Re Children’s Aid Society of Peel and Mary Jane W. et al.
[Indexed as: Children’s Aid Society of Peel v. W. (M.J.)]
23 O.R. (3d) 174
[1995] O.J. No. 1308 No. C19593
Court of Appeal for Ontario,
Robins, Finlayson and Osborne JJ.A.
May 10, 1995
Family law — Children — Child welfare — Status review hearings –Judge at status review hearing under Child and Family Services Act ordering that child be made Crown ward without access — Placement plan involving child’s grandfather and his wife withdrawn at hearing as unworkable — Judge under no obligation to further investigate placement plan by determining whether grandparents still willing to undertake child’s care or to consider whether CAS had taken adequate steps to investigate plan — Child and Family Services Act, R.S.O. 1990, c. C.11.
Family law — Children — Child welfare — Placement plans — Judge at status review hearing under Child and Family Services Act ordering that child be made Crown ward without access until she could be adopted — Appeal allowed and new trial ordered — Appeal to Court of Appeal allowed and original order restored — Plan proposed by child’s extended family not entitled to prima facie elevated status — Plan unworkable — Child and Family Services Act, R.S.O. 1990, c. C.11.
Family law — Children — Child welfare — Appeals — Standards for admission of fresh evidence on appeals in Child and Family Services Act cases being more flexible than in other civil or criminal cases — Fresh evidence not required to be practically conclusive — Child and Family Services Act, R.S.O. 1990, c. C.11.
After a status hearing under the Child and Family Services Act (“CFSA”), the judge ordered that the child be made a Crown ward without access until she could be adopted. The child was raised from birth in conditions of squalor and neglect, and as a result all aspects of her development had been compromised. In addition, there was a possibility that she had been sexually abused, and she was sexually precocious. She needed a secure, consistent and structured environment. The child’s mother did not claim to be able to care for her, but a placement plan was put forward calling for the child’s grandfather and his wife, who lived in British Columbia, to assume responsibility for the child’s care. That placement plan was withdrawn as unworkable. The trial judge found that bonding between the child and her mother was minimal. She accepted the evidence that the child was adoptable and that it was in her best long-term interests to be adopted.
The mother appealed the decision making the child a Crown ward without access under s. 69 of the CFSA. The appeal was allowed and a new trial was ordered. The appeal judge held that, before making the order for Crown wardship without access, the trial judge should have inquired, first, whether the grandparents remained willing to undertake the child’s care; second, whether the Children’s Aid Society (“CAS”) had taken adequate steps to investigate the B.C. placement proposal; and, finally, whether it was desirable or necessary that further evidence in respect of the B.C. proposal be obtained.
The CAS appealed. Further evidence was filed concerning the viability of the B.C. placement proposal.
Held, the appeal should be allowed.
The trial judge’s reasons met the requirements of s. 53(1) of the CFSA. The purpose of s. 53(1) is not to require trial judges to give extensive reasons in the abstract. There was an abundance of evidence to support the trial judge’s conclusion that the child had to be in the care of someone other than her mother; she was not required to refer to all of it.
The appeal court judge erred in imposing an obligation on the trial judge to determine if the grandfather and step- grandmother remained willing to undertake the child’s care and whether the CAS had taken adequate steps to investigate the proposal. The trial judge is not an investigator; the power conferred by s. 49 of the CFSA, which permits the trial judge to call witnesses, does not change the essential nature of the trial judge’s role. This was not a case where the trial judge was required to intervene on her own motion. 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. The CAS is not required to investigate any and every placement proposal.
On a status review hearing under s. 65 of the CFSA, once it is established that the child is in continued need of protection and court intervention continues to be necessary, the court is required to consider the least restrictive alternatives consistent with the child’s best interests. This may or may not involve the potential for some form of familial care. A plan proposed by “extended family” is not to be given a prima facie elevated status. Such a plan should simply be considered with other viable options.
In CFSA cases, more flexible standards for the admission of further evidence must be accepted than are applied in other civil and criminal cases. In family law cases, especially those involving children, it is not necessary to show that the fresh evidence would be practically conclusive.
A homestudy report prepared at the request of counsel for the mother by a B.C. social worker was filed as fresh evidence. That report was totally inadequate in its treatment of troubling issues raised by the B.C. placement plan. The child’s step-grandmother lived in a trailer some distance from the nearest town, did not drive, and had health problems which impaired her mobility. The grandfather did not live with her on a permanent basis. The step-grandmother was caring for two young grandsons who suffered from fetal alcohol syndrome and fetal alcohol effects and required constant attention. The B.C. school authorities were opposed to taking the child. The B.C. proposal made no sense once it was exposed to even superficial analysis. The order of Crown wardship without access should be restored.
Genereux v. Catholic Children’s Aid Society of Metropolitan Toronto (1985), 53 O.R. (2d) 163, 24 D.L.R. (4th) 264 (C.A.); Varette v. Sainsbury, [1928] S.C.R. 72, [1928] 1 D.L.R. 273, consd
Other cases referred to
Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, 2 R.F.L. (4th) 313, 113 D.L.R. (4th) 321, 165 N.R. 161, 18 O.R. (3d) 160n; Hill v. Church of Scientology of Toronto (1994), 18 O.R. (3d) 385, 114 D.L.R. (4th) 1, 20 C.C.L.T. (2d) 129 (C.A.); R. v. Palmer, [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22; R. v. Stolar, [1988] 1 S.C.R. 480, 52 Man. R. (2d) 46, 82 N.R. 280, 40 C.C.C. (3d) 1, 62 C.R. (3d) 313, 50 C.R.R. 397n; Strobridge v. Strobridge (1994), 18 O.R. (3d) 753, 4 R.F.L. (4th) 169, 115 D.L.R. (4th) 489 (C.A.)
Statutes referred to
Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 49, 53, 57, 64, 65, 69
Child Welfare Act, R.S.O. 1980, c. 66, s. 43(8)
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(4)(b) Rules and regulations referred to Rules of the Ontario Court (Provincial Division) in Family Law Proceedings, R.R.O. 1990, Reg. 199, Rule 72
Authorities referred to Cross on Evidence, 7th ed. (London: Butterworths, 1990) Sopinka, J., and Gelowitz, M.A., The Conduct of an Appeal (Markham: Butterworths, 1993)
Appeal from a judgment allowing an appeal from an order that a child be made a Crown ward without access.
Marvin Kurz and Frederick Streiman, for appellant.
Ian R. Mang and T. Michele O’Connor, for respondent, William W.
Jacqueline King and Jeffery Wilson, for respondent, Mary Jane W.
Corina Gayk, for Margaret G.
