



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 Oxford
    County v. W.T.C, 2013 ONCA 637

DATE: 20131101

DOCKET: C55909

Hoy A.C.J.O., Feldman and Simmons JJ.A.

BETWEEN

Childrens Aid Society of Oxford County

Applicant
    (Respondent in Appeal)

and

W.T.C.

Respondent (Appellant in Appeal)

John
    Schuman and Rachel Healey, for the appellant

Lorne
    Glass, for the respondent

Katherine
    Kavassalis, for the Office of the Childrens Lawyer

Heard:
    July 4, 2013

On appeal from the order of Justice Johanne N. Morissette
    of the Superior Court of Justice, dated July 20, 2012 dismissing an appeal from
    the order of Justice Peter R. W. Isaacs of the Ontario Court of Justice, dated
    September 2, 2010.

By the Court:

[1]

In our decision of July 23, 2013, the court made two orders: an order
    for an additional assessment and an order requesting written submissions from
    the Attorney General in response to the Constitutional question raised by the
    appellant.

[2]

This court ordered that the Society provide a current assessment of the
    proposed adoptive parents, of the child, and of the birth mother for the
    purpose of determining what is in the childs current best interests. This was
    necessary at this stage of the process because of fresh evidence tendered by
    the Childrens Aid Society indicating that the proposed adoptive parents had
    separated since the time of the last adoption home study. Since the status
    review judges reasons made it clear that the stable, two-parent home provided
    by the proposed adoptive parents was a key factor in her decision to uphold the
    order for Crown wardship with no access, this court viewed the separation as a
    change in circumstances requiring further investigation.

[3]

On appeal to this court, the appellant mother indicated that if she were
    not awarded custody, she would request access to the child for both herself and
    for the appellants two siblings who are in her custody.

[4]

Further to the courts order, the parties agreed to name as the assessor
    Dr. N. Perlman, a well-qualified psychologist, and a further order was made
    appointing her to provide the assessment, initially within 30 days, then with a
    requested extension to October 9, 2013.

[5]

The court has now received the detailed report from Dr. N. Perlman. The
    report makes it clear that the child is thriving in the proposed adoptive
    family, and that she would continue to do so, despite the separation of the
    parents. Furthermore, the child suffered great emotional distress when she was
    transferred from her foster family to the proposed adoptive family. If she were
    to be moved again, the fear is that she would have great difficulty handling
    the change.

[6]

Following receipt of the report, the parties were allowed an opportunity
    to make written submissions based on the report.

[7]

In our view, it is clear from all the evidence, including the report of
    Dr. Perlman, that it is in the best interests of the child, L.H., for the court
    to dismiss the appeal of the mother and to allow the child to be adopted by the
    proposed adoptive parents. There is no basis on the record to find any error in
    the decision of the Superior Court appeal judge.

[8]

On the issue whether the appellant mother, sister and brother of L.H.
    could have access now to L.H., the proposed adoptive parents advised Dr.
    Perlman that they do not wish L.H. to have that relationship at this time (she
    is now six years old). Their reservation appears to relate to L.H.s past
    challenges in adapting to change. However, they also stated that when L.H. asks
    about her birth mother, they will then be prepared to allow contact. Dr.
    Perlman recommended that approach as the most appropriate for L.H. at this
    time, given that she does not know her birth mother. Although the mother
    challenges the basis for Dr. Perlmans conclusion on this issue, we accept her
    neutral assessment as in the present best interests of the child.

[9]

We observe that Dr. Perlmans report is positive about the birth mother.
    Based on the materials before us at this time, we see no reason that when L.H.
    is ready, she should not have contact with the appellant and with her two
    siblings.

[10]

In the
    result, the appeal from the decision making L.H. a Crown ward with no access is
    dismissed.

[11]

The second
    order of the court was a request for written submissions from the Attorney
    General of Ontario in response to the Constitutional question raised by the
    appellant alleging a breach of her
Charter
rights based on delay.
    Those submissions were received within 30 days, as requested. The court will
    reconvene on a date to be arranged, to hear any further submissions from all
    parties on the constitutional question.

[12]

Costs of
    the appeal will be determined at that time.

Released: AH November 1, 2013

A. Hoy A.C.J.O.

K. Feldman J.A.

J. Simmons J.A.


