



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: Huron-Perth Children's Aid Society
v. J.L., 2019 ONCA 809

DATE: 20191009

DOCKET: C67087

Lauwers, Fairburn and Zarnett
JJ.A.

BETWEEN

Huron-Perth Childrens Aid Society

Applicant (Respondent)

and

J.L
.

D.L.

N.M.O.

O.C.L.

Respondents (
Appellant
/
Respondents
)

Brigitte Gratl, for the appellant J.L.

D.L., acting in person

Anne-Marie Tymec, for the respondent
Huron-Perth Childrens Aid Society

Elizabeth McCarty and Ward Brownell,
for respondent O.C.L. (Office of the Childrens Lawyer)

Heard: September 24, 2019

On
appeal from the judgment of Justice Pamela Hebner of the Superior Court of
Justice, dated May 21, 2019, allowing the appeal in part from the orders of
Justice Robert W. Rogerson of the Ontario Court of Justice, dated January 20,
2017.

REASONS FOR DECISION


I.

Overview

[1]

Together J.L. and D.L. (the parents) have four
children, currently 6, 9, 11 and 12-years of age. (D.L. is the step-father to
the 12-year-old.) These four children have been in the legal care of the
Huron-Perth Childrens Aid Society (the Society) since June 6, 2014 and are
the subject of this appeal.

[2]

A bifurcated trial took place before the Ontario
Court of Justice, beginning in December 2014 and ending in October 2016. On
April 28, 2015, the trial judge determined that the children were in need of
protection pursuant to s. 37(2)(b)(i) and (ii) of the then
Child and Family
Services Act,
R.S.O. 1990, c. C.11
.
On December 19, 2016, the trial judge made an order for the Crown wardship of
all four children with no access to the parents.

[3]

The parents appealed from the Crown wardship
order, requesting the return of the children to their care. Although they also
originally appealed from the finding that the children were in need of
protection, they later abandoned that aspect of their appeal. On May 21, 2019, the
appeal judge issued an order granting that appeal, but only to the extent of
providing access between the parents and their children.

[4]

The parents now appeal from the decision
upholding the Crown wardship (now extended care) order and from the access
order.


II.

Adjournment Request

[5]

The parents asked for an adjournment of the
appeal. We dismissed that request with written reasons to follow. These are
those reasons.

[6]

J.L. claims that she has received inappropriate
text messages from two Society workers. She says that the content of those
messages demonstrate an animus on the part of the workers toward the parents.
J.L.s lawyer argues that the messages reveal that the Society workers have
tried to intimidate her. For instance, some of the messages suggest that the
parents are unfit to parent, should not waste the courts time, and should stop
resisting the wardship order.

[7]

The impugned workers deny that they are the
authors of those messages. The Society reported the matter to the police,
asking that there be an investigation into what they assert is a fraud that has
compromised their workers reputations. One of the workers voluntarily
relinquished her phone to her supervisor to be locked away so that she could
not be blamed for texts originating from it. After this occurred, J.L. asserted
that messages from the worker were coming to her from another number that the
Society knows nothing about.

[8]

The parents say that this appeal should be
adjourned pending the outcome of the police investigation. We do not agree.

[9]

This matter has been going on for a very long
time. At this point, the children have been in care for over five years. As the
Office of the Childrens Lawyer (OCL) points out, the children are in need of
some certainty in their lives. If this matter were to be adjourned pending
completion of a police investigation, there is no telling how long the matter will
take to resolve. We note that the parents have not reached out to the police to
determine the timing of any such investigation or to offer their cooperation in
order to move the investigation along expeditiously.

[10]

Moreover, in our view, whatever the result of
any police investigation, it would not affect the result of this appeal. As the
Society submits, 14 Society workers have been involved with the family from the
outset. Only two are implicated in the suggestion of inappropriate/false
messages. One of these two impugned workers only became involved with this
family quite recently, long after the Crown wardship (now extended care) order
was made.

[11]

In our view, even if the two impugned workers
were discredited as the parents claim, we are satisfied that it would not
affect the outcome of this appeal. There was ample evidence in addition to what
was provided by these two workers to support the finding that the children were
in continuing need of protection. The appropriateness of the extended care
order is also independently supported.  The children are all together in a home
in which they have been thriving since 2015, while maintaining a relationship
with their biological parents.

[12]

An adjournment would clearly not be in these
childrens best interests.

[13]

For these reasons, we denied the request to
adjourn the appeal.


III.

Grounds of Appeal

[14]

J.L. raised a number of grounds of appeal. D.L.
adopted her submissions on each of those grounds. D.L. also raised a ground of
appeal specific to his own concerns.