The judgment of the court was delivered by
OSBORNE J.A.: — This appeal concerns the future of an eight- and-a-half-year-old child, Margaret W., who has been in foster care since November 1991, following her removal from her mother’s care by the Peel Children’s Aid Society (C.A.S.) in September 1991. After a status review hearing, held as required by the Child and Family Services Act, R.S.O. 1990, c. C.11 (C.F.S.A.), Kerrigan-Brownridge Prov. Div. J. ordered that Margaret be made a Crown ward without access. Margaret’s mother (Mrs. W.) appealed. After five days of argument based upon the trial record, and some fresh evidence to which I will refer later, Simmons J., on September 1, 1994, set aside the provincial judge’s order and directed that there be a new trial. The C.A.S. now appeals from that order.
The appeal raises a number of issues including the application of those factors which must be considered on a status review hearing held under ss. 64 and 65 of the C.F.S.A. It also requires consideration of the statutory requirements set out in s. 53(1) concerning reasons for judgment. These issues have to be considered in the light of “further evidence” admitted by Simmons J. on Mrs. W.’s appeal from the provincial judge’s order, and additional “further evidence” filed in this court. That “further evidence” concerns, among other things, the viability of Mrs. W.’s proposal to have Margaret placed in Smithers, B.C. with her maternal grandfather and his wife.
The Facts
I propose to review the evidence only to the extent necessary to provide some context for these reasons and the orders made by both the trial judge (Crown wardship without access) and the appeal court judge (a new trial). Margaret was born on July 3, 1986. She is the third child of Mary Jane W. (Mrs. W.) and William W. From her birth she was raised in conditions of squalor and neglect. As a result all aspects of her development have been compromised. At trial, several experts and caregivers testified as to Margaret’s particular circumstances. She lived in a home that was described as “hardly habitable” because of a lack of housekeeping. She was described as “chronically dirty”. She was fed Pepsi Cola in a baby bottle at an early age with the result that by the time she was five she was required to wear both upper and lower dentures. This serves to illustrate the quality of care Margaret received.
Margaret was five when she was first placed in care; at that time she functioned at about a two-year-old’s level. She ate with her hands and smeared her food. She was unable to play with children of her own age. She had grossly underdeveloped verbal skills. She wet her bed regularly and was sexually precocious.
Margaret was described by Dr. Maureen Joyce, a psychologist who had extensive contact with her, as being an extremely distractible, affectionate and likeable child with diminished fine motor skills and verbal skills. Dr. Joyce observed, in evidence that was not contradicted at trial, that Margaret requires a structured environment. She has trouble integrating information in the sense that she sees events as they unfold before her on a piecemeal basis. She requires a secure, consistent and structured environment which is generally free from unwarranted distractions. Dr. Joyce expressed the opinion that Margaret would benefit from one-on-one remediation.
In September 1991, all three children were removed from Mr. and Mrs. W.’s care and placed with a maternal uncle and his common law spouse. After two weeks the uncle requested that William be taken into the care of the C.A.S. On November 4, 1991 both Margaret and her older sister Tracie were taken into the care of the C.A.S.
On March 18, 1992 Margaret was found to be a child in need of protection and was made a society ward for four months. On June 3, 1992 the C.A.S. filed a status review application in which it sought society wardship for a further period of three months. On October 15, 1992 the C.A.S. filed an amended status review application in which it sought Crown wardship with no access. The C.A.S. plan was to place Margaret on a path where she could be adopted.
Margaret has been living in foster care with Mr. and Mrs. J. since November 4, 1991. Mrs. J. testified at the status review hearing. Her evidence was, to say the least, impressive. It appears to me that Mr. and Mrs. J. have responded to Margaret’s needs with dedication, commitment and sacrifice. Unfortunately, they feel that they are unable to adopt Margaret, or commit to her long-term foster care. Mrs. J. said that she did not wish to be placed in a position where her own children’s best interests were compromised as a result of the intense demands that would be imposed upon her as an adoptive or foster parent of Margaret. She did agree to continue to care for Margaret until the resolution of the status hearing application. I suspect that she did not contemplate that the status hearing application would result in an appeal, an order that there be a new trial, and a further appeal to this court.
The hearing on the C.A.S. amended status review application began on August 23, 1993 and proceeded over six consecutive days immediately following which, on September 1, 1993, Kerrigan-Brownridge Prov. Div. J. gave judgment in which she ordered that Margaret be made a Crown ward without access.
The C.A.S. plan for Margaret’s care was filed with the court, but was not made an exhibit at trial. The plan is contained in the affidavit of the primary C.A.S. social worker involved in Margaret’s case, Anne-Marie Duguay, sworn October 27, 1992. In her affidavit Ms. Duguay outlined the present circumstances of William, Tracie and Margaret G., the particulars of the C.A.S. investigations of the mother’s parenting abilities, her capacity to learn parenting skills and the C.A.S.’s particular plan. Stripped of references pertaining to the justification for it, the C.A.S. plan was that Margaret be made a Crown ward without access “until a suitable adoptive home can be secured”. Thus the C.A.S. position was that the appropriate order was Crown wardship without access. In that way Margaret could be placed for adoption.
The court was advised in the opening statement of counsel for the C.A.S. that Margaret was a child who could be adopted. Evidence called during the status review hearing confirmed this.
In his opening statement, counsel for Mrs. W. acknowledged that Mrs. W. realized that it was not in Margaret’s interests to return to live with her. Counsel put it this way:
And it took a slow evolution of thought to see that perhaps it’s not best for Margaret to come back into her [the mother’s] home, but that she should go somewhere else.
Mrs. W.’s position, as set out at the opening of the trial, was that she was willing to have Margaret sent to Smithers, B.C. to reside with her maternal grandfather and his wife, who is not Margaret’s natural grandmother. Counsel advised the court, before evidence was called, that Mr. and Mrs. G. were caring for two problem boys, their grandsons, in Smithers, B.C. The two boys, aged 12 and 9, suffered from fetal alcohol syndrome and fetal alcohol effects. When I address the fresh evidence concerning the Smithers, B.C. proposal advanced by Mrs. W. at the beginning of the trial, I will deal with the two boys being cared for by the grandparents in B.C. In any case, it is clear that the mother’s proposal at the opening of the trial was that Margaret be sent to live with her grandparents in Smithers, B.C.
Counsel for the C.A.S. and for the children (the Official Guardian) both opposed the Smithers, B.C. option. According to Ms. Duguay, Mrs. W.’s position until August 5, 1993 was that Margaret be returned to her and that subject to the provision that if the judge ordered that Margaret be placed for adoption, that she be adopted by her father, Mr. G. Thus, the C.A.S. initially viewed the B.C. option as Mrs. W.’s second choice.
