Catholic Children’s Aid Society of Hamilton-Wentworth v. G. (J.), [1996] 90 O.A.C. 5 (C. just.)

  • Document:
  • Date: 2018

Indexed as:

Catholic Children’s Aid Society of Hamilton-Wentworth v. J.G.

Between

The Catholic Children’s Aid Society of Hamilton-Wentworth, respondent, and

J.G., applicant

[1996] O.J. No. 1394

90 O.A.C. 5

23 R.F.L. (4th) 79

1996 CarswellOnt 1428

62 A.C.W.S. (3d) 731

File No. D/450/94

Ontario Court of Justice (General Division) Divisional Court – Hamilton, Ontario

White, Feldman and Fedak JJ.

Heard: February 12, 1996.

Judgment: April 22, 1996.

(29 pp.)

Guardian and ward — Public trustee or guardian — Child or adult in need of protection, permanent appointment — Best interest of child — Parenting abilities of mother.

This was an appeal of a custody order. Pursuant to the order, the appellant’s child was made a Crown ward. The appellant had an alcohol addiction which compromised the care of her child. Following a long investigation by the respondent Children’s Aid Society, the child was placed in a foster home. The appellant frequently visited her child while intoxicated. She also exhibited delusional behaviour. The Society became increasingly concerned and obtained an order allowing the child to be put up for adoption. The Society held that the appellant’s addiction was completely out of control and she would never be able to properly care for the child. The appellant refused to enter a rehabilitation program. She believed that she no longer had an alcohol addiction.

HELD: The appeal was dismissed. The appellant was addicted to alcohol. Her denial of her problem and refusal to undertake a rehabilitation program significantly compromised her ability to care for her child. The trial judge based her decision on the best interest of the child. This was the relevant test and therefore, the judge did not err.

Statutes, Regulations and Rules Cited:

Child and Family Services Act, R.S.O. 1990, c. C.11, s. 1(1), 37(3), 57.1, 65(3), 69(1), 70(1), 69(6), 140(2)(c).

Counsel:

Catherine Cassidy, for the respondent. J.G., appearing in person.

 

Reasons for judgment were delivered by White J., concurred in by Feldman J. Separate reasons were delivered by Fedak J.

