



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. G.S., 2012 ONCA 783

DATE: 20121119

DOCKET: C55658

Simmons, Armstrong and Watt JJ.A.

BETWEEN

Childrens Aid Society of Toronto

Applicant (Respondent in Appeal)

and

G.S.

Respondent (Appellant in Appeal)

Robin E. Leighton, for the appellant

Caroline Handleman, for the respondent

Heard: October 30, 2012

On appeal from the order of Justice Emile R. Kruzick of
    the Superior Court of Justice, dated May 22, 2012, dismissing the appeal from
    the order of Justice Debra A.W. Paulseth of the Ontario Court of Justice, dated
    October 19, 2011.

By the
    Court:

[1]

The appellant appeals the order of a Superior Court judge dismissing his
    appeal from an order of an Ontario Court judge making M.S. a Crown ward. The
    formal order for Crown wardship is silent on the issue of access. In her
    reasons, the trial judge noted that it was clear from the evidence that if M.S.
    were made a Crown ward, he would be adopted by his foster family and his
    biological father would be able to continue contact with his son.

[2]

The appellant raises one issue on appeal. He argues that the Superior
    Court appeal judge and the trial judge erred in their application of subsection
    37(3) of the
Child and Family Services Act
, R.S.O. 1990, c. C.11 (
CFSA
)
    regarding the best interests of the child.

[3]

For the reasons that follow, we allow the appeal.

A.

Background

[4]

The appellant is the biological father of the child, M.S., who was born
    in June 2008.

[5]

M.S. was initially apprehended two days after his birth because of the
    Societys concerns about his biological mother, R.O. R.O. suffered from untreated
    mental health issues (the result of a closed head injury when she was 15) and
    had a criminal record for assaults. Both parents had a history of substance
    abuse. An older child, R.S., was made a Crown ward soon after M.S. was
    initially apprehended. On May 1, 2009, summary judgment was granted finding
    M.S. a child in need of protection.

[6]

Although R.O. took no steps to cooperate with the Society and address
    her issues following M.S.s initial apprehension, in the words of the trial
    judge, the appellant turned his life around. As described by the trial judge,
    the appellant attended his visits regularly, began a therapeutic access
    program, attended the Canterbury Clinic for substance screens and counselling,
    and participated in a relapse prevention program three times. He also completed
    an anger management program and the Caring Dads program.

[7]

As a result of the appellants efforts, on December 10, 2009, the court
    ordered that M.S. become a ward of the Society for two months and then be
    placed in the care and custody of the appellant for 12 months, subject to
    Society supervision. One of the conditions of the supervision order was that
    the appellant not have any contact with R.O., if M.S. was with him, and that he
    not allow R.O. to have access to M.S. without preapproved consent by the
    Society.

[8]

On February 9, 2011, an order was made terminating the Societys
    supervision of M.S. and placing him in the appellants custody with a
    restraining order against R.O. under subsection 57.1(3) of the
CFSA
.
[1]


[9]

On March 17, 2011, a Society worker made an unannounced visit to the
    appellants home and found R.O. alone in the apartment with M.S. As a result,
    M.S. was again apprehended that day and returned to the foster family he lived
    with before being placed in his father's care.

[10]

As
    a result of M.S.s apprehension, the Society launched a further protection
    application seeking a final order for Crown wardship, with no access, for the
    purpose of adoption.

[11]

At
    trial, it emerged that the appellant had reconnected with R.O. in the late fall
    of 2010 and allowed her to store some of her belongings at his apartment. As
    stated by the appellant, inevitably [M.S.s] path and [his] mother's path
    crossed. The trial judge found that [t]his contact increased such that, on
    three or four occasions before March 17, 2011, [M.S.] was present when [the
    appellant] saw [R.O.].

[12]

According
    to the appellant, on the morning of March 17, 2011, he received an early
    morning telephone call to go to work  and R.O. called immediately thereafter.
    She sounded okay to him and he needed a babysitter. She seemed all right when
    she arrived. The appellant prepared M.S.s lunch and believed M.S. would have a
    nap. The appellant hoped to be back within about six hours  by 3 p.m.