Ms. Duguay said that it was on August 5, 1993 that the B.C. option became the mother’s preferred and primary plan. A letter from counsel for the C.A.S. to counsel for Mrs. W., dated July 28, 1993 (less than one month before the status review hearing began) refers to the proposal that Margaret live in B.C. with her grandfather and step-grandmother as a proposal for Margaret’s adoption and as a backup proposal, that is, a proposal that she would rely on only if she were to lose at the status review hearing. This letter also stated that if the court ordered Crown wardship without access, the C.A.S. would consider the prospect of Margaret’s adoption by her grandfather in B.C., but only as one of many possible plans for adopting for Margaret. Counsel for Mrs. W. did not reply to this letter, or a subsequent letter dated August 6, 1993 which alerted counsel for Mrs. W. that a home study report concerning Margaret’s grandfather in B.C. would not be available at the status review hearing.
Ms. Duguay was asked about Mrs. W.’s proposal to have
Margaret live with her father and his wife (Mr. and Mrs. G.) in British Columbia. She said that she had never been contacted by either Mr. or Mrs. G. with respect to this proposal. She added that Mr. and Mrs. G. had not seen their granddaughter since 1991 when Margaret came into the care of the C.A.S. Ms. Duguay added that, as far as she knew, Mr. and Mrs. G. had not sent birthday cards or letters to Margaret, even after May 19, 1993, when the proposal that Margaret live in British Columbia with them was first advanced. At the end of the second day of the trial, after the court had received evidence of Margaret’s profound needs, her problems, including sexual precociousness, and evidence which suggested that she had been exposed to sexual abuse, the trial judge intervened to inquire about the general viability of the mother’s B.C. placement proposal. The trial judge expressed her concern in this way:
. . . and they only have one proposed plan, to place this seven year old sexually precocious child in a home where there is nine and eleven year old males who have their own problems. I think it is a very serious situation to be considered.
The trial judge then informed counsel for Mrs. G. that she wanted to hear from him about Margaret’s grandfather’s circumstances in British Columbia. She said:
Yes, because Mr. Roche [counsel for the mother at trial] I must say to you, if I do not hear from Mr. G. [Margaret’s grandfather] personally, as to his ability to understand the needs of Margaret and his further ability to meet those needs personally through access to resources in his community, then I can’t see how that, frankly, can be considered as an option and I just want to know whether we are going to have Mr. G. here, and if not, then I would suggest that you consult with your client, to then determine what the nature of the proceedings will be, because as [sic] that point, that plan clearly isn’t viable and is not going to be presented in any viable way and then we are back to whether the issue then becomes whether Mrs. W. is consenting to Crown wardship with access or what her position is going to be . . . and I just want Mrs. W. to understand that if I don’t have your father here in this courtroom, explaining his plan and convincing me that he understands Margaret’s needs and in convincing me that he can meet those needs, then I can’t see that as being viable . . .
(Emphasis added)
At that point Mrs. W. interjected to observe that it was not her father that should be consulted but rather her step-mother. The trial judge then stated:
I have to hear a very viable plan and, as I said, I have to hear that Margaret’s needs are understood and that the needs can be met, and that, in a nutshell, is what is critical.
It is apparent that after court on the second day of the trial there were some discussions among counsel. These discussions came to the surface on the third day of the trial during Dr. Amin’s evidence. Dr. Amin had interviewed Mrs. W. on five occasions in June and July 1993, the last interview being on July 15, 1993. In his evidence-in-chief, he referred briefly to having been informed by Mrs. W. of the plan that Margaret be placed with her grandfather in Smithers, B.C. In the course of Dr. Amin’s examination-in-chief counsel for the C.A.S. stated that:
Today that plan [the B.C. plan] was withdrawn as being unworkable, and today, her plan instead is to accept Crown wardship, but to request that this Honourable Court award her access rights to the child. Do you have any comment about this change of position? Is it consistent in any way with your findings?
(Emphasis added) Dr. Amin responded:
Well, it’s certainly consistent in that she wants to maintain contact with her child at all costs. . . . It’s also consistent in that I don’t think she adequately understands her child’s needs and her child’s deficits, and how this could perhaps cause some confusion for her daughter, who has special needs. Counsel for Mrs. W. took no issue with the statement that the B.C. placement plan had been withdrawn as unworkable, or with Dr. Amin’s comment as set out above. Moreover, I note that in cross-examination counsel for the mother made no attempt to suggest to Dr. Amin that the option of having Margaret live with her grandfather and step-grandmother in Smithers, B.C. was still open for consideration by the court.
The Trial Judge’s Reasons
The trial judge found that Margaret was severely neglected and deprived in the first five years of her life. This is the period when she was cared for by her mother, in what the trial judge found (on uncontradicted evidence) was “an unclean and unhealthy” home environment. The trial judge also addressed Margaret’s deficits when she came into the care of the C.A.S. in 1991. She found that Margaret was then incapable of verbal communication and was sexually precocious. She also noted that Margaret did not have basic skills related to eating, toilet functions, playing at an age-typical level and interacting with others.
The trial judge concluded, with the support of an abundance of evidence, that Margaret needed stimulation, structure, therapy, special educational programs, constant monitoring, continuity, stability and security. She observed that it was the evidence of the experts that all of these needs were essential to her reaching her potential.
All of the trial judge’s findings were supported by the evidence. As I read the transcripts of the evidence, no real issue was taken with the assessment of Margaret’s deficits and her needs.
In her reasons, the trial judge observed that bonding between Margaret and her mother was “minimal” and that there was no evidence that bonding between Margaret and her siblings was significant. She noted that although Mrs. W. loved Margaret (and for that matter all three of her children), she had delegated much of Margaret’s caretaking to others. In dealing with bonding between Mrs. W. and Margaret, the trial judge observed that Mrs. W.’s proposal that Margaret be sent to B.C. to live with her father (Margaret’s grandfather) was not “a sign of strong bonding mother to child”.
The trial judge accepted the evidence that Margaret was adoptable and that it was in her best long-term interests to be adopted, consistent with the C.A.S. plan. In dealing with the important issue whether Margaret is adoptable, Andrea Abrams, the C.A.S. adoption and foster care supervisor said:
A. I believe Margaret is adoptable.
Q. Why do you say so?
A. There are many positives about Margaret, in addition to the fact that she is an emotionally fragile child. She’s very appealing. She’s attractive. She’s engaging. She is alert to people in her environment. She is interested in them. She is wanting attention. She is wanting interaction. She had made some good connections with her foster mother. She is gratified by her foster mother. Her foster mother meets her needs and Margaret has attached in that home, and I believe because she’s attached, she will be able to make new attachments in an adoptive home. She has improved considerably during her stay in foster care and from the reports, it appears that she can make more gains, and these are all qualities that adoptive parents want in children.
(Emphasis added)
The trial judge accepted the recommendation that there be a transition period of one year or more as Margaret moved from her foster home to her adoptive home. The need for a transition period was emphasized in the expert evidence which addressed the need for continuity and stability in Margaret’s life and thus the need for a somewhat prolonged transition period upon her removal from her foster home.