    1. WHITE J.:– This is an appeal by J.G. [Ed. note: hereafter referred to as J.G.(1)]  , the mother of the child,
      J.G. [hereafter referred to as J.G.(2)], from an order made by Wallace J. in the Unified Family Court, at Hamilton. In the order, J.G.(2) was made a Crown ward without access pursuant to s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”). J.G.(1) in the appeal, asks the court to set aside the order of Wallace J. and make an order that J.G. be returned to the custody of herself and her husband W.T. Alternatively, J.G.(1), as appellant, asks that there be a new trial on whether J.G.(2) continues to need protection, and if so, what order is necessary and in the best interest of the child.
      THE FACTS
    2. J.G.(2) was born on February 1, 1991, of J.G.(1) and Mr. T.B. who never married. She is in her forties and she has had three other children of a previous marriage, those children being T., P. and T. and P. are now adults and S. is in her teens and resides with her father.
    3. The circumstances that led to the order of Wallace J. resulted from J.G.(1)’s illness, an addiction to alcohol. In May 1991 when J.G.(2) was only three months old, the Catholic Children’s Aid Society (the “Society”), received reports expressing concern about J.G.(1)’s parenting abilities, in regard to J.G.(2), because of her abuse of alcohol. The Society became engaged in dealing with J.G.(1), in respect of her parenting of J.G.(2), related to her abuse of alcohol in the periods May 1991 to July 1991, and July 1991 to November 1991. On March 3, 1992, the Society again became engaged in the matter because of a specific incident and has remained engaged from that time to the present. J.G.(1) was found in an intoxicated state in a motel room with J.G.(2). She was permitted to return home with the child on the condition that her son T. stay with her. J.G.(1) continued to abuse alcohol resulting in J.G.(2) being apprehended by the Society and being placed in the care of J.G.(1)’s sister, M.M.
    4. The Society commenced a protection application which was scheduled to be heard on March 9, 1992. It asked that J.G.(2) be placed with M.M. for a period of three months subject to the Society’s supervision. The process was adjourned to April 1, 1992, with an interim order being made placing
      J.G. with M.M. On March 25, 1992, J.G.(1) removed J.G.(2) from M.M.’s home and took him to British Columbia. J.G.(2) was later returned to Ontario by child protection authorities and was placed in foster care. J.G.(1) returned to Ontario.
    5. On April 22, 1992, Mendes da Costa J. made an order on consent making J.G.(2) a Society ward until June 22, 1992, with supervised access to J.G.(1), at the discretion of the Society. The Society brought a status review application and on June 10, 1992, Van Duzer J. made an order, on consent, placing J.G.(2) in the care of J.G.(1), subject to the supervision of the Society, the order to be effective until September 9, 1992. A condition of that order was that J.G.(1) was not to consume alcohol and was to take treatment for alcoholism. On September 9, 1992, a further status review application was commenced. After the commencement of the hearing of that application, the Society received information that had been reported to the Children’s Aid Society of Hamilton-Wentworth in August 1992. J.G.(1)’s family physician had reported three instances of J.G.(1) being intoxicated. The application was adjourned for a settlement conference.
    6. Between November 4 and November 6, 1992, the Society received reports that J.G.(1) was drinking heavily and that the care of J.G.(2) was being severely compromised. J.G.(2) was apprehended by the Society on November 6, 1992, and placed in a foster home in which he currently resides. J.G.(1) had access to J.G.(2)
    7. On October 12, 1993, the Society amended its application to ask the court that J.G.(2) be made a Crown ward, without access being provided to J.G.(1) in order to allow J.G.(2) to be placed for adoption. The amendment was sought by the Society because of J.G.(1)’s continued abuse of alcohol. She appeared intoxicated on six of her visits with J.G.(2) since November 1992. Such visits had to be cancelled or terminated early. On at least nine other visits to J.G.(2), J.G.(1) smelled of alcohol.
    8. J.G.(1) exhibited delusional behaviour on a number of occasions after November 1992. That behaviour caused the Society to express concern about J.G.(1)’s ability to keep a child safe.
    9. J.G.(1) had many opportunities to receive treatment for alcoholism. Attempts to treat her alcoholism have been unsuccessful. Dr. Martina Power of Homewood Health Centre, a person with expertise in the assessment and treatment of addictions, gave evidence at the hearing before Wallace
      that J.G.(1) minimized her addiction and was in denial, and did not show any insight into her addiction. Longer term treatment was recommended for J.G.(1) by Dr. Martina Power but she refused to accept that treatment and did not attend appointments in that regard. Without this treatment Dr. Power said that Mrs. J.G.(1) would be unlikely to recover from her addiction to alcohol.