(1)

Whether the Appeal Judge Took the Fresh Evidence
into Account

[15]

The parents suggest that in upholding the Crown
wardship order, the appeal judge erred by failing to take into account fresh
evidence that had been filed on appeal. In particular, the parents placed
before the appeal judge evidence that J.L. had given birth to a fifth child who
remains in her care. In addition, there was fresh evidence about the parents access
visits with the children who had been placed in the care of the Society. The
fresh evidence suggested that J.L. was in a better position to care for all of
the children at the time of the appeal.

[16]

We do not agree that the appeal judge erred in
how she treated the fresh evidence.

[17]

Read as a whole, it is clear that the appeal
judge took all fresh evidence into account. The fact is that there was nothing
about that evidence that persuaded or was capable of persuading the appeal
judge that it was in the best interests of the children to be returned to their
parents.

[18]

Although the fresh evidence showed that J.L. had
another child in her care  one who she is now parenting while living with her
parents, after having separated from D.L.  the appeal judge concluded that in
light of all of the other relevant evidence, the facts as elicited through the
fresh evidence were insufficient to justify setting aside the Crown wardship
order. Instead, she concluded that this evidence, along with the rest,
supported a finding that the relationship between the parents and children was
meaningful and beneficial and that the appeal should be allowed to the extent
of overturning the no access order. We see no reason to interfere.

(2)

The Childrens Wishes

[19]

The parents submit that the children have
clearly stated their wishes to be returned to their parents. We do not agree
that this position accurately captures the childrens wishes, either as they
were expressed in the past or as they are currently expressed.

[20]

Because the best interests, protection and
well-being of the children is paramount according to the legislation, we admit
all of the evidence relevant to the childrens interests on this appeal,
including that filed by the OCL. As the childrens legal representative, the
OCL has a duty to attend to their interests. In fulfilling that duty, the OCL
may call evidence and make submissions on behalf of the children:
Ludwig v.
Ludwig
, 2019 ONCA 680, at para. 69.

[21]

The OCL provided an affidavit from a clinical
agent who canvased the recent views of the children.

[22]

The three eldest children have clearly expressed
their preference to remain where they are living, all together, in a single
foster home. Among other things, they speak of feeling safe, being taking care
of, getting to play sports, attending school regularly, having friends, and
wanting to live with their foster mother forever.

[23]

The youngest child who is six years of age has
difficulties communicating. Although communication was attempted through the
use of drawings, it was challenging to gain a sense of his views and
preferences. Even so, we are satisfied that based on his progress after being
placed within care, his best interests are currently being promoted.

[24]

It is clear that the children have thrived since
they have been in the Societys care. We would not give effect to this ground
of appeal.

(3)

Alleged Errors of Fact

[25]

The parents claim that the trial judge made
numerous errors of fact, including those relating to the childrens actual
condition, whether they were sent to school with insufficient food, the length
of time that they had head lice, their level of hygiene, and their lack of
supervision.

[26]

The appeal judge carefully considered each
alleged error of fact. She applied the correct test, considering not only
whether there was a palpable error, but whether any error was overriding in
nature. Although she concluded that the trial judge erred in two factual
findings, specifically relating to how the parents dealt with one childs
constipation and another childs developmental difficulties, the appeal judge
was satisfied that the factual errors were not overriding in nature.

[27]

We see no error in the appeal judges approach
on this point, or in her conclusion that there was a plethora of evidence to
support the ultimate conclusion that the parents do not possess the necessary
parenting ability to provide for the physical, mental and emotional needs of
the children.

(4)

The Allegation of Sexual Impropriety

[28]

D.L. raises a concern that the trial judge
improperly considered a dated allegation against him of sexual impropriety. He
says that he cannot recall the alleged event and that, in any event, the
alleged event occurred when he was a youth and is covered by the
Youth
Criminal Justice Act
, S.C. 2002, c. 1. He argues that his constitutional
rights have been infringed by the use of that information.

[29]

We see no basis upon which this ground of appeal
can succeed. Although the trial judge mentioned the allegation of sexual
impropriety, his reasons in no way turned on that issue. Moreover, the appeal
judge specifically distanced herself from that information. It played virtually
no role in the decision-making process.


IV.

Conclusion

[30]

The children went into the Societys care many
years ago now. By all accounts they are thriving. That was not the case when
they were in their parents care. They have clearly stated their wishes, which
include keeping in contact with their parents, while at the same time staying
within the safe and caring environment they have come to know as home. The
appeal judges order properly addressed the childrens best interests, kept
them within the stability of their home, and allowed them to retain a
connection to their heritage and parents. That order is responsive to the
childrens needs.

[31]

Having regard to all of the circumstances,
including the fresh evidence filed on appeal, we see no error in the appeal
judges approach. We would not interfere with her order.

P. Lauwers J.A.

Fairburn J.A.

B. Zarnett J.A.