Accordingly, the trial judge ordered that Margaret be made a Crown ward without access, so that she could be placed for adoption.
The trial judge referred to the B.C. option only in passing, when she dealt with the issue of bonding between Mrs. W. and
Margaret. It is apparent that in addressing the issues before her, the trial judge proceeded on the basis that Mrs. W.’s proposal to have Margaret live with her father and his wife in Smithers, British Columbia had been abandoned.
The Appeal Under s. 69 of the C.F.S.A.
Mrs. W. appealed from the decision of Brownridge-Kerrigan Prov. Div. J. making Margaret a Crown ward without access. Her appeal was under s. 69 of the C.F.S.A. For convenience, I will set out s. 69 and other relevant sections of the C.F.S.A. in Appendix A to these reasons [see pp. 201-04 post].
The appeal was argued before Simmons J. over a five-day period. On the appeal, she received further evidence from Mrs.
W. which I assume was filed under s. 69(6) of the C.F.S.A. The further evidence concerned:
(a)the circumstances of Margaret’s step-grandmother’s non- attendance at trial;
(b)the viability of a placement with Margaret’s grandparents, Mr. and Mrs. G. and their willingness to care for Margaret;
(c)the position taken by the C.A.S. before trial in relation to investigating the British Columbia proposal.
The appeal court judge also received responding affidavits from the C.A.S. dealing with the issues raised in the affidavits filed by Mrs. W. The appeal court judge referred to the fresh evidence near the end of her reasons for judgment.
She concluded that certain paragraphs in the affidavit of Mrs. G., the wife of the appellant’s maternal grandfather, were admissible. She also held that certain paragraphs in a responding affidavit of Anne-Marie Duguay (as noted a family services worker with the Peel Children’s Aid Society), were also admissible. She said that the fresh evidence which she did not admit was not significant to the determination of the issues on the appeal.
Although the basis upon which the appeal court judge admitted the fresh evidence is somewhat unclear, it seems to me that the further evidence did not significantly influence the appeal court judge’s decision that there should be a new trial. Her only reference to this further evidence in her reasons was in relation to the issue whether Margaret’s grandfather and his wife were “willing” to care for Margaret.
When the appeal court judge turned to consider the issues raised on appeal by Mrs. W., she concluded that the trial judge erred in a number of respects. I set out below the errors identified by the appeal court judge.
1. The trial judge failed to direct herself to the issue whether the evidence established that an order for Margaret’s continued protection was required. Eventually, the appeal court judge considered that this failure of the trial judge to consider this issue occasioned no substantial wrong or miscarriage of justice.
2. In making an order under s. 57(1) (Crown wardship without access), the trial judge failed to consider the combination of the criteria set out in s. 65(3), and the range of orders provided for in s. 57(2), in the light of the C.F.S.A.’s mandate that the disposition take into account what is “the least restrictive alternative that is in the child’s best interests” (s. 65(3)(h)).
3. The trial judge’s reasons and findings of fact did not meet the requirements of s. 53(1) of the C.F.S.A. In particular, the appeal court judge found that the trial judge erred in not making a finding that Margaret could (or could not) be returned to her mother.
4. The trial judge erred in basing her conclusions on the parties’ positions at trial, that is in proceeding on the basis that the parties agreed that the only issue to be resolved was whether the appropriate order was Crown wardship with, or without, access.
5. Before making an order of Crown wardship without access, the
trial judge should have inquired, first, whether “the grandparents remained willing to undertake Margaret’s care”; second, whether the C.A.S. had taken “adequate steps” to investigate the B.C. placement proposal; and finally, whether it was “desirable or necessary” that further evidence in respect of the B.C. proposal be obtained.
6. The trial judge erred in dealing with the issue of bonding between Mrs. W. and Margaret. The appeal court judge found that the trial judge was wrong in using Mrs. W.’s support of the proposal that Margaret live in B.C. with her grandparents as evidence that bonding between Mrs. W. and Margaret was not strong.
Discussion
(i)Was Margaret in continued need of protection and could she be returned to her mother?
The appeal court judge found that there was some evidence that Mrs. W. wanted Margaret to be with her and that the trial judge erred in failing to take this evidence into
consideration. She relied upon the combined effect of ss. 65(3) and 53(1)(b)(ii) in dealing with this issue. By combining these sections of the C.F.S.A., the appeal court judge seems to have concluded that the trial judge made two errors. First, she did not consider the factors set out in s. 65(3) — that is, factors which she was required to take into account on a status review hearing — in relation to the issue whether Margaret could be returned to her mother and, second, she did not give effect to the provisions of s. 53(1)(b)(ii) and give reasons for concluding that Margaret “cannot be adequately protected” in her mother’s care. The Supreme Court of Canada’s decision in Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, 2 R.F.L. (4th) 313, makes it
clear that on a status review hearing the court must be satisfied that the child in issue is in continued need of protection and that the intervention of the court is necessary in the circumstances. L’Heureux-Dub J. put it this way in M. (C.) at pp. 199-200:
Children’s needs are continually evolving as they are governed by occurrences in the lives of children and their families which cannot be held still in time. . . .
The question as to whether the grounds which prompted the original order still exist and whether the child continues to be in need of state protection must be canvassed at the status review hearing. Since the Act provides for such review, it cannot have been its intention that such a hearing simply be a rubber stamp of the original decision. . . .
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.
In my opinion the trial judge’s reasons disclose that she considered that Margaret was in continued need of protection. I do not think that it was necessary for the trial judge to have put it more fully and plainly than she did. As I have said, the evidence and the trial judge’s findings of fact support the trial judge’s conclusion that Margaret was a grossly neglected child who was in need of protection.
Section 53(1)(b)(ii) requires the court to give reasons setting out, in this case, why Margaret could not be adequately protected in her mother’s care. As I read the reasons, the trial judge did state why, in her view, Margaret had to be in the care of someone other than her mother. There was an abundance of evidence to support her conclusion on this issue. The trial judge was not required to refer to all of it. At the status review hearing counsel for Mrs. W. acknowledged that Mrs. W. was not capable of caring for her daughter. The evidence, some of which was referred to by the trial judge in her reasons, supported that position. All of the expert evidence supported the conclusion that Mrs. W. did not come
close to adequately caring for Margaret when Margaret lived with her and that she was incapable of parenting, or learning how to parent at a reasonable level. The only competing evidence was that of Frank Ennis, a community services worker, who was not tendered, or qualified, as an expert at trial.
Nonetheless, he gave opinion evidence which was not objected to. He admitted that he did not really know Margaret. He expressed a personal preference for access over adoption.
Although the trial judge did not explicitly deal with Mr. Ennis’ evidence, it is quite clear that she accepted other evidence with respect to Mrs. W.’s capacity to care for her daughter.
