



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:
K.S. v. Children's
    Aid Society of the Regional Municipality of Waterloo, 2013 ONCA 104

DATE: 20130219

DOCKET: C56096

Blair, MacFarland and Rouleau JJ.A.

BETWEEN

K.S.

Respondent/Appellant

and

The CAS of the Regional Municipality of Waterloo

Applicant/Respondent in Appeal

and

C.B

Respondent

and

Childrens Lawyer, Henry
    Shields

Respondent

K.S. in person

Catherine Bellinger, for the Childrens Lawyer

Danica Brown, for the CAS of the Regional Municipality
    of Waterloo

Heard and released orally: February 13, 2013

On appeal from the order of Justice C. Lafreniere of the Superior
    Court of Justice, dated August 31, 2012.

ENDORSEMENT

Background and History

[1]

This matter has a long history.  It is the third proceeding involving
    the appellants right of access to her children.  Each proceeding began in the
    Ontario Court of Justice and worked its way through the Superior Court of
    Justice to this Court.

[2]

In August, 2007, the children  then 6 and 8 years of age  were found
    to be in need of protection and placed in the care of their father subject to
    supervision by the respondent Childrens Aid Society, with no right of access
    to the appellant.  The rationale underpinning this decision was the appellants
    lack of recognition of the emotional harm her conduct inflicted on the children,
    who were 6 and 8 years old at the time, and her unwillingness to make changes
    to her conduct.  The issue of access by the mother was adjourned to trial. 
    This decision was upheld in the Superior Court of Justice and in this Court
    (June, 2008).  This Court noted that the appellants access would be fully
    considered at an upcoming status review hearing.

[3]

The appellant has not seen her children since the August 2007 order.

[4]

Subsequently, after a 45-day status hearing review extending over many
    months and ending in July, 2010, Hardman J. of the Ontario Court of Justice
    ordered that the status quo be continued: the children would stay with their
    father, subject to CAS supervision, for a further 12 months and access to the
    appellant was prohibited.  The continuing prohibition was based on evidence
    that the children were not yet emotionally well enough to have contact with
    their mother and that the appellants ongoing mental health issues  which she
    continued to deny  and her ongoing conduct were impediments to access.  There
    had been no change, and Hardman J. gave clear and specific guidance to the
    appellant as to what she needed to do to overcome the no-access order, if
    possible.  The appellant was required to:

a)

attend an appointment
    with a physician to discuss mental health symptoms, at an Agency approved by
    the CAS, to follow all recommendations for further assessment and/or treatment,
    and to obtain a psychiatrist to meet with her regularly and deal with the
    issues identified in the parenting capacity assessment;

b)  attend and
    successfully complete individual and/or group counselling with regard to
    personal issues at an Agency approved by the CAS, and follow through with
    treatment recommendations offered by the service provider; and

c)  cooperate
    with the CAS

[5]

This order was appealed by Ms. S., but the decision was upheld both in
    the Superior Court of Justice and, again, in this Court (Dec. 12, 2011).  Leave
    to appeal to the Supreme Court of Canada was denied.

[6]

In the meantime, the CAS commenced another status hearing in May, 2011 
    just short of a year following the order of Hardman J.  That status hearing led
    to the order now under appeal.  On Dec. 23, 2011, Lynch J. of the Ontario Court
    of Justice confirmed that the status quo would still be maintained: the children
    would continue with their father for a further 12 month with CAS supervision,
    without any access by the appellant.  Lynch J. concluded that there had been no
    change in the appellants condition and that she had not taken any steps as
    required by the order of Hardman J. to address her mental issues that underlie
    the access issue.

[7]

On August 31, 2012, Lafreniere J of the Superior Court of Justice,
    dismissed an appeal from that order. Ms. S. now appeals the decision of
    Lafreniere J. to this Court.

[8]

We are told that another status hearing is pending, with a date yet to
    be set.

Observations

[9]

We have no doubt that Ms. S. loves her children.  As noted, we are told
    that a new status hearing is presently pending where the issue of her rights to
    access will be reviewed again.  We hope that Ms. S. will cooperate with the CAS
    with a view to obtaining a psychiatric assessment that will assist the court at
    the new hearing in making a determination.

[10]

There
    is an assessment by Dr. Benoit that was before Hardman J. in an earlier status
    court proceeding and it sets out the mental condition that impedes Ms. S.s
    access claim.

[11]

Counsel
    advise that if Ms. S. presents this report to a hospital, approved by the CAS,
    she may be eligible for funding.  Presumably, if she cooperates with the CAS as
    required by the order of Hardman J., the CAS will be able to provide the
    necessary guidance to assist her in this regard.  These matters can be reviewed
    at the new hearing.

Disposition

[12]

That
    said, we see no error in the decision of Lafreniere J. or in the decision of
    Lynch J. which she upheld.  Ms. S. has some concerns about the factual findings
    that were made about the refusal by Lynch J. to grant an adjournment, and about
    other perceived procedural mistakes.  The findings were supported by the
    materials and affidavit evidence in the record however, and we see no basis for
    interfering with Lynch J.s discretionary decision to refuse the adjournment. 
    Nor do we see any substance in the other procedural concerns.

[13]

The
    reality is that Ms. S. was required to comply with the terms of the order of
    Hardman J. set out above requiring her to address her mental health issues by
    cooperating with the CAS and by seeking the assistance of, and following the
    treatment recommendations of, a psychiatric agency approved by the CAS.

[14]

She has not taken sufficient steps to do so.

[15]

Accordingly,
    the appeal must be dismissed because Ms. S. has not done what she has to do in
    order to obtain a decision that would set aside the order prohibiting her from
    having access to her children.

[16]

Ms.
    S. contests the costs award of $2500 made against her by Lafreniere J. Costs
    are a discretionary matter and we see no basis for interfering with that order.
     While leave to appeal costs is granted, the appeal is dismissed.

R.A.
    Blair J.A.

J.
    MacFarland J.A.

Paul
    Rouleau J.A.


