. We are satisfied
    on the overwhelming preponderance of evidence before the trial judge that the
    proceedings were regularly constituted and on this ground there is no basis to
    order a new trial.

D.

constitutional issues

[31]

The constitutional issues are raised for the first time on appeal. None
    were raised before the trial judge.

[32]

The appeal judge at paragraph 8 of his reasons dealt with the
    constitutional issues raises as follows:

[8] I have also carefully considered the two Notices of
    Constitutional Question filed by C.V. (dated December 15, 2015) and by M.V. and
    J.V. (dated August 12, 2015). To summarize their respective positions, C.V.,
    M.V. and J.V. raise what they claim are constitutional issues involving
    essentially (though for different reasons) violations of their rights
    guaranteed by section 15 of
The Charter of Rights and Freedoms
. With
    great respect to C.V., J.V. and M.V., I conclude there is absolutely no
    foundation whatsoever to the concerns they express. There was no violation of
    their constitutional rights based on C.V.s status as adoptee or a person
    suffering from a disability, as a result of the age of the maternal
    grandparents or for any other reason. Any relief sought pursuant to the
    constitutional questions raised is denied.

[33]

In addition to endorsing the appeal judges finding, we note that no
    constitutional issue or issues were raised in the trial court and there is no
    record created there in reference to these issues which were raised for the
    first time on appeal. It is rare that an appellate court will entertain such
    issues when they are raised there for the first time.

[34]

We note in any event that the record below contains no evidence that
    would support any allegation that C.V. or the appellants suffered
    discriminatory treatment at the hands of the Society or anyone else.

[35]

We reject this ground of appeal.

E.

outdated report of dr. scott

[36]

While relying on Dr. Scotts report to support their argument that C.V.
    lacked capacity at the trial and ought to have been represented there by a
    litigation guardian, the appellants complain that the report is outdated and
    unreliable in relation to the diagnosis for C.V. They fault the Society for its
    failure to obtain an updated report from Dr. Scott, which they argue, would
    reflect the positive changes C.V. has made in her life since the childs birth.

[37]

There is no doubt that C.V. has worked hard to improve her life since
    the childs birth. In December 2013, she moved out of the appellants home and
    moved in with J.S. She and the appellants were hopeful that if she moved out, the
    difficulties that were foreseen by the Society in relation to the conflicts
    between C.V. and the appellant, J.V., would diminish or disappear.

[38]

There were long-standing issues of conflict between C.V. and J.V. and
    some violence at times, when the police had to be involved. The Society was
    concerned, and reasonably so in our view, that this conflict was not in the
    childs best interests.

[39]

As it is said, history is generally a good predictor of the future. It
    was not utter speculation on the societys part to be concerned about future
    incidents of violence and concern involving C.V. and J.V. C.V.s disability is
    permanent, it is a pervasive developmental disorder. While C.V. has made
    commendable progress, she will always suffer from the disability outlined in
    Dr. Scotts report. Any update will not change her permanent deficits. None of
    this, of course, is C.V.s fault. The brain damage she sustained
in utero
was as the result of her birth mothers use of alcohol during her pregnancy. An
    updated report from Dr. Scott would have changed nothing.

[40]

In any event, in addition to Dr. Scotts report, the appellant, J.V.,
    testified about the difficulties she and the appellant, M.V., had with C.V.
    when she lived with them. Some of these concerns are set out in paragraph 60 of
    the trial judges reasons.

[41]

We do not give effect to this ground of appeal.

F.

The society moveD precipitously to make The child a crown ward

[42]

The Society had little choice but to apprehend the child at birth.
    Despite efforts to have the appellants file a permanent plan for the child,
    they were reluctant to do so. The appellants held out hope that C.V. would be
    able to have custody of the child and that they would assist and supervise her.
    That plan was unrealistic and provided no permanence for the child.

[43]

The Society waited for several months before filing their application
    for a declaration of Crown wardship, no access. They hoped a realistic
    permanent plan that they could approve, would be forthcoming, but none was.

[44]

The Society wanted a permanent home for the child. Their application was
    heard in May and September of 2014, by which time the child was 18 months old.

[45]

By this time, although no formal plan had been presented, the appellants
    indicated their willingness to adopt the child. They said they would continue
    to permit contact between her and her birth parents. This was the only plan
    that was before the trial judge and was the plan that was advocated by C.V. and
    J.S. The appellants suffered no prejudice by the fact they were not parties
    when this matter proceeded before Neill J. They both testified and it was their
    plan that the trial judge considered in her determination of the best interests
    of the child. The record simply does not support the appellants argument that
    the Societys actions were precipitous. Further, the record negates the
    allegation that the Society had decided at the very outset when the child was
    born that she would be made a Crown ward and did not seriously consider the
    appellants desire to parent the child. To the contrary, the evidence before
    Neill J. discloses the efforts the Society workers made both before and after
    the childs birth to encourage the appellants to put forward a permanent plan
    and to seek legal advice. They did obtain legal advice, but a plan was only put
    forward during the trial.

[46]

The trial judge considered the family plan at paragraphs 136 through 139
    of her reasons. She considered all of the evidence and concluded that the
    appellants plan was not workable because it anticipated the continued
    involvement of C.V. with the child  see paragraph 124 of the trial judges
    reasons.

[47]

In our view, the trial judge carefully considered the evidence and her
    findings are all soundly based on the evidence before her. The fresh evidence
    filed by the Society is filed for the purpose only of bringing the court up to
    date in relation to the child. She is doing extremely well in her foster home
    and is a happy and loveable child who is very much attached to her foster
    family.

[48]

There is no doubt that the appellants and C.V. love the child very much.
    The trial judge concluded, however, that their plan was not in the best
    interests of the child. It was in her interest that an order for Crown wardship
    be made and that she remain with her foster parents, where she has been since
    she was ten months of age and who are anxious to adopt her.

[49]

We agree with her conclusion. The appeal is therefore dismissed.

Released: JMF

J. MacFarland J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.