The purpose of s. 53(1) is not to require trial judges to give extensive reasons in the abstract. As I see it, s. 53(1)
is intended to support the dominant value of the C.F.S.A., that is, the best interests of children. By imposing minimum standards on the content of reasons for judgment on the issues identified in s. 53(1), it seems to me that the legislature wanted to ensure that those issues were considered and that those affected by the court’s order would know why the trial judge reached the conclusions she did on the issues referred to in s. 53.
(ii) The B.C. placement proposal
I will deal with this issue in two stages. First, I will address it without reference to the further evidence. I will then take the further evidence into account and determine whether the further evidence, when taken with the other evidence, supports the appeal court judge’s conclusion that there be a new trial. As I have said, the further evidence filed before the appeal court judge played no significant part in her decision that a new trial was required. I will consider the further evidence filed in this court later.
The appeal court judge concluded that, because the grandparents’ proposal had been referred to in the trial record, it was incumbent upon the trial judge to pursue that proposal and if necessary to adjourn the trial to permit the British Columbia placement plan to be fully scrutinized. The
appeal court judge dealt with this issue in this way:
The trial judge concluded that she was unable to consider the plan for placement with the grandparents absent additional evidence. It was within her discretion to do so.
Nevertheless, it is my view that before making an order for Crown wardship she was required to inquire whether the grandparents remained willing to undertake Margaret’s care. Subject to the response, she was also required to consider whether the Society had taken adequate steps to investigate and consider that proposal, to inquire whether additional evidence was obtainable and to consider, based on the totality of information then available, whether the proposal possessed sufficient relative merit in relation to plan(s) before the court to make it desirable or necessary that further evidence be obtained. In my view, the trial judge erred in failing to consider these matters.
(Emphasis added)
The appeal court judge recognized that her view of the trial judge’s obligation to pursue the proposal that Margaret be placed with her grandparents in British Columbia included the prospect of adjourning the trial “to permit the grandparents to attend and present a plan of care or to require the Society to investigate such a plan”.
The appeal court judge accepted the proposition that in proceeding as she did with respect to the somewhat incomplete plan with respect to Margaret living with her grandparents, the trial judge exercised a discretion which was open to her.
However, she concluded that the mandatory language of s. 65(3)
(h) which required the court to consider what the “least restrictive alternative” order (under s. 57 which is imported into s. 65 by the reference to s. 57 in s. 65(1)(c)), coupled with the court’s power to summons witnesses (see s. 49), supported the conclusion that the court is not bound by the parties’ positions at trial. The appeal court judge said:
Again, in my view, the mandatory nature of the language in s. 65(3), coupled with the court’s power to summon witnesses and
the other statutory provisions and the rule previously referred to, indicate that in considering this issue the court is not bound by the position of the parties at trial. While I do not consider the court is thereby required to embark on a speculative search for every conceivable placement, it must at least assess whether the parties have given adequate consideration to this issue. Of necessity this may require the court to ask questions at the trial and, if required, consider whether further evidence can or should be obtained.
(Emphasis added)
The appeal court judge’s reference to the “rule”, quoted above, is a reference to Rule 72 of the Rules of the Ontario Court (Provincial Division) in Family Law Proceedings, R.R.O. 1990, Reg. 199. It provides:
72. The court shall not make an order on consent of the parties under subsection 57(1) (supervision or wardship)
. . . unless the parties agree on the facts on which the order is based and a hearing is held.
I will say no more about Rule 72 than to observe that the order made by the trial judge was not an order made on consent. The trial judge simply took the positions of the parties into account in proceeding as she did not deal with the issue as if it were a consent matter. I see no violation of Rule 72 and I see nothing wrong with the trial judge taking Mrs. W.’s position into account as she did.
In my opinion, the appeal court judge also erred in imposing an obligation on the trial judge to determine if Margaret’s grandfather and his wife “remained willing to undertake Margaret’s care”, and in holding that if they were willing to care for her, the trial judge should have considered whether the C.A.S. has taken “adequate steps” to investigate the proposal that Margaret live with her grandparents.
Mrs. W. was represented by competent counsel at the status review hearing. As I have said, through her counsel, Mrs. W.
abandoned the proposal that Margaret live with her grandfather and his wife in Smithers, British Columbia. No one, including Mrs. W.’s counsel, asked for an adjournment, even for the limited purpose of further considering the matter. The court was not advised that Mrs. G. (the step-grandmother) needed additional time (or money) to travel from British Columbia to Ontario to give evidence. No one requested that the C.A.S. undertake some further investigation, such as the preparation of a homestudy report, in respect of the British Columbia proposal. Indeed counsel for Mrs. W. was told before the status review hearing began that the C.A.S. would not have a homestudy report concerning Margaret’s placement prepared for the hearing.
The C.F.S.A. provides that the form for the resolution of issues on a status review hearing is a court. The trial judge is not an investigator; she has an adjudicative function. I do not think that the power conferred by s. 49 of the C.F.S.A., which permits the trial judge to call witnesses, changes the essential nature of the trial judge’s role, or of the proceedings. Although the court has the power under s. 49 to summon a witness, for the most part it must be for counsel to determine the course that the hearing will take. This was not a case where the trial judge was required to intervene, on her own motion, by exercising the powers conferred upon her by s.
49 of the C.F.S.A.
I see nothing in the C.F.S.A. to suggest that on a status review hearing, once it is determined that a child is in continued need of protection, a familial plan, or proposal, is automatically to be given some elevated status, or to somehow be preferred simply because it proposes familial care.
The C.F.S.A. pursues a least restrictive alternatives mandate. This is made clear by ss. 57(3) and 65(3)(h). The court is required to consider alternatives to society care before granting Crown wardship. It must also be satisfied that other alternatives have failed before removing a child from a parent’s care and custody. When a child is found by the court to be in need of protection, before removing the child from what I shall refer to as parental care, the court is required
to consider the possibility of placing the child with a relative, with a neighbour, or with a member of the child’s community or extended family. These considerations led to Margaret being taken from her mother and placed with her uncle in 1991.
On a status review hearing under s. 65, once it is established that the child is in continued need of protection and court intervention continues to be necessary, the court is required to consider the least restrictive alternatives
consistent with the child’s best interests. This may or may not involve the potential for some form of familial care. I do not think that on a status review hearing, a plan proposed by “extended family” (s. 57(4)), is to be given a prima facie elevated status.
Values which the C.F.S.A. seeks to preserve through s. 57(3) and (4) come into play when the child is removed from the care of the person in charge of the child immediately before state intervention. It is at that point that relatives, neighbours, and extended family are given a sort of priority consideration. This is because these potential placements may be in a child’s best interests because they tend to be less intrusive. When more permanent steps are in issue, as was the case here, once it is determined that the child is in continued need of protection and that the court intervention is required, the court is required to consider among other things, the least restrictive alternative (s. 65(3)(h)) consistent with the pervading principle of the child’s best interests. That is not to say a plan of care advanced by a relative, or extended family, may not be the least restrictive alternative and be a plan consistent with the best interests of the child. Such a plan should, in my view, simply be considered with other viable options.