    10. J.G.(2)’s father visited him on regularly scheduled access visits until June 1993. These visits were successful and the Society was giving consideration to increasing the father’s access to J.G.(2), however on June 10, 1993, J.G.(2)’s father, on being advised of this, left for British Columbia the following day without informing the Society.
    11. The Society was in telephone contact with B. in July 1993, but since that time it has not received any enquiries from him in respect of J.G.(2)’s care, nor has he presented any plan for J.G.(2)’s care.
    12. At the time of the status review hearing W.T.’s evidence was that he did not think that J.G.(1) was an alcoholic. He had seen J.G.(2) four or five times. His parenting capabilities were unknown.
    13. J.G.(1)’s family has been in contact with her since J.G.(2)’s birth but they have not been able to control her drinking. The family tends to withdraw when she has been drinking and becomes difficult.
    14. Wallace J., in coming to her decision to make an order for the Crown wardship of J.G.(2), relied essentially upon the above facts. On this appeal, J.G.(1) sought to introduce the following new evidence:
      1. her marriage to W.T. in July 1995,
      2. that alcohol is no longer a negative factor in her life,
      3. her life is stable,
      4. W.T. intends to adopt J.G.(2),
      5. the Society has not found suitable adoptive parents for J.G.(2),
      6. J.G.(2) is still bonded to J.G.(1), and,
      7. J.G.(1) continues to have the support of her family.
    15. The Society’s position on the fresh evidence is that it is really not fresh evidence and that essentially it was, in any event, considered by the trial judge.
    16. In Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.) [1994] 2 S.C.R. 165, Madam Justice L’Heureux-Dubé states at p. 190:
      After reviewing the new evidence sought to be introduced before us, there is mo doubt that it meets the test for admission. In particular, it could not have been adduced before, is highly relevant in that it enables the Court to make determinations on an accurate picture of the situation at hand, is potentially decisive as to S.M.’s best interests and is credible. In addition, the evidence is uncontroverted and bridges the gap between the evidence submitted before the court of Appeal in May 1993 and the present situation
    17. The fresh evidence sought to be admitted by J.G.(1) for the purpose of the appeal, is not really significantly different from the evidence that was before the trial judge. No fresh evidence has been presented to the effect that J.G.(1) has received successful treatment for her alcoholism. Indeed, during the hearing of the appeal she stated that she could not promise to refrain from drinking alcohol.
    18. The overriding concern evidenced in Wallace J.’s reasons would appear to be that J.G.(1)’s parenting potential for J.G.(2) is so compromised by her addiction to alcohol, absent J.G.(1)’s admission that she is an alcoholic in need of treatment and absent her willingness to accept continuing treatment for alcoholism, (such as was prescribed by Dr. Martina Power in her evidence at the trial) that the child continues to need protection. The fresh evidence does not add to the evidence that was before the trial judge on this score one iota. That evidence does not reduce the likelihood of J.G.(2) being at unpredictable risk, related to his mother’s alcoholism if he is returned to her care.
    19. I therefore agree with the Society’s position in respect of the fresh evidence that the issues implied in the fresh evidence were really fully explored by Wallace J. at trial.
    20. The essential position of J.G.(1) is that the new life she has started resulting from her marriage to W.T., enables her to cope with the parenting obligations in respect of J.G.(2), and that the court would not be exposing J.G.(2) to undue risk by returning J.G.(2) to her, even though she refuses to acknowledge that she is an alcoholic, and even though she refuses to undertake to abstain from alcohol if J.G.(2) is returned to her.
    21. The position of the Society on the appeal is that the order of Wallace J. was a reasonable order on the facts and was for the welfare of J.G.(2), that J.G.(2) is now five years of age and should be placed in a permanent adoptive home soon, while still young enough to be able to bond with an adoptive family.
      THE ISSUES
    22. The issues specifically raised by J.G.(1) in the appeal are:
      1. Did the trial judge err in failing to address the issue of whether J.G.(2) remained “in need of protection” at the time of the status review hearing?
      2. Did the trial judge err in concluding that J.G.(1) was an alcoholic at the time of trial, and that her alcohol consumption at that time jeopardized the safety of J.G.(2) in light of evidence to the contrary provided by J.G.(1) and her witnesses?
      3. Did the trial judge err in ordering that J.G.(2) be made a Crown ward without access or were there less restrictive options which could have been considered?
      4. Did the trial judge err in concluding that J.G.(1)’s alcoholism could not be rectified within a reasonably foreseeable time not exceeding two years?

