


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. N.A., 2012 ONCA 128

DATE: 20120227

DOCKET: C54509

Laskin, Rosenberg and LaForme JJ.A.

BETWEEN

The Childrens Aid Society of Toronto

Respondent in the Appeal (Applicant)

and

N.A. and A.A.T.

Appellant (Respondents)

Linda Choi, for the appellant A.A.T.

A.A.T., in person

Charlotte Murray, for the respondent

Carolyn Leach, for the children

Heard: February 9, 2012

On appeal from the order of Justice Victor Paisley of the
    Superior Court of Justice, dated May 18, 2011, dismissing the appeal from the
    order of Justice Marvin A. Zuker of the Ontario Court of Justice, dated
    November 18, 2010.

By the
    Court:

BACKGROUND

[1]

The appellant mother is 36 years old; the appellant father is
    41.  Their two children are now 8 and 6 years of age.  The children have been
    under the care of the Childrens Aid Society of Toronto (the Society) since
    November 2007.  At that time, and continuing on to the present, the mother and
    father were divorced and living at separate residences
.

[2]

The Society first became involved with
    the family in August 2005.  On May 5, 2006 the Society apprehended the children
    and the father later placed the children into the Societys care on November
    12, 2007.  On that occasion the children were placed in a fost
er care
    home, which is the same home they continue to reside in
.

[3]

Throughout the 13 day trial
in the
    Ontario Court of Justice
the mother was represented by counsel who also
    represents her on this appeal.  The father has at all times represented
    himself.   On the second day of trial, the trial judge appointed the Office of
    the Childrens Lawyer to represent the children.  The mother did not attend the
    last three days of the trial
.

[4]

At trial, the Childrens lawyer supported an order placing the
    children in the care of the father subject to Society supervision on specific
    terms.  This was based on the childrens consistently expressed views and
    preferences.  In the alternative, the childrens lawyer supported an order of
    Crown wardship without access to permit the children to be adopted
.

[5]

On November 18, 2010, the trial judge
    decided that
the best interests of the children required that they be
    made crown wards without access
and placed for
    adoption.
It is to be noted that t
he children
    have not seen their parents since that order was made some 15 months ago
.

[6]

On November 24, 2010, both parents jointly
    appealed the November 18th order to the Superior Court of Justice.  For a
    variety of reasons, on May 16, 2011 their appeal was dismissed for want of
    prosecution.  While it is technically the decision to dismiss for want of
    prosecution that is being appealed to this court, all parties agreed that this
    court could consider the question of error in the original C
rown wardship order of November 18, 2010.
Putting the best interests of the children first, and
    given the need for an expeditious conclusion to these proceedings, we agreed to
    proceed in this fashion
.

[7]

Both parents seek to have the children placed in their joint
    care, with or without a supervision order.  Alternatively, they request that
    the children be placed with the father subject to Society supervision, with the
    mother to have access to the children at her home
.


[8]

The father is self-represented on this appeal, as he was at
    trial.  He has neither perfected his appeal nor filed any materials in support
    of his position.  It appears that he in effect adopts the legal arguments in
    the mothers factum and, with the assistance of an interpreter, advanced his
    position in oral argument
.

[9]

On appeal, counsel for the children takes the position that the trial
    judges decision was supported by the evidence, does not reflect any legal
    error, and is strengthened by the new evidence that was filed with the court. 
    At this time, the Childrens lawyer supports the Society in seeking that the
    appeal be dismissed and that the children be made Crown wards so that they may
    be placed in a permanent adoptive home.

ISSUEs

[10]

On the
    merits of the appeal, the appellants assert that the trial judge erred in
    concluding that the children could not be adequately protected by a supervision
    order.  They argue that he misconstrued some evidence, overemphasised other
    evidence, and failed to consider a number of relevant factors in arriving at
    his decision.

[11]

And
    finally, although this was not pressed in oral argument, the appellants submit
    that the trial judge failed to sufficiently explain why the children could not
    be returned to the parents care.

DISCUSSION

[12]

The
    custody decisions of trial judges are owed considerable deference by reviewing
    courts.  A trial judges decision will, therefore, not be interfered with
    unless there is an error in principle, a failure to consider a relevant factor
    or a consideration of an irrelevant factor, or a lack of factual support for
    the judgment.