[13]

The
    appellant's evidence at trial made it clear that he had lied to his Society
    worker about not having contact with R.O. and that he had also lied in the
    Statement of Agreed Facts filed in support of the February 2011 order, which
    terminated the Societys supervision.

[14]

That
    said, the appellant also gave evidence at trial concerning the steps he had
    taken to ensure he has no ongoing contact with R.O. For example, he took back
    the key he had given her to his apartment, changed his locks and telephone
    number, continued counselling at the Canterbury Clinic and wrote a letter to
    R.O. in an effort to gain closure of that relationship.

B.

The trial judge's reasons

[15]

The
    trial judge began the analysis section of her reasons by noting the efforts the
    appellant had made to turn his life around and establish a good relationship
    with his son. She described him as a very pleasant, sincere, and likeable
    person  who dearly loves his son.

[16]

Nonetheless,
    the trial judge noted that the appellant had made serious mistakes in the past
     in relation to substance abuse, errors in judgment and in his relationship
    with R.O. In essence, the trial judge concluded that, in the light of the
    serious risk R.O. posed to M.S., and in the light of the appellants conduct in
    exposing his son to that risk as well as lying about it, M.S.s best interests
    required that he be made a Crown ward. She said:

In the three months from December, 2010 until the apprehension
    in March, 2011, [the appellant] had increasing contact with [R.O.]. They talked
    on the phone. He saw her when [M.S.] wasn't there. He then saw her three or
    four times when [M.S.] was there and then left [M.S.] with her to go to the
    store and finally for the better part of a day

[R.O.] is a serious risk to [M.S.]. Someone who lets [M.S.] get
    to know [R.O.] is placing him at risk. Someone who leaves [M.S.] with [R.O.] is
    placing him at risk.

Someone who makes these mistakes after this much involvement
    with courts and doctors and treatment centers, a young child made a Crown ward
    and a second child apprehended twice  this is someone who cannot really commit
    to meeting [M.S.]s best interests. No amount of prohibitive conditions would
    be likely to make this situation adequate  they didn't work before on more
    than one occasion. I cannot place a child back in that same situation. If it
    was a question of giving [the appellant] another chance at just about anything
    else  I would but not a helpless child  the court has to focus on [M.S.] and
    not [the appellant]s best interests.

C.

The Superior Court appeal judge's reasons

[17]

On
    appeal, the Superior Court appeal judge decided the matter on the basis of
    deference to the trial judge. The appeal judge acknowledged that the trial
    judge did not articulate all the elements of the best interests test, but
    concluded that the consideration of the best interests test was implicit in her
    reasons. Finding no errors of fact or law, he therefore dismissed the appeal.

D.

Relevant statutory provisions

[18]

Subsection
    37(3) of the
CFSA
sets out the factors to be considered, where
    relevant, in making an order in the best interests of the child:

37. (3) Where a person is directed in this Part to
    make an order or determination in the best interests of a child, the person
    shall take into consideration those of the following circumstances of the case
    that he or she considers relevant:

1.
The child's physical, mental and
    emotional needs, and the appropriate care or treatment to meet those needs.

2.      The child's physical, mental and emotional
    level of development.

3.      The child's cultural background.

4.      The religious faith, if any, in which the
    child is being raised.

5.
The importance for the child's
    development of a positive relationship with a parent and a secure place as a
    member of the family.

6.
The child's relationship and emotional
    ties to a parent, sibling, relative, other member of the child's extended
    family or member of the child's community.


7.      The importance of continuity in the
    child's care and the possible effect on the child of disruption of that
    continuity.

8.      The merits of the plan for the child's
    care proposed by society, including a proposal that the child be placed for
    adoption or adopted, compared with the merits of the child remaining with
    returning to apparent.

9.      The child's views and wishes, if they can
    be reasonably ascertained.

10.    The effects on the child of delay in the
    disposition of the case.

11.
The risk that the child may suffer harm
    through being removed from, kept away from, returned to or allowed to remain in
    the care of a parent.