      RELEVANT STATUTORY PROVISIONS

    23. The CFSA is the governing legislation in child protection proceedings. The provisions relevant to an appeal from a status review are as follows:
      • 64. (1) This section applies where a child is the subject of an order for society supervision, society wardship or Crown wardship under subsection 57(1).
      • An application for review of a child’s status may be made on notice to the society by,
        1. the child, where the child is at least twelve years of age;
        2. any parent of the child, subject to sub-section (5);
        3. the person with whom the child was placed under an order for society supervision; or
        4. where the child is an Indian or a native person, a representative chosen by the child’s band or native community.
        5. 65.-(1) Where an application for review of a child’s status is made under section 64, the court may, in the child’s best interests,
        6. vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;
        7. order that the original order terminate on a specified future date; or
        8. make a further order or orders under section 57.
      • Where a child has been made a Crown ward under paragraph 3 of subsection 57(1), the court shall not make an order for society
      • wardship under subsection (1).
        Before making an order under subsection (1), the court shall consider,

        1. whether the grounds on which the original order was made still exist;
        2. whether the plan for the child’s care that the court applied in its decision is being carried out;
        3. what services have been provided or offered under this Act to the person who had charge of the child immediately before intervention under this Part;
        4. whether the person is satisfied with those services;
        5. whether the society is satisfied that the person has co-operated with the society and with any person or agency providing services;
        6. whether the person or the child requires further services
        7. whether, where immediate termination of an order has been applied for but is not appropriate, a future date for termination of the order can be estimated; and
        8. what is the least restrictive alternative that is in the child’s best interests.
    24. The factors to be considered in the “best interests of the child” test are addressed in s. 37(3). Section 57 sets out the types of orders that may be made and considerations in making those orders:
      1. 57.-(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child’s best interests:
      2. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve months.
      3. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.
      4. That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71(1), and be placed in the care of the society.
      5. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.
      6. In determining which order to make under subsection (1), the court shall ask the parties what efforts the society or another agency or person made to assist the child before intervention under this Part.
      7. The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that less restrictive alternatives, including non-residential services and the assistance referred to in subsection (2),
        1. have been attempted and have failed;
        2. have been refused by the person having charge of the child; or
        3. would be inadequate to protect the child.
      8. Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (2), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.
      9. (6) The court shall not make an order for Crown wardship under paragraph 3 of subsection (1) unless the court is satisfied that the circumstances justifying the order are unlikely to change within a reasonably foreseeable time not exceeding twenty-four months so that the child can be returned to the care of the person who had charge of him or her immediately before intervention under this Part.
      10. Where the court makes a supervision order under paragraph 1 of subsection (1), the court may impose reasonable terms and conditions relating to the child’s care and supervision on,
        1. the person with whom the child is placed or to whom the child is returned;
        2. the supervising society;
        3. the child; and
        4. any other person who participated in the hearing.
    25. In respect to an appeal the following provisions are relevant:
      1. 69.-(1) An appeal from a court’s order under this Part may be made to the Ontario Court (General Division) by,
      2. (6) The court may receive further evidence relating to events after the appealed decision.
    26. A further provision of relevance is:

70.-(1) Subject to subsection (3), the court shall not make an order under this Part that results in a child being a society ward for a continuous period exceeding twenty-four months.

DISCUSSION OF ISSUES AND THE LAW

                      1. Did the trial judge err in failing to address the issue of whether J.G. remained “in need of protection” at the time of the Status Review hearing?
                      • In Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.) [1994] 2 S.C.R. 165 L’Heureux-Dubé J. stated at p. 200:

The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time.

[Emphasis in original.]

                      • In her reasons for judgment the trial judge, in determining the best interests of the child, stated

with respect to s. 37(3)12:

The child was in need of protection when he was apprehended. He was in the care of a loving, but unwell mother who was unable to meet his needs. She continues to be loving, but she continues to be unwell and she has been unable to address her illness. …