On a status review hearing, if the child’s mother wishes to advance a competing plan or proposal, there is no statutory requirement that the plan or proposal be in writing.
Nonetheless, in 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. The C.A.S. is not
required to investigate any and every placement proposal. It is in the interests of those advocating a competing plan to advance the most persuasive alternative that they can formulate. It is then incumbent upon the C.A.S. to challenge that proposal through cross-examination or otherwise. That was done in this case before the B.C. placement proposal was abandoned.
It may well be that a plan or placement proposal different from that advanced by the C.A.S. will require further investigation and perhaps the preparation of a home study report. However, not every placement proposal will require such a response.
To conclude on this issue, apart from the impact of the fresh evidence, it seems to me that the appeal court judge was wrong in holding that the trial judge erred in not making further inquiries with respect to Mrs. W.’s proposal that Margaret be cared for by her grandparents in Smithers, British Columbia. I do not think that the trial judge erred in failing to adjourn the trial to determine whether Margaret’s grandfather and his wife were still willing to care for her and assuming that they were, to permit, and indeed require, the C.A.S. to develop information with respect to this plan of care, Mrs. W., through her counsel, abandoned.
(iii) The C.A.S. plan (s. 56) and the role of counsel for the child
Margaret’s father submits that the C.A.S. failed to provide a plan in writing which met the requirements of s. 56 of the
C.F.S.A. I do not agree. Section 56 of the C.F.S.A. imposes an obligation on the C.A.S. to prepare and file a plan in writing which satisfies the provisions of s. 56(a), (b), (c), (d) and (e). Although the C.A.S. plan was not made an exhibit, it
was filed with the court. There was never any doubt as to the order for Margaret’s care sought by the C.A.S. In my view, the
C.A.S. complied with s. 56. Nor do I see any merit in Margaret’s father’s submission that the Official Guardian, as Margaret’s counsel, acted inappropriately in supporting the C.A.S.’s Crown wardship without access position: see Strobridge
v. Strobridge (1994), 18 O.R. (3d) 753, 4 R.F.L. (4th) 169
(C.A.). We did not call upon counsel for the applicant or the Official Guardian to respond to Mrs. W.’s submissions on these issues and I would not give effect to them.
(iv) Bonding
The trial judge clearly considered, and took into account, bonding between Margaret and Mrs. W. and between Mrs. W. and Margaret. However, the appeal court judge concluded that the trial judge erred because she used the evidence of Mrs. W.’s proposal (or her support of the grandparents’ proposal) that Margaret be placed with Mr. and Mrs. G. in Smithers, British Columbia as evidence of a lack of bonding between mother and child. I think the appeal court judge was wrong in approaching this issue as she did. In the first place, Mrs. W.’s proposal that Margaret live with her grandfather and his wife in B.C. could provide some, albeit limited, circumstantial support for the C.A.S.’s position that there was no substantial bonding between Mrs. W. and Margaret. Second, and in any case, the trial judge’s reasons must be looked at as a whole and the issue of bonding must be assessed in the context of the evidence and the parties’ positions at trial.
The issue of bonding between Mrs. W. and Margaret was a very much secondary issue at the status review hearing. As I noted earlier, through her counsel, Mrs. W. acknowledged that Margaret should not be in her custody. Thus, bonding, as a practical matter, was an issue of significance only in the light of Mrs. W.’s position that there should be an order of Crown wardship, but with access. I see no error on the part of the trial judge with respect to the manner in which she dealt with bonding. She applied the proper principles and her reasons on this issue more than satisfy the requirements of s. 53(1) of the C.F.S.A. There is no doubt that Mrs. W. loved her daughter and that the trial judge recognized this. The trial judge did no more than to conclude that, when weighed with all of the other relevant considerations, bonding between Mrs. W. and her daughter was not a basis upon which to conclude that the appropriate order was Crown wardship with access would be in Margaret’s best interests. Even if the trial judge was wrong in
relying on Mrs. W.’s support of the B.C. placement proposal as she did, it seems to me that there is ample evidence to support the trial judge’s conclusion on the issue of bonding between Mrs. W. and Margaret.
The Further (Fresh) Evidence
I now turn to consider the further evidence filed in this court. Before I refer to the content of the further evidence I want to make some general observations concerning the admission of further evidence in cases involving children.
The admission of further evidence on appeals to this court is governed by s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. It provides:
134(4) Unless otherwise provided, a court to which an appeal is taken may, in a proper case,
. . . . .
(b) receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as the court directs . . .
to enable the court to determine the appeal.
Looked at generally, finality and certainty are significant factors which militate against the wholesale admission of further evidence in civil proceedings: see John Sopinka and Mark A. Gelowitz, The Conduct of an Appeal (Markham: Butterworths, 1993), and Cross on Evidence, 7th ed. (London: Butterworths, 1990). These concerns were at the root of Rinfret J.’s conclusion in Varette v. Sainsbury, [1928] S.C.R. 72, [1928] 1 D.L.R. 273, that further evidence in civil cases should be admitted only “where the new evidence proposed to be adduced could not have been obtained by reasonable diligence before the trial and the new evidence is such that, if adduced, it would be practically conclusive”.
There are, of course, exceptions to most rules. For example,
in Hill v. Church of Scientology of Toronto (1994), 18 O.R. (3d) 385, 114 D.L.R. (4th) 1 (C.A.), this court admitted further evidence the effect of which was that a defendant in a libel case repeated the libel after a trial in which punitive damages had been awarded. In admitting the further evidence, the court acknowledged that the use to which the further evidence was put fell outside the typical framework for the admission of fresh evidence. The court said, at p. 460:
Section 134(4)(b) of the Courts of Justice Act permits appellate courts to receive further evidence. Usually an appellate court is asked to receive further evidence for the purpose of setting aside a verdict or a judgment given at trial. There does not appear to be any reason in principle why, in a proper case, further evidence could not be received by the court to show that the judgment under appeal is correct. Obviously, in such a case, the further evidence must meet the conditions of admissibility of such evidence.
Some statutory provisions, such as s. 69(6) of the C.F.S.A., provide for the admission of further evidence. The provisions of s. 69(6) of the C.F.S.A. apply only on an appeal from the trial judgment of a provincial court judge to the Ontario Court (General Division). Section 69(6) of the C.F.S.A., unlike s.
43(8) of its predecessor statute, the Child Welfare Act, R.S.O. 1980, c. 66, limits further evidence to events “after the appealed decision”. One might conclude that the legislature intended to limit somewhat the basis upon which further evidence would be admitted in C.F.S.A. proceedings given the absence of any reference to events before the appealed decision consistent with the further evidence provisions of the Child Welfare Act.