12.
The degree of risk, if any, that
    justify the finding that the child is in need of protection.

13.    Any other relevant circumstance (emphasis
    added).

E.

Discussion

(1)

Standard of Review

[19]

In
C.(G.C.) v. New Brunswick (Minister of Health and Community Services)
,
    [1988] 1 S.C.R. 1073, at para. 5, the Supreme Court of Canada said the
    following about the deferential standard of review applicable in family law
    cases in the context of a child welfare proceeding:

trial judges decisions, particularly in matters of family
    law, should not be interfered with lightly by appellate courts absent an error
    in principle, a failure to consider all relevant factors, a consideration of an
    irrelevant factor or a lack of factual support for the judgment.

[20]

The
    order under appeal in this case is the order dismissing the appeal of the trial
    judges decision. At this stage, this court should only intervene if the
    Superior Court appeal judge erred in principle by failing to identify a
    material error in the decision below.

[21]

In
    our view, the Superior Court appeal judge did err in principle by failing to
    identify a material error in the decision below  namely, that the trial judge
    considered only the risk of harm to the child if the appellant exposed him to
    R.O. and failed to weigh that harm against the risk of disruption to the
    childs relationship with his father if an order for Crown wardship were made.

[22]

On
    that basis, it is our view that the Superior Court appeal judge erred in
    failing to identify the error in principle below and in dismissing the appeal.

(2)

The Best Interests
    Determination

[23]

On
    appeal to this court, the appellant argues that the Superior Court appeal judge
    erred in failing to hold that the trial judge erred in law by failing to
    consider the bond between M.S. and his father, the risk that the bond would be
    diminished or terminated as a result of the Crown wardship order, and the harm
    to M.S. that could follow.

[24]

We
    agree with this submission.

[25]

In
    our view, the trial judge made the following error in principle in analyzing
    M.S.s best interests: she failed to identify the risk of disruption to the
    valuable relationship with his father that a Crown wardship order would
    introduce as a relevant factor in the best interests analysis and she failed
    to balance this risk against the risk of harm to M.S. through exposure to R.O.

[26]

On
    appeal, the Superior Court appeal judge repeated this error by deciding the
    case based on deference without reference to this omission in the trial judges
    best interests analysis.

[27]

Subsection
    37(3) of the
CFSA
requires a person in determining a childs best
    interests to take into account all relevant circumstances, including those
    specifically listed.

[28]

In
    this case, the childs emotional needs in connection with his relationship with
    the appellant (s. 37(3)1), the importance of the childs development of a
    positive relationship with the appellant (s. 37(3)5), the childs relationships
    and emotional ties to the appellant (s. 37(3)6) and the risk of harm to the child
    if he were kept away from his father (s. 37(3)11) were all highly relevant.
    While the risk that the child may suffer harm through being allowed to remain
    in the appellants care was also relevant, it was an error for the trial judge
    to consider that risk alone.

[29]

That
    the relationship between the appellant and M.S. was positive is clear from the
    trial judges reasons. At para. 19, the trial judge accepted that the
    supervised visits between M.S. and the appellant have always been very
    positive, that the two have a close and loving relationship,
that the appellant is attentive to [M.S.s] needs and very affectionate with
    him, and that M.S. is always excited to see his father.

[30]

Given
    this clearly positive relationship, it was necessary for the trial judge to
    assess the degree of risk to M.S. through the possibility of exposure to R.O. 
    an exposure that the appellant had taken steps to reduce by retrieving his
    apartment key from R.O., changing his locks and phone number, and writing a
    letter to R.O. asking her not to contact him  and balance it against the
    disruption to the father/son relationship.

[31]

Rather
    than engaging in this balancing exercise, the trial judge appears to have been
    satisfied with the future adoptive mothers statement that she would allow the
    appellant to visit with his son, and with making the Crown wardship order
    silent about access. In our view, this was an error. The court should not have
    rested upon the assurances of this foster parent alone as a basis for
    disregarding the potential for risk to M.S. arising from the disruption of his
    relationship with his father.  This is so for at least two reasons. In the
    absence of an order entitling the appellant to have contact with M.S., the
    adoptive parents could at any point and for any reason choose to sever that
    contact.
[2]
Moreover, even if some contact were to continue, this contact would necessarily
    be significantly reduced in a way that could be contrary to M.S.s best
    interests.