The trial judges consideration of the evidence

[13]

The
    appellants raise numerous findings of fact by the trial judge, which they say
    reveal error on his part.  For example, they point to the finding that the
    father abused the mother and that the mother absconded to Montreal with one of the children.  In each instance they say that the trial judge either overemphasised
    evidence or failed to consider other relevant evidence.

[14]

We
    disagree.  In each of the findings particularized by the appellants - both in
    oral argument and in the mothers factum - the reasons reflect that the trial
    judge was very much aware of the relevant evidence.  The evidence is both
    referenced and reviewed by the trial judge in his reasons.

[15]

The real
    issue the appellants have with the trial judges references to the evidence is
    that he did not agree with their view that it weighed in favour of returning
    the children to their care.  This does not amount to error and does not form
    any basis on which to interfere with the trial judges decision.

[16]

In any event,
when setting out his reasons for making
    the children Crown wards, the trial judge was not obliged to discuss every
    piece of evidence he considered in arriving at his ultimate findings of fact.
The entire record, including the trial judges reasons
    for decision, informs this courts decision on appeal.  Ultimately, this court
    must assess whether the trial judge
s
    decision was consistent with the best interests of the children analysis
    required by the
Child and Family Services Act
,
R.S.O.
    1990, c. C.11
.

[17]

On our
    review of the record we conclude that the trial judge fulfilled his mandate. 
    Some of the more critical and compelling findings of fact made by the trial
    judge include that:

·

The parents could not provide a safe, stable and permanent plan
    for the children either jointly or separately.  It was the trial judges
    opinion that the volatile nature of their relationship, which included a
    history of domestic violence, weighed against the viability of any joint plan.

·

Each parent had demonstrated an inability to prioritize the
    children's interests above his or her own.  Neither parent had demonstrated any
    consistent ability to accept direction or support regarding the children's
    needs.

·

There was a continuing risk of harm to the children.  The
    children came into care with issues of basic neglect, including recurring
    illnesses that were not being treated effectively, an unclean house, and poor
    hygiene.   The risk of neglect continues and the children continue to be in
    need of protection.

·

The history of both parents, and in particular the mother,
    demonstrates non-compliance and conflict with authority, which reduces the
    value of any supervision order.

[18]

There was ample evidence for each of these findings and it
    was entirely open to the trial judge to decide that it was in the best
    interests of the children to be made crown wards without access.  He properly
    considered the evidence and applied the appropriate factors as required under
the
Child and Family Services Act
.

[19]

A review
    of the new evidence, which is not contested, does not alter this conclusion. 
    In fact the new evidence illustrates that certainty in their future is now
    critically important to these children.  The evidence reveals that the children
    are well nourished, healthy and coping well in care.  According to the
    childrens lawyer, their most pressing immediate wish is to know what their
    future holds.

[20]

The new
    evidence also discloses that the Society is confident that the children will be
    adopted and will remain together.  Indeed, it notes that there is at least one
    family that is open to adopting both.

The sufficiency of reasons

[21]

The
    appellants submit that the trial judges reasons insufficiently explain why the
    children cannot be placed with both parents.  While this was not pressed in
    oral argument, it can nevertheless be disposed of by way of brief comment.

[22]

To succeed the appellants must show that the deficiency in the
    reasons of the trial judge has
occasioned prejudice to the
    exercise of their right to an appeal.  In this case, the reasons have not.

[23]

As already
    noted, the trial judge reviewed all of the evidence in detail in his reasons. 
    He highlighted the parents volatile relationship with each other and with the
    Society, the history of domestic violence, and the multiple failed attempts to
    place the children with either parent under supervision as reasons why a
    supervision order would not protect the children in future.  The trial judges
    reasons for why the children cannot be placed in the care of either or both
    parents are sufficient.

DISPOSITION

[24]

The appeal
    of the decision of the Superior Court of Justice, dismissing the appeal for
    want of prosecution, is allowed. The appeal seeking to set aside the Ontario
    Court of Justice order of crown wardship without access, however, is dismissed.

Released:

FEB 27 2012                                    John
    Laskin J.A.

JL                                                    M.
    Rosenberg J.A.


H.S. LaForme J.A.


