



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. V.D., 2016
ONCA 959

DATE: 20161220

DOCKET: C62218

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

Childrens Aid Society of Toronto

Applicant (Respondent)

and

V.D. and P.V.

Respondent (Appellant)

V.D., acting in person

P.V., acting in person

Lisa Hayes, for the respondent

Heard: December 12, 2016

On appeal from the judgment of Justice Nancy L. Backhouse
of the Superior Court of Justice, dated May 10, 2016, with reasons reported at
2016 ONSC 3297.



By the Court:

Introduction

[1]

The appellant V.D. is the biological mother of P.A.V., a young boy born
on January 4, 2008.  The appellant P.V. is P.A.V.s biological father.  On
December 11, 2014, Weagant J. of the Ontario Court of Justice (the trial
judge) found P.A.V. to be in need of protection due to neglect under s.
37(2)(b) of the
Child And Family Services Act
, R.S.O. 1990 c. C.11
(the Act).  P.A.V. has been in the temporary care of the respondent, the
Childrens Aid Society of Toronto (the CAS), ever since.  Although the appellants
now dispute the trial judges finding of severe neglect of P.A.V., no party
appealed the trial judges protection ruling.

[2]

By order dated July 29, 2015, Weagant J. made P.A.V. a Crown ward with
no access to the appellants, pursuant to s. 57(1)(3) of the Act.  The
appellants appealed to the Superior Court of Justice, asserting that the trial
judge had misdirected himself and erred in law in numerous respects.  On May
10, 2016, Backhouse J. of the Superior Court (the appeal judge) dismissed
their appeal.

[3]

The appellants now appeal to this court from the appeal judges decision.

Preliminary Matters

[4]

At the outset of oral argument at the appeal hearing, V.D., supported by
P.V., sought various relief, including: i) a further adjournment of the appeal
to afford the appellants time to review the transcripts of the proceeding
before the appeal judge, which they claimed not to have received; ii)
additional time for argument of the appeal, namely, 20 hours for V.D. and 20
hours for P.V.; iii) the appointment of a five-person panel of this court to
hear the appeal; iv) the granting of leave to appeal to the Supreme Court of
Canada from the appeal judges decision; and v) in the case of P.V., an order
removing him as a named appellant on this appeal to permit him to commence his
own appeal.

[5]

The panel declined to grant any of the requested relief, for several
reasons.  First, none of the requested relief was sought on proper materials
served and filed in accordance with the applicable rules of court; second, and
importantly, no proper justification for any of the requested relief was
advanced by the appellants; third, by order of this court dated October 24,
2016, the argument of this appeal on December 12, 2016 was made peremptory to
the appellants as an essential term of the adjournment of the appeal then
granted at the appellants request; fourth, also by this courts October 24,
2016 order, a procedure was set for the service on the appellants at a
designated location of all materials and transcripts related to this appeal,
counsel for the CAS confirmed proof of service of the transcripts in accordance
with that court order, and the transcripts in question had been filed with this
court; and fifth, some of the relief sought (for example, the appointment of a
five-person panel to hear the appeal) was unavailable in any event.  In all
these circumstances, the granting of the appellants adjournment and other
requests for procedural relief was neither warranted nor appropriate.

Merits of Appeal

[6]

For the following reasons, we also conclude that the appeal must be
dismissed on the merits.

[7]

First, the appeal judge considered each of the appellants grounds of
appeal in detail.  She provided cogent and comprehensive reasons (20 pages) for
her rejection of them.  In particular, after alluding to the pertinent evidence
before the trial judge, including the expert evidence, regarding P.A.V.s
needs, V.D.s parenting capacity and her proposed plan of care, and the trial
judges conduct of this lengthy trial (35 days), the appeal judge held:

1)

there was no merit to the appellants multiple allegations of bias and
procedural unfairness against the trial judge;

2)

contrary to the appellants contention, Dr. Jean Wittenberg (a staff
psychiatrist at the Hospital for Sick Children and head of that institutions
Infant Psychiatry Program who conducted a third parenting capacity assessment
in respect of V.D.) did not usurp the trial judges role or function.  Rather,
the trial judges decision to make P.A.V. a Crown ward and to terminate
parental access was his alone, based on the totality of the evidence at trial;

3)

it was open to the trial judge on the evidence to conclude, as he did, that
continued parental access was not in P.A.V.s best interests, that the
appellants had not satisfied their onus of demonstrating that access would
benefit P.A.V. once he became a Crown ward, that V.D.s inability to control
her conduct, including her harassing behaviours, demonstrated a present and
continuing impediment to permanency planning for P.A.V., and that V.D.
routinely ignores directions and rules regarding P.A.V. with which she
disagrees; and

4)

there was no basis on the record to conclude that the trial judge failed
to consider whether P.A.V. could be returned to V.D.s care or whether it was
in P.A.V.s best interests to have a continuing relationship with the
appellants.  To the contrary, the trial judges reasons confirm that he
carefully considered these central issues and that his findings were supported
by the evidence he accepted.

[8]

We see no error in the appeal judges holdings or in her reasoning.  Her
findings, and those of the trial judge, attract considerable deference from
this court: see
C. (G.C.) v. New Brunswick (Minister of Health and
Community Services)
, [1988] 1 SCR 1073;
Van de Perre v. Edwards
,
2001 SCC 60, [2001] 2 S.C.R. 1014.

[9]

Further, the appellants have been unable to point to any palpable and
overriding error or any reversible error of law in the appeal judges
decision.  For example, their claim that the trial judge, and the appeal judge
in turn, failed to consider the positive aspects of V.D.s relationship with
P.A.V. and her proposed plan of care for him are belied by the trial judges
and the appeal judges reasons.  Those reasons make clear that the evidence of
V.D.s relationship with and her conduct concerning her son, and the best
interests of P.A.V., were at the forefront of the trial judges analysis of the
issues and his evaluation of the evidence.

[10]

Further, while the appellants maintain that there was no valid final
order by the trial judge before the appeal judge, that the order contained in
the appeal hearing materials is illegal and false or a forgery, and that
Dr. Wittenbergs report was altered or fabricated, they adduced no evidence
in support of these serious allegations.  There is simply no evidentiary
foundation on the record before this court to support these bald assertions.

[11]

Finally, to the extent that the appellants renew their challenge to the
trial judges decision based on the arguments advanced by them before the
appeal judge, those arguments, as we have said, were fully considered by the
appeal judge, and rejected, for cogent and clear reasons.

[12]

In the end, we see nothing in this record to support any allegation of
procedural unfairness or any reversible error by either the trial or the appeal
judge.

Disposition

[13]

P.A.V. has been in the care of the Society since May 16, 2011  about
five and one-half years.  He will be nine years of age in about three weeks.  The
trial judges findings about the nature and extent of the neglect that P.A.V.
experienced over a lengthy period while in V.D.s care, his needs and the type
of parenting that he requires to meet those needs were amply supported by the
evidence at trial.  The lengthy litigation in this case has prevented
permanency and long-term stability in P.A.V.s life and precluded adoption
efforts.  We agree with the CAS that closure should be brought to this
unfortunate chapter in P.A.V.s life and that he should be placed for adoption
without further delay.

[14]

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

E.A. Cronk J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