                      • Therefore, I am satisfied that the trial judge, on the issue that was before her, addressed the issue of whether J.G.(2) continued to be in need of protection and indeed found that he continued to be in that state.
                      1. Did the trial judge err in concluding that J.G.(1) was an alcoholic at the time of the trial and that her alcohol consumption at that time jeopardized the safety of J.G.(2) in light of contradictory evidence provided by J.G.(1) and her witnesses?
                      • The trial judge had before her expert evidence that J.G.(1) had been diagnosed as an alcoholic and had not had success in dealing with her illness. J.G.(1) had been involved in a number of treatment programmes that were unsuccessful because she denied, and continues to deny that she has a problem with alcohol abuse.
                      • Evidence given by the members of J.G.(1)’s family before the trial judge, indicated that they do not comprehend the seriousness or significance of her alcohol abuse. Her husband testified that they had had arguments regarding her drinking habits. The trial judge stated that neither J.G.(1) nor her family understood that she must refrain from the consumption of alcohol.
                      • There was evidence before the trial judge sufficient to establish that J.G.(1)’s alcoholism and her denial that she had a problem with alcoholism seriously compromised her parenting skills and jeopardized the safety of J.G.(2).
                      1. Did the trial judge err in ordering that J.G.(2) be made a Crown ward without access, or were there less restrictive options which could have been considered?
                      • In Children’s Aid Society of Peel v. W.(M.J.) (1995), 23 O.R. (3d) 174 (C.A.) Osborne J.A. recognized that the CFSA has a least restrictive alternative mandate. Once it has been established on a status review that the child continues to be in need of protection and court intervention is necessary, the court must consider the least restrictive alternatives consistent with the child’s best interests. He states at p. 190:

… [I]n my view, there is an obligation on a parent proposing a competing plan for the care of a child to lead some cogent evidence with respect to that plan.

                      • Wallace J. had before her the evidence of J.G.(1)’s attempts to rehabilitate herself from her

addiction to alcohol, the past involvement of the Society with her and J.G.(2), previous alternatives tried for the care of J.G.(2), that is, placement of J.G.(2) with his aunt, and society wardship access to J.G.(1), the limited extent of W.T.’s involvement with J.G.(2) and the relationship of J.G.(1) with her family. The trial judge also had before her a clear plan, proposed by the Society, with respect to J.G.(2)’s care; that plan being that he be placed for adoption as his chances for bonding with a new family were good. J.G.(1)’s plan was not clearly put before the court. The trial judge found that because of J.G.(1)’s continued abuse of alcohol, the court would not consider returning J.G.(2) to her, yet there was no plan put forward by J.G.(1) as to how she planned to resolve her alcohol addiction. The trial judge found that J.G.(1)’s plan for J.G.(2) depended on an undeveloped plan for J.G.(1)’s rehabilitation from alcohol addiction, which would leave J.G.(2) in a state of limbo for an undetermined period of time. Based on the evidence before her, including the competing proposals for J.G.(2)’s custody, the trial judge concluded that she had no other option but to order that J.G.(2) be placed in Crown wardship.

                      • The “least restrictive alternatives” referred to in s. 65(3)(h) should be approached from the child’s perspective rather than a parent’s perspective. This view is supported in Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), supra, where L’Heureux-Dubé J. discussing the objective of the CFSA states at p. 191:

The Act … spells out the objectives of the legislation in s. 1, of which the first and “paramount” objective of the Act is to promote “the best interests, protection and well-being of children”.

In attempting to fulfil this objective, the Act carefully seeks to balance the rights of parents and, to that end, the need to restrict state intervention, with the rights of children to protection and well-being. The Ontario legislation … has been recognized as one of the least interventionist regimes … This

non-interventionist approach is premised not with a view to strengthen parental rights but, rather, in the recognition of the importance of keeping a family unit together as a means of fostering the best interests of children. Thus, the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent. In order to respect the wording as well as the spirit of the Act, it is crucial that this child-centred focus not be lost, even at the stage of an inquiry under the status review provisions.

                      • Further at p. 201 L’Heureux-Dubé J. states:

… [T]he best interests of a child under the Act are to be decided through the balancing of all the considerations set out in s. 37(3), including consideration for the family, the importance of the continuity of care, the child’s physical, emotional and psychological needs as well as the other criteria set out in s. 65(3).

