



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: Bruce Grey Child and Family
    Services v. A.M., 2020 ONCA 525

DATE: 20200825

DOCKET:
C68184

Feldman, van Rensburg and
    Thorburn JJ.A.

BETWEEN

Bruce
    Grey Child and Family Services

Applicant (Respondent)

and

A.M.

Respondent (Appellant)

and

A.V.S.

Respondent

A.M., acting in person

Cory B. Deyarmond for the respondent, Bruce
    Grey Child and Family Services

Elizabeth McCarty and H. Jane Robertson for
    the respondent, Office of the Childrens Lawyer

Heard: July 17, 2020 by video conference

On appeal from the order of Justice
    Francine Van Melle of the Superior Court of Justice, dated January 29, 2020, with
    reasons reported at 2020 ONSC 515, affirming the final order of Hardman J. of
    the Ontario Court of Justice, dated December 13, 2018.

Thorburn J.A.:

A.

OVERVIEW

[1]

This is an appeal of an order of the Superior
    Court that affirmed child protection orders made by the trial judge.

[2]

The
appellant has been
    involved with the family since C. was about four years old and before R. was
    born. There were periods when he lived with both children and R.s
biological mother, A.V.S
. (R.s mother). When
    he didnt, he says he routinely visited them on weekends and helped the family
    in times of crisis.

[3]

The trial judge found that two brothers, R., now
    almost 12 years old, and C., now 19 years old, were in need of protection. She placed
    R. into extended care with the Bruce Grey Child and Family Services (the
    Society), with access to and by his brother, C. C. was placed in the appellant
    A.M.s care pursuant to a supervision order.

[4]

The trial judge did not order access to R. by his
    mother, or by the appellant.

[5]

The Office of the Childrens Lawyer (OCL)
    represented both children during the trial and represented R. on both appeals.
    C. was 18 at the time of the first appeal, making R. the sole subject of both
    appeals.

[6]

R. has been in and out of care since July 2012. R.
    and his brother C. were in the temporary care and custody of the Society from
    July 31, 2012 to October 11, 2012, and again from July 15, 2015 to July 24,
    2015. On July 24, 2015, the children were returned to the mother's care
    pursuant to a temporary order of the court. C. was placed with the appellant on
    November 18, 2015 and R. was placed in the care of the Society on December 18,
    2015 where he has been ever since.

This is well beyond the statutory time limit for remaining in the temporary
    care of the Childrens Aid Society, set out in s. 122 of the Act.

[7]

While both the appellant and R.s mother appealed
    the trial judges decision to the Superior Court, A.M. is the only appellant on
    this appeal.

[8]

The appellant does not dispute the decision to
    place R. in the Societys extended care so that he may be adopted by his
    current foster family, according to R.s wishes.

[9]

On this appeal, the appellant only seeks an
    order granting him access to R.

[10]

R.s mother addressed this court (not as an
    appellant) to say that she takes no issue with R.s adoption by his foster
    parents but supports the appellants request for access to R. She outlined her
    long and difficult struggle with mental illness and substance abuse, which she says
    she is working hard to overcome.

[11]

The Society takes the position that the
    appellant should not be granted access to R. This position is supported by the OCL.

[12]

Fresh evidence on appeal to the Superior Court
    and on this appeal includes statements from R. that he wishes to move forward
    with his adoption and does not wish the appellant or his mother to be granted a
    right of access to him.

B.

THE ISSUES

[13]

The following issues will be addressed:

1.

The appellants standing to appeal to the
    Superior Court of Justice;

2.

Whether the Superior Court judge erred in
    upholding the trial judges decision not to issue an order granting the
    appellant access to R.; and

3.

Whether this court should order access by the
    appellant to R. based on fresh or new evidence.

C.

ANALYSIS OF THE ISSUES

The First Issue: Standing

[14]

Section 104(2) of the
Child, Youth and
    Family Services Act,
S.O. 2017, c. 14, Sched. 1,
    (the Act),
provides that where a child is placed in a
    societys care and custody or supervision, any person may apply for access.

[15]

Further to that provision, the trial judge added
    the appellant as a party to the disposition hearing. The appellant was given an
    opportunity to put forward a plan of care for both R. and C. at that time and the
    court accepted his plan of care for C, subject to Society supervision and the
    terms and conditions set out by the trial judge.

[16]

At the same time, s. 121(1) of the Act
    specifically limits
who
may appeal to the Superior Court of Justice from
    a child protection order. It provides that
an appeal to the Superior Court
may
    only be brought by:

(a) the child, if the child is entitled to
    participate in the proceeding under subsection 79 (6) (childs participation);

(b) any parent of the child;

(c) the person who had charge of the child
    immediately before intervention under this Part;

(d) a Director or local director; or

(e) in the case of a First Nations, Inuk or Métis
    child, a person described in clause (a), (b), (c) or (d) or a representative
    chosen by each of the childs bands and First Nations, Inuit or Métis
    communities.