The issue of the admission of fresh evidence in child welfare cases was addressed in M. (C), supra. In that case
L’Heureux-Dub J. approved this court’s decision in Genereux v. Catholic Children’s Aid Society of Metropolitan Toronto (1985),
53 O.R. (2d) 163, 24 D.L.R. (4th) 264. Genereux was decided under the Child Welfare Act, not long before that Act was replaced by the C.F.S.A. In Genereux, Cory J.A. (as he then was) referred to s. 43(8) of the Child Welfare Act which
permitted the introduction of “further evidence relating to matters both preceding and subsequent to the making of the decision being appealed”. He concluded that the appeal court judge was granted a “wide discretion”, in deciding whether or not to admit further evidence. Cory J.A. said at pp. 164-65:
It can be seen that the judge hearing the appeal is granted a very wide discretion with no restrictions imposed. This is remedial legislation dealing with the welfare of children. It should be broadly interpreted. Undue restrictions should not be placed upon it. Specifically, narrow restrictions should not be read into the section when they do not appear in the legislation.
The judge on appeal, bearing in mind that he is dealing with the welfare of children, may determine that he will exercise his discretion and will hear further evidence so long as it is relevant to a consideration of the best interests of the child.
In C.F.S.A. cases, consistent with Genereux and M. (C.), it seems to me that more flexible standards for the admission of further evidence must be accepted. In some cases the further evidence will amount to little more than a status report concerning the child’s circumstances as of a time close to the time when the appeal is argued. I do not think that in family law cases, particularly those involving children, the further evidence has to meet the Varette test, or the requirements for the admission of further evidence in criminal cases: see R. v. Stolar, [1988] 1 S.C.R. 480, 52 Man. R. (2d) 46; R. v. Palmer,
[1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212. That being the
case, I do not think that further evidence, if admitted, should inexorably lead to a new trial, or the reversal of the trial judgment. In cases involving children, the fresh evidence, if admitted, must be reviewed with the other evidence in determining what the appropriate disposition of the appeal should be.
I do not wish to be taken to have concluded that in cases involving children, further evidence will always be admissible. In most cases, it will not be necessary. This is an exceptional
case as a result of the introduction of an issue (the B.C. placement proposal) which was not developed at trial, in my view, for sound reasons.
The further evidence here generally falls into two compartments. First, it purports to explain why Mrs. G., Margaret’s step-grandmother, did not come to Ontario to give evidence at the status review hearing. Second, it sets out the general circumstances bearing upon Margaret’s potential placement with her step-grandmother and grandfather in British Columbia.
With the benefit of the further evidence, it remains unclear to me why Mrs. G. did not appear at the status review hearing. In her February 22, 1994 affidavit she says that her husband (Margaret’s grandfather), did not appear at the status
review hearing because he had to remain in B.C. to sign documentation to continue his entitlement to unemployment insurance benefits. In the same affidavit she explains her failure to attend the trial by stating that Mrs. W.’s counsel did not tell her when to travel from B.C. to Ontario for the status review hearing. She also suggests in her affidavit that
C.A.S. social workers discouraged her from attending the status review hearing. The affidavit of Anne-Marie Duguay, the C.A.S. social worker assigned to Margaret’s case, takes direct issue with this. Ms. Duguay denies ever discouraging Mrs. G. from attending the status review hearing. In addition, Ms. Duguay aptly notes that Mrs. G.’s explanation for not attending the status review hearing is not consistent with Mrs. W.’s trial evidence. At trial, Mrs. W. said that her father and step- mother could not attend because of “financial and other reasons”. Mrs. G.’s affidavit makes no reference to financial problems as a cause of her non-attendance.
In her affidavit, Mrs. G. identified herself as “the proposed caretaker for Margaret”. Mrs. G. is 57. She cares for her grandsons Patrick and Timothy, age 12 and 9. Both have significant problems. The older boy, Patrick, has fetal alcohol syndrome. He is immature and has a mercurial disposition. He needs vigilant support at home and at school. Timothy has fetal alcohol effects. Timothy’s problems are not as pronounced as
Patrick’s, however, he too has a somewhat mercurial disposition and needs ongoing support at home and school.
I do not think it is necessary to dwell upon the problems of Patrick and Timothy at present. It will be sufficient to say that their problems are ongoing and that from the standpoint of their grandparents, Mr. and Mrs. G., an enormous commitment to their care is required. Both children, particularly Patrick, have to be very carefully monitored. They need as close to one- on-one attention as can be made available. By all accounts
Mrs. G., and when her husband is at home, Mr. G. are providing satisfactory care for Patrick and Timothy, with whom they apparently have a good relationship. The evidence discloses that at least Mrs. G. is committed to caring for Patrick and Timothy.
The further evidence filed by Mrs. W. includes a homestudy report, prepared at the request of counsel for Mrs. W., by Bea Sarac, M.S.W., as of December 29, 1994. It sets out, among other things, the home-related circumstances of Mr. and Mrs. G. in Smithers, B.C. The homestudy report must, of course, be read with the further evidence tendered by the appellant C.A.S. in response to it. This evidence includes the affidavit of Jackie Chapman, a C.A.S. social worker responsible for Margaret’s case, a report from Margaret’s play therapist, an affidavit from Margaret’s foster mother that sets out Margaret’s current circumstances and needs, an affidavit of Joan Wilmot, a financial worker with the B.C. Ministry of Social Services concerning the status of Mr. and Mrs. G. and two reports from Dr. Maureen Joyce, a psychologist who has had extensive involvement with Margaret. Dr. Joyce’s reports provide up-to- date expert evidence of Margaret’s circumstances and an assessment of her needs.
The homestudy report provides the evidentiary basis upon
which the respondents (other than the Official Guardian) submit that a new trial is required. The respondent takes the position that the homestudy report (coupled with Mrs. G.’s explanation for not attending the status review hearing) compels the conclusion that the B.C. placement proposal requires examination at a new trial, whether or not the appeal court
judge was correct in concluding on her review of the status review hearing record that a new trial was required. As a result, I think it is necessary to review the homestudy report with some care.
In my opinion, the homestudy report is deficient in a number of respects. Looked at generally, it seems to me that it fails to address the critical issue whether Mr. and Mrs. G., however willing they may be, can meet Margaret’s needs were Margaret to be placed with them and their two grandsons in Smithers, B.C. There are a number of factors relevant to this critical issue which are not in dispute or conflict. For example, there is general agreement as to Margaret’s profound problems and needs. There is no conflict in the evidence that Margaret is adoptable. There is general agreement as to the problems and needs of the G.s’ grandsons, Patrick and Timothy, and as to location and layout of the G.s’ residence outside Smithers, B.C.