[32]

Turning
    to the degree of risk posed to M.S. from the risk of exposure to R.O., ss. 37(3)12)
    requires consideration of the degree of risk, if any, that justified the
    finding that the child is in need of protection. Throughout her reasons, the
    trial judge treated the risk of harm to M.S. through exposure to R.O. as
    significant.

[33]

However,
    beyond referring to the fact that the risk posed by R.O. stems from mental
    health issues and R.O.s decision to self-medicate those issues with marijuana,
    and to the further fact that the risk of harm manifests itself in domestic
    violence, aggression and inability to interact appropriately with her children,
    the trial judge never identified the precise degree of risk posed to M.S. by
    R.O. if M.S. were allowed to remain in the appellants care.
[3]

[34]

The
    documents filed in the appeal record identify incidents of domestic violence
    between R.O. and previous partners, between R.O. and the appellant, and, on one
    occasion, between R.O. and an access supervisor. During the latter incident,
    R.O. apparently threw a bowl, a spoon, and a banana at the access supervisor.
    While the record supports a finding that exposure to R.O. poses a risk to M.S.,
    none of the other documents in the appeal record addressed this risk in the
    context of the appellant having turned his life around, overcome his
    substance abuse problems, and ceased living with R.O. as a domestic partner. In
    these circumstances, the extent of that risk if M.S. were placed in the
    appellants care subject to a restraining order was not in our view
    sufficiently quantified to permit a proper balancing against the risk of
    disruption to the positive relationship with the appellant.

[35]

For
these reasons, it was in our view, an error for the trial
    judge not to weigh the risk of harm through exposure to R.O. against the risk
    of disruption to M.S.s relationship with the appellant. In light of this
    error, it was equally an error for the Superior Court appeal judge to defer to
    the trial judge in the absence of the required balancing of best interest
    factors.

[36]

In
    the light of the nature of the issues to be determined, we see no alternative
    but to order a new trial.

[37]

In
    the result, the appeal is allowed, the orders of the Superior Court appeal
    judge and of the trial judge are set aside, and a new trial is ordered.

Released: JS November 19, 2012                        Janet
    Simmons J.A.

Robert
    P. Armstrong J.A.

David
    Watt J.A.





[1]
Subsection 57.1(3) of the
CFSA
provides that, When making an order under subsection (1), the court may,
    without a separate application, make a restraining order in accordance with
    section 35 of the
Childrens Law Reform
    Act, 2009
, s. 11, s.3. Section 35 of the
Childrens Law Reform Act, 2009
, permits
    a court to make a restraining order if the applicant has reasonable grounds to
    fear for his or her own safety or for the safety of any child in his or her
    lawful custody.



[2]

A
    continuing relationship can be preserved where the society applies for an
    openness order under s. 145.9(1) of the
CFSA
. 
    Subsection 145.1(3) of the
CFSA
provides that the court may make an openness order in respect of a child if the
    court is satisfied of the following: that it is in the best interests of the
    child;  that the openness order will permit the continuation of a relationship
    with a person that is beneficial and meaningful to the child;  and that
    the society, the person who will be permitted to communicate with or have a
    relationship with the child if the order is made, and the person with whom the
    society has placed or plans to place the child for adoption, have all
    consented.



[3]

At para. 12 of her reasons, the trial judge states all the
    documents referred to above discuss in great detail the inability of [R.O.] to
    interact appropriately with her children and the high degree of risk she poses
    to [the child, M.S.]. At para. 41, it is stated that [R.O.] is a serious risk
    to [M.S.]. The trial judge refers to R.O.s mental health issues, her decision
    to self-medicate, and to the documented incidents of domestic violence, aggression
    and an inability to interact appropriately with her children.


