



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. M.S., 2016
    ONCA 396

DATE: 20160525

DOCKET: C61739

MacPherson, Lauwers and Hourigan JJ.A.

BETWEEN

Childrens Aid Society of Toronto

Applicant

(Respondent)

and

M.S.

Respondent

(Appellant )

M.S., in person

Ian Ross, for the children E. and A.

Tammy Law, for the respondent the Childrens Aid Society
    of Toronto

Margarida Pacheco, as
amicus

Heard:  May 20, 2016

On appeal from the judgment of Justice Frances P. Kiteley
    of the Superior Court of Justice, dated December 8, 2015.

ENDORSEMENT

[1]

The appellant, M.S., appeals the decision of the appeal judge dismissing
    his appeal of the order of Curtis J. denying him leave to bring a Status Review
    Application.

[2]

The appellant and his ex-wife have two children, who were apprehended
    and placed in the care of the Childrens Aid Society of Toronto (CAS) on
    March 23, 2010.

[3]

On July 10, 2010, Curtis J. found that the children were in need of
    protection and granted an order making them wards of the CAS for four months,
    with access by the parents at the discretion of the CAS.

[4]

On April 16, 2012, Zuker J. ordered that the children be Crown wards for
    the purpose of adoption and that there be no access granted to the parents.

[5]

The appellant and his former wife appealed the order of Zuker J. That
    appeal was dismissed on November 20, 2012 by order of Penny J.

[6]

In February 2014, the appellant brought a motion to this court seeking
    leave to extend time to appeal the order of Penny J.  The motion was dismissed
    on March 19, 2014.

[7]

On May 27, 2014, the appellant commenced a Status Review for a Crown ward.
    The only relief sought was access to his children. The proceeding was adjourned
    on multiple occasions because the appellant did not attend court.

[8]

On November 12, 2014, Curtis J. dismissed the Status Review Application
    as a consequence of the appellants failure to attend court. In her endorsement,
    she ordered that the appellant could not bring a further Status Review
    Application without leave of the court obtained by a Form 14B motion.

[9]

Between February and March 2015, the appellant brought three Form 14B
    motions seeking leave, and all were dismissed without prejudice by Curtis J. 
    In May 2015, he brought a further motion for leave and the motion was argued on
    June 24, 2015 before Curtis J.  In oral reasons, Curtis J. dismissed the
    motion.

[10]

The appellant then appealed the dismissal of his leave motion to the
    Superior Court of Justice.  In reasons dated December 8, 2015, Kiteley J.
    dismissed the appeal.  It is the appeal of that decision that is before this
    court.

[11]

We note that the children were placed for adoption and began their
    period of adoption probation on July 29, 2015.

Analysis

[12]

The appellant makes the following submissions in his factum:

i)

the appeal judge made a reversible error when she referred in her
    reasons to the children as girls, when, in fact, one of the children is a boy;

ii)

the appeal judge misapprehended a letter from the Jamaican Canadian
    Association, which he submitted to Curtis J. on his motion for leave; and

iii)

his rights under ss. 7, 15 and 28 of the
Charter of Rights
and
Freedoms
have been breached because he has been denied a Legal
    Aid (LAO) certificate for the purposes of this appeal.

[13]

On the hearing of the appeal, the appellant was assisted by
amicus
,
    who raised an additional argument. She submitted that the appeal judge erred in
    applying the test for granting leave to bring a Status Review Application as
    described in
Catholic Childrens Aid Society of Metropolitan Toronto v. BAF
,
    [1988] O.J. No. 2950 (OCJ). Specifically, she submits that the appellate judge
    erred by equating an open adoption order with access, when considering whether
    the relief sought could be obtained other than by reviewing the whole order.

[14]

We would not give effect to any of these submissions.

[15]

The appellant is correct that the appeal judge referred to the children
    as girls in two parts of her endorsement.  However, in our view, these were
    mere factual slips and had no bearing on her decision. They certainly do not warrant
    appellate intervention.

[16]

With respect to the letter from the Jamaican Canadian Association, the
    appeal judge reviewed the letter and determined that, even if Curtis J. had
    considered the letter, it would not have changed the outcome of the motion.  We
    see no error in that analysis.

[17]

The letter simply described a parenting program that the appellant had
    attended. It ended with the observations that the appellant is interested in
    his childrens future and would like to have a quality relationship with them,
    and the request that he be given a chance to be a father to his children. The
    letter does not impact the analysis of whether the appellant has put forward a
prima
    facie
case. The appeal judge also did not err, as was suggested by the
    appellant, in describing the letter as hearsay. It was an out of court
    statement tendered for the truth of its contents, namely, an opinion by an author
    who was not qualified as an expert.

[18]

There has been no breach of the appellants
Charter

rights.
    He has had legal representation, funded by LAO, at every step of the proceeding
    except the current appeal. The subject matter of the appeal is not the Crown
    wardship order, but his application for leave to bring a Status Review
    Application. It is within the purview of LAO to assess the appellants
    eligibility for a certificate in these circumstances.

[19]

With respect to the argument raised by
amicus
, there is an
    issue whether an access order is even available to the appellant, given that
    the children have been placed for adoption. In any event, the test for granting
    leave to bring a Status Review Application has five parts, all of which must be
    met. We are not satisfied that even if the appeal judge erred in considering
    this part of the test  that the  appellant can meet any of the other parts of
    the test.

[20]

The appeal is dismissed. We make no order as to costs.

J.C.
    McPherson J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