[17]

None of the parties raised before the Superior
    Court of Justice or this court the issue of the appellants standing to appeal
    to the Superior Court of Justice.

[18]

Instead, the issue was raised by this court
    prior to the hearing and the parties were requested to address it.

[19]

In argument, the appellant took the position
    that he had a right to appeal the decision denying him access to R. since R.
    was living with him before being taken into care, he was in
loco parentis
(or in the place of a parent to R.), and he prepared a parenting plan at the
    disposition hearing. In essence, his position is that he qualified to appeal
    under s.121(1)(b) as any parent of the child.

[20]

Neither the Society nor the OCL objected to the appellants standing on
    the first appeal, or before this court. Both took the position that in the
    circumstances of this case, it was in the childs best interests for the appeal
    to be decided on the merits.

[21]

The Act is silent on appeals to the Court of Appeal.

[22]

In the absence of any explicit statutory provision, the Court of Appeal
    has jurisdiction to entertain any appeal from a final order of a judge of the
    Superior Court pursuant to s.6(1)(b) of the
Courts
    of Justice Act
.

As a party to the appeal
    from the Superior Court order, the appellant has standing to appeal to this
    court. The issue therefore is only whether the appellant had standing on his
    appeal to the Superior Court of Justice.

[23]

Placing limits on who may appeal a child protection order is consistent
    with the purpose of the Act set out at s.1(1) to promote the best interests,
    protection and well-being of children.

[24]

Timely resolution is also important. Appeals significantly delay
    permanent placements such that, absent a close relationship to the child from
    the childs perspective, an appeal is generally not in the childs best
    interests. The Act refers at ss. 1 and 3 to a childs need for stable
    relationships within a family and the desirability of permanent plans. The
    need for timely resolution is also reflected in the prohibition against orders
    that will result in a child over 6 remaining in the temporary care and custody
    of a society for a period exceeding 24 months: s. 122(1)(b).

[25]

At the same time, any parent is entitled to appeal to the Superior
    Court and the definition of parent under s. 74(1) of the Act is expansive. It
    includes any
individual who, during the 12 months before
    intervention under this Part, has demonstrated a settled intention to treat the
    child as a child of the individuals family. It has been held to include
    persons such as foster parents:
G.(C.) v. H.(J.)
, 1989 CanLII 8899 (ONCA), leave to appeal refused, [1990] S.C.C.A. No.
    60.

[26]

On an appeal to the Superior Court of Justice from a child protection
    order, the court should explicitly consider whether the person appealing has
    standing. Timely resolution is important in the life of a young child. Party
    status at an earlier proceeding does not necessarily entitle a person to
    appeal. Rather, standing to appeal to the Superior Court of Justice under
    s.121(1) of the Act should be explicitly assessed at the time of the appeal to
    the Superior Court and always through the lens of the childs best interests.

[27]

In this case, given the positions of all the parties, the possibility
    that the appellant might have qualified to appeal to the Superior Court of
    Justice under an inclusive interpretation of parent, and the importance of
    timely resolution, it is in the childs best interests in this case, to accept
    that the appellant had standing to appeal to the court below and therefore to determine
    this appeal on the merits.

The Second
    Issue: Whether the Superior Court Erred in Upholding the Trial Judges Decision
    not to Issue an Order Granting the Appellant Access to R
.

[28]

R. has a long history of involvement with the Childrens
    Aid Society.

[29]

R. and his older brother, C. were apprehended in
    July 2012 and again in July 2015. Both children were initially returned to their
    mothers care. Shortly afterwards, C. was placed with the appellant. The
    Society re-apprehended R. in December 2015 and placed him in interim care.

The Trial
    Decision

[30]

At trial, the proceedings were bifurcated. At the
    first stage, the trial judge found that both children were in need of
    protection. At the second stage, the trial judge considered the appropriate
    disposition for the children. The appellant was added as a party to the trial
    and was permitted to participate in the disposition portion.

[31]

The appellant took the position that C. should
    remain with him but R. should be placed with his mother.

[32]

The trial judge rejected R.s mothers plan of
    care and ordered that C. remain in the appellants care (as he was almost 18 years
    old), but that R. remain with his foster family. Neither the appellant nor R.s
    mother was granted access to R.

[33]

The trial judge recognized that the appellant
    had had a relationship with R. since 2005 and that R.s position at trial was
    that his first choice was to be placed with the appellant and his brother C.
The trial judge described the relationship
    between R. and the appellant in this way:

There is no question but that R feels affection
    toward AM. While they do not have regular contact, during one time that they
    were together R was eager to give AM a hug and appropriate sharing of
    conversation happened

Throughout the trial, R has always had possible
    placement with AM on his list of preferences, be it ahead of his mothers plan
    or second to it.