                      • The trial judge, while not explicitly stating that she was adopting the approach stated above by L’Heureux-Dubé J., seems to have adopted it in a practical sense. The trial judge found, after an extensive review of the factors to be considered in determining the child’s best interests, that it would not be in the child’s best interests that he be returned to his mother and found that the lest restrictive alternative, from J.G.(2)’s perspective, would be that he be made a Crown ward.
                      1. Did the trial judge err in concluding that J.G.(1)’s alcoholism could not be rectified within a reasonably foreseeable time not exceeding two years?
                      • The trial judge determined that the circumstances justifying a Crown wardship order were unlikely to change within a period of time not exceeding twenty-four months. An adjournment had been granted in November 1993 for the purposes of permitting J.G.(1) to attempt a further treatment programme for her alcoholism. J.G.(1) was not successful in effectively dealing with her problem of alcoholic addiction during the adjournment, thus, based on J.G.(1)’s previous history, the trial judge inferred that it was not reasonably foreseeable that J.G.(1) would be able to obtain successful treatment and be able to care for her child within twenty-four months. The trial judge concluded, in light of all the circumstances, that she could not justify a further adjournment. I agree with the trial judge. J.G.(1) has repeatedly shown that she has been unable to overcome her addiction to alcohol, even in the face of knowing that the return of her child depended upon that fact.
                      • J.G.(1) is addicted to alcohol. She refuses to abstain from alcohol. She refuses to undertake an effective programme for the treatment of her alcohol addiction. She denies that her addiction to alcohol significantly compromises her capacity to care for J.G.(2) as a parent should care for a child. The learned trial judge, on the evidence before her, came to the only conclusion that she could, bearing J.G.(2)’s welfare in mind. The paramount objective of the statute is to promote “the best interests, protection and well-being of children”. The best interests of the child are indeed decided through the balancing of all the considerations set out in s. 37(3) as well as those set out in
                      1. 65(3). I am satisfied that Wallace J. carefully gave consideration to all factors which she should have given consideration to, and that her decision is supported by the facts and does not display error of law.

DECISION

                      • The trial judge did not err in her determination that an order for Crown wardship was in J.G.’s best interests. Accordingly, the appeal should be dismissed. This is not a matter for costs.

WHITE J.

FEDAK J.

                      • FELDMAN J. (dissenting in part):– On this appeal, J.G.(1) represented herself before the court, although she had consented at the trial. She presented “fresh evidence” in the form of oral submissions made to the court. In her submissions, she advised the court that she is now married to the man she was living with at the time of the trial, W.T., that he works and she is off welfare, they

have a house, a car, a life insurance policy and some financial stability. The house is five minutes from her sister. They have a furnished room ready for J.G.(2) and have arranged for him to be in school next year. She also advised that she has re-established relations with all of her other children, who are supportive of this appeal.

                      • Unfortunately, she was not able to assure the court that she was prepared to say that she would never have another drink, although her suggestion was that her drinking is now under control. She said that with her husband and her good relationship with him and his family, she no longer needs to use alcohol as a means of escape. Without further evidence, it is very difficult indeed to know whether she still has the type of drinking problem which resulted in the behaviour which led Wallace J. to conclude that J.G.(2) remained in need of protection. However, the fact that she has attained a measure of both personal and financial stability in her personal life is a significant factor militating against the continuation of episodes of bizarre or promiscuous behaviour brought out at trial.
                      • This appeal was heard 1 1/4 years after the trial. Wallace J. was most concerned at the time about any delay in placing J.G.(2) with an adoptive family. It was for that reason that she refused J.G.(1) another adjournment to seek further treatment for her alcoholism. An adjournment for the purpose in November, 1993 had not been successful in that J.G.(1) had not successfully attended and focused on either available program during that time, as she was not prepared to remove herself from her boyfriend or child for the period necessary to devote to one of the available programs. Wallace J. concluded that:

… it is not reasonably foreseeable that J.G.(1) will be able to assume care and control of [the] child within a period of time not exceeding 24 months and I am not able to justify a further adjournment of this matter. (p. 10 Appeal Book)

Wallace J. further emphasized that time was of the essence when she considered a possible delay of one year for J.G.(1) to both conquer her illness and be less vulnerable to relapse. She said at p. 15:

The effect of a delay of that sort on J.G.(2) is too great. Developmentally, this is the easiest time for him to get on with his life by severing his ties. He will soon be registering in school and it will be important for him to have overcome the hurdles of finding and settling into his long term home. It is important for the court to act now.

                      • Unfortunately, it took over a year for the appeal to be able to be heard. During that time, J.G.(2) remained in foster care, and no steps could be taken by the Society to commence an adoption program in accordance with s. 140(2)(c) of the Child and Family Services Act. Therefore, the delay which Justice Wallace hoped to avoid, in fact occurred.
                      • In the meantime, J.G.(1)’s circumstances changed for the better in several ways, as recounted above, all of which speak favourably to new stability in her life. One of the concerns expressed by

Wallace J. was if J.G.(2) were returned to his mother’s care, and then her relationship with W.T. broke down, J.G.(1)’s pattern upon losing a male in her life was that everything in her lifestyle broke down including adequate accommodation, food, clothing and shelter for the child. The fact that since the trial she and W.T. have married and are living in a stable relationship speaks to that expressed concern. The relationship with W.T. and his family suggests that there is a larger network of adults around J.G.(1) to assist her with problems and with J.G.(2).

                      • It is, however, most unfortunate indeed that J.G.(1) has not also in that period been able to successfully deal with her alcohol addiction problem. However, in part because J.G.(1) was not represented by counsel on the appeal, no clear evidence of her status in respect of her current vulnerability to relapse was presented.
                      • Crown wardship is probably the most profound order that a court can make. Simmonds J. made the following observations in that regard in Children’s Aid Society of the Region of Peel v.

M.J.W. [1994] O.J. No. 2062 at para. 21:

” … I can think of no order that any judge could possibly make that can so profoundly affect the lives of the people involved; to take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies:”

C.A.S. of Hamilton-Wentworth v. M., unreported July 30, 1992 — quoting from

C.A.S. of Hamilton-Wentworth v. D.C., H.C. and M.R.

Where Crown wardship is requested the court should assess the steps taken by all parties to investigate alternatives and should consider whether further steps should be taken and whether further evidence should be called …

                      • Section 69(6) of the Act provides that: “The court may receive further evidence relating to events after the appealed decision.” In C.C.A.S. of Metropolitan Toronto v. M.(C.) (1993), 2 R.F.L. (4th) 313 (S.C.C.), the Supreme Court admitted fresh evidence, emphasizing “the importance of having accurate and up-to-date information on children whose fate often hangs on the determination by judges of their best interests.” (p. 334). L’Heureux-Dubé went on to say:

Although it might be more in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance.

                      • This case was presented on appeal in an unusual manner, with the fresh evidence being presented orally in argument by the appellant acting on her own. Nevertheless, in my view, there was enough there to demonstrate a positive change in the circumstances of the mother requiring an update on the status of the child at the time of the appeal. Although the court is entitled to assume that the Society would advise it if its plan was no longer viable or if the child’s well-being status had changed since the trial, in light of the nature of the decision being made, it would be preferable to have that as evidence before the court, in a situation where new evidence is raised on the appeal by the appellant. In particular, in my view, the court should have evidence from the Society of the current status of the child in foster care, as well as the current prospects for him to be successfully placed in a suitable adoptive home, given that he is now five years old; in other words, evidence that the plan proposed by the Society at the trial for the adoption of a three-year old is still a viable one. Depending on the nature of that evidence, and any further evidence that may be submitted or required, the court would have been in a better position to determine the appropriate disposition of the appeal in the best interests of the child.

FELDMAN J.

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