



WARNING

This is
    a case under the
Child, Youth and Family Services Act, 2017
and subject
    to subsections 87(8) and 87(9) of this legislation.
These subsections and subsection
    142(3) of
the
Child, Youth and
    Services Act, 2017
, which
deals with the consequences of failure to comply, read
    as follows:

87
(8)
Prohibition
    re identifying child
 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.

(9)
Prohibition re
    identifying person charged
 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.

142
(3)
Offences
    re publication
 A person who contravenes subsection 87(8) or 134(11)
    (publication of identifying information) or an order prohibiting publication
    made under clause 87(7)(
c
) or subsection 87(9), and a director, officer
    or employee of a corporation who authorizes, permits or concurs in such a
    contravention by the corporation, is guilty of an offence and on conviction is
    liable to a fine of not more than $10,000 or to imprisonment for a term of not
    more than three years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION:

Children's
    Aid Society of Toronto v. S.A.P., 2020 ONCA 208

DATE: 20200316

DOCKET: C67678

Rouleau, Hourigan and Roberts JJ.A.

BETWEEN

Childrens
    Aid Society of Toronto

Applicant/Respondent on Appeal (Respondent)

and

S.A.P.

Respondent/Appellant (Appellant)

and

M.I.

Respondent on Appeal (Respondent)

and

OCL

Respondent on Appeal (Respondent)

Mark Feigenbaum, for the appellant

Kenneth Atkinson, for the respondent Childrens Aid
    Society of Toronto

Andrew Sudano and Robert Shawyer, for the respondent M.I.

Jane Long, for the respondent Office of the Childrens
    Lawyer

Heard and released orally: March 11, 2020

On appeal from the order of Justice Sharon Shore of the Superior
    Court of Justice, dated June 7, 2019, with reasons reported at 2019 ONSC 3482,
    dismissing an appeal from the order of Justice Manjusha Pawagi of the Ontario
    Court of Justice, dated February 14, 2018.

REASONS FOR DECISION

[1]

The appellants two sons, J.P.F. and J.I., were apprehended and
    eventually ordered into the care of M.I., the stepfather of J.P.F. and the father
    of J.I. The Childrens Aid Society of Toronto (the CAS) proposed that the
    children be placed with M.I. permanently while the appellant sought to regain
    custody under the supervision of the CAS. After trial in the Ontario Court of
    Justice, the judge ordered that the children remain with M.I. The appellants
    appeal to the Superior Court of Justice was dismissed.

[2]

On appeal to this court, the appellant raises three main grounds of
    appeal. She argues the trial judge:

1.

erred in
    concluding that there was a risk of emotional harm if the children moved homes
    in the absence of any expert evidence as to the existence of such a risk;

2.

failed to
    adequately consider the many steps taken by the appellant to improve her
    circumstances and whether, in light of these improved circumstances the
    children could be returned to her care with appropriate safeguards; and

3.

failed to
    adequately consider MIs criminal history and violent behaviour.

[3]

In our view the appeal should be dismissed.

[4]

As to the first ground, the appellant argues that, in the absence of
    expert evidence, the CAS had not met its burden to show that the children would
    likely suffer a risk of emotional harm. Under s. 37(2)(f) of the
Child and
    Family Services Act
, R.S.O. 1990, c. C.11,
[1]
not every type and severity of emotional harm was sufficient to establish emotional
    harm justifying state intervention. She maintains that, except in the rarest of
    cases, expert evidence on this point is required. In the appellants
    submission, the trial judges conclusion on harm is conclusory and insufficient
    on this point and, given the absence of expert evidence, the record does not
    support the conclusion of emotional harm requiring state intervention nor does
    it overcome the presumption in s. 57(3) that the children ought to be returned
    to her care.

[5]

We reject this ground of appeal.

[6]

The issue of whether the children were in need of protection had been
    determined on consent of the parties prior to trial. A fresh finding of a need
    for protection pursuant to s. 37 did not have to be made. The issue before the
    trial judge was the appropriate disposition given the earlier finding of a need
    for protection. It is in reaching her conclusion on the appropriate disposition
    that the trial judge found that the order that the children remain with M.I.
    was necessary to protect them in the future. As found by the trial judge, there
    was a risk of emotional harm if the children were removed from M.I. who had
    been their long-term caregiver. That finding was well supported in the evidence
    and is entitled to deference.

[7]

With respect to the second and third grounds of appeal, whether the
    children could be returned to the appellant with appropriate safeguards given
    her improved circumstances and the appropriate weight given to M.I.s criminal
    history and behaviour, both of these were specifically addressed by the trial
    judge in her reasons. We see no basis to interfere with the weight the trial
    judge placed on them nor how she balanced the various factors in coming to her
    determination that the childrens best interests were served by their remaining
    with M.I.

[8]

For these reasons, we dismiss the appeal.

Paul Rouleau J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.





[1]

This statute was repealed and replaced by the
Child, Youth
    and Family Services Act, 2017
, S.O. 2017, c. 14, Sched. 1, on April 30, 2018,
    subsequent to the trial judges decision.