The foster mother also said that, although she
    has never observed them interact in person, the way R talks about AM suggests a
    connection, caring relationship and positive interest between the two. It
    appears that at times R refers to him [as] Grandpa.

[34]

However, notwithstanding R.s stated wishes at
    that time, the trial judge ordered that it would not be in R.s best interests
    to be placed with the appellant.

[35]

The trial judge held that the appellant could
    not be trusted to put the childrens needs ahead of R.s mothers needs. She relied
    on the assessors conclusion that the appellant failed to protect R. from the
    unwanted chaos and conflict that the mother inflicted on them, by allowing R.s
    mother to visit without Society oversight against the terms of various court
    orders. These 2016 visits had traumatic consequences for C. On one occasion, R.s
    mother attempted to hang herself and on some others, she was clearly under the
    influence of alcohol or illegal substances.

[36]

The trial judge also found that R. has
    significant behavioural needs and requires community services that the
    appellant was not able to provide and oversee.

[37]

Although the assessor recommended some contact
    between the appellant and R. based on R.s stated fondness for the appellant, the
    trial judge held that there was no beneficial and meaningful relationship
    between them since the appellant had had no access to R. since R. was apprehended
    in 2015.

The Appeal to
    the Superior Court

[38]

Both the appellant and R.s mother appealed the
    disposition order to the Superior Court. The appeal judge held that the best
    interests of the child were paramount and that in this case, there was no error
    in making two different orders for the two children given that at the time of
    trial C. was 17 while R. was only 10 years old.

[39]

In R.s affidavit filed as fresh evidence in the
    appeal to the Superior Court, R. confirmed that he did not want to have access
    with A.M. or his mother and instead wished to be adopted by his foster family
    who expressed their desire to adopt him. In addition, the OCL, who represented him
    throughout, filed a letter from R. in which he asked the appellant to stop
    fighting for me.

[40]

The appeal judge held that there was no evidence
    led by either appellant suggesting errors in the trial judges orders. The
    appeal judge held that the appellants fresh evidence would not have affected
    the decision of the trial judge and dismissed the appeal.

[41]

The appeal judge was correct in finding no
    errors in the trial judges orders and in concluding that nothing in the fresh
    evidence on that appeal would have changed the appropriateness of those orders
    in respect of R.s best interests.

The Third Issue: Whether
    this Court Should Order Access by the Appellant to R. Based on the Fresh or New
    Evidence

[42]

The appellant claims as a new ground of appeal
    before this court that the trial judge erred in refusing to entertain
    allegations that the Childrens Aid Society failed to provide full disclosure
    by withholding a 2012 videotaped statement in which R.s brother C. alleged he
    was abused by another child in foster care.

[43]

There appears to be no videotape that exists.
    Even if there were, it is not relevant to R. because the allegations relate to
    C., not R., and the tape is over eight years old and has little bearing on R.s
    present best interests.

[44]

The appellant also claims he was prejudiced as
    the appeal judge did not find him in
loco parentis
. I disagree. Assuming
    without deciding that the appellant is
in loco parentis
, he was not
    prejudiced since his appeal was heard and decided on the merits based on R.s
    best interests as required by the Act.

[45]

On this appeal, the OCL also filed new evidence
    in the form of an affidavit from one of its clinicians advising that R.
    considers his foster family his family now, and he wants to be adopted by them.
    According to this affidavit, R. really does not want to see [the appellant]
    because he was not a relative to him and because he is trying to put his
    former life behind him.

[46]

The best interests of the child require the
    court to consider the childs views and wishes and fresh evidence should be
    admitted as evidence of such:
CYFSA,
s. 74(3) and
Childrens Aid
    Society of Waterloo v. JLS
, 2018 ONSC 7412, at paras. 13-16.

[47]

Given the importance of the childs best
    interests, this evidence is admitted.

[48]

There is nothing in the fresh or new evidence
    that changes the appropriateness of the trial judges initial orders with
    respect to R.s best interests.
The fresh evidence
    demonstrates that, while R. is fond of the appellant, over a now extended
    period, he has expressed a preference to move forward with his adoption without
    an ongoing relationship with the appellant.

[49]

We also note that in oral argument, counsel for
    the Society confirmed that absent an access order, R. may on his own initiative,
    choose to have contact with the appellant and/or his mother in the future. That
    has been explained to him, and at the moment he does not wish to do so.

D.

CONCLUSION

[50]

For the above reasons, I would dismiss the
    appeal. I would make no order as to costs.

Released: August 25, 2020 (K.F.)

J.A.
    Thorburn J.A.

I
    agree. K. Feldman J.A.

I
    agree. K. van Rensburg J.A.