In my view, the homestudy report does not come to grips with the central issue of the likely consequences of adding Margaret to Mr. and Mrs. G.’s home in Smithers, B.C. The issue is not just the G.s’ willingness and abstract capacity to care for Margaret but rather whether, given their circumstances in Smithers, B.C., it would be in Margaret’s best interests to be placed with Mr. and Mrs. G. and their two grandsons Patrick and Timothy.
Mr. and Mrs. G. are already caring for two boys who have serious problems. As I have said, both boys have learning disabilities and mercurial temperaments. It is abundantly clear that they present major management difficulties. The homestudy report does not address the potential compounding effect that Margaret’s addition to the G. family may have. For example, it does not address the potential problems which may well result as a consequence of Margaret’s propensity to be sexually precocious, if she were to live in the same house as Patrick and Timothy. In my opinion, this represents an obvious and serious deficiency in the homestudy report.
Margaret’s foster mother’s evidence, and the expert evidence
establishes that Margaret needs one-on-one care. I acknowledge that while in foster care she has been sharing her foster- mother’s attention with her foster parents’ natural
children. Nonetheless, the opinion that she needs, and would benefit from, one-on-one care remains intact. It is plain that even in the best of circumstances, and even given the best of intentions, Margaret will not receive one-on-one care in Smithers, B.C. The homestudy report does not come to grips with this fact.
Further, the homestudy report does not really address what I view to be obvious accommodation problems. The G.s live in a trailer home about a mile from Smithers, B.C. The trailer has three bedrooms. One is occupied by Mrs. G. Patrick and Timothy each have their own bedrooms. There is no separate accommodation available for Margaret. There is some reference in the material to the G.s’ intention to seek funding to assist them in expanding their residence. There is nothing to guarantee that this will happen. What is of particular importance, in my view, is that the homestudy report does not address this issue at all.
In addition, although Ms. Sarac in her homestudy report
refers to Mrs. G.’s age (57), she does not address the combined effect of Mrs. G.’s age and health in considering what I view to be the central issue whether it would be in Margaret’s best interests to be placed in Smithers, B.C. The evidence indicates that Mrs. G. has asthma and cannot walk excessive distances.
She is not able to drive. This coupled with the fact that the G.s’ home is in a trailer park outside Smithers is obviously important. The homestudy report fails to realistically address the issues of Mrs. G.’s age and mobility limitations.
In her affidavit sworn March 2, 1995, Mrs. G. responds to concerns related to her health and problems with her mobility, by stating that she has not been to a doctor for seven years. She makes no attempt to respond directly to the evidence which suggests that her mobility is limited. Instead, she attacks the suggestion advanced indirectly by Ms. Chapman that Mrs. G. is overweight. She rightly rejects this as a basis for concluding that she would be unable to care for Margaret.
The further evidence raises the issue of the status of Mr. and Mrs. G. — that is whether or not they are separated. This
is an issue of some significance in that Mr. G.’s participation in the care of Patrick and Timothy and in the potential care of Margaret is fundamental to the proposal for Margaret’s care advanced by Margaret’s mother and by Mr. and Mrs. G.
Some facts bearing upon the issue of the status of Mr. and Mrs. G. are clear. There is no doubt that Mrs. G. applied for social benefits on the basis that she was separated from her husband and that in May 1994, she was granted benefits on the basis of her claimed status as a separated person. She apparently received an additional $546 each month because she was separated from her husband. She was advised by Joan Wilmot, a financial services worker with the B.C. Ministry of Social Services, that she was obliged to report any change in her status to the Ministry. The affidavit evidence establishes that as of March 1995, the Ministry has not been advised of any change in Mr. and Mrs. G.’s status.
Mrs. G. explains, in her affidavit sworn February 28, 1995, that she is separated from Mr. G. only because he stayed in Terrace, B.C. while taking a cooking course and that “he visits the children occasionally”. She says that Mr. G. comes home on some, but not all, weekends. She said that when he does come home he sleeps on a couch in the livingroom. Thus, Mrs. G. takes the position that she and her husband are not separated and that they never were separated in the family law sense.
This is clearly not the basis upon which additional social assistance was made available to her in May 1994.
Ms. Sarac, the author of the homestudy report, stated in her affidavit that her understanding is that Mr. and Mrs. G.’s marriage is “strong” and that they are not separated by “anything other than the distance involved from Smithers to Terrace, B.C.” Ms. Sarac says nothing about the fact of Mr. G.’ s absence in the context of his ability to assist with the
care of the children, or with Mrs. G.’s statement to Ms. Wilmot concerning the uncertainty of the relationship between Mr. and Mrs. G.
In her responding affidavit sworn March 2, 1995, Mrs. G. states that Ms. Wilmot was “confused” on the separation issue. She states that Mr. G. is in Terrace taking a cooking course and that he cannot return home every weekend. She does not say why. She denies that she and her husband are separated by anything other than distance. Neither Mrs. G. nor Ms. Sarac came to grips with the central issue of the extent to which Mr.
G. will be around to assist in parenting Margaret were she to move to Smithers. Moreover, Mrs. G. seems to have a discordant relationship with consistency, if not the truth, when dealing with this issue and the reasons for her failure to attend the status review hearing.
Nor does the homestudy report address the fact that, as set out in the homestudy report, Mr. G. will soon complete only the first year of a three-year course in March 1995. Assuming that to be correct, it would follow that he will be away from home frequently during the next two school years.
The further evidence provides some information that the teachers at the elementary school in Smithers, B.C. that Margaret would attend, and that Patrick and Timothy do attend, have serious reservations about Margaret going to school in Smithers. When Ms. Chapman questioned Ms. Sarac about her homestudy report generally, Ms. Sarac told her that “the school people hope that they [the G.s] do not get Margaret”. Ms. Sarac also informed Ms. Chapman that she had been advised that the facilities in Smithers were not “the greatest” because of the pupil-teacher ratio and a lack of funding. Ms. Sarac did not refer to these matters in her homestudy report.
Because of the information she received from Ms. Sarac, Ms. Chapman spoke to two teachers at Walnut Park Elementary School in Smithers. She was advised by one of those teachers that Mrs.
G. cannot walk excessive distances such as the two blocks between the school and her home. The teacher also stated that Mrs. G. is unable to go to the town swimming pool or library as other parents on occasion do with a school class. The teacher also told Ms. Chapman that Patrick operates at a Grade 3 level and that “he requires one-to-one behaviour assistance every
second. He is hard to control, he is strong-willed and he will scream if he doesn’t get his way.” The teacher expressed concern as to how Patrick and Timothy would respond to the addition of Margaret to the G. family. According to Ms. Chapman she stated, “I am scared and I do not know how the boys will handle it. The boys are pretty fragile, and with another child there, that will be a lot.” In the end the teacher suggested that she and other teachers had strong reservations about Margaret’s possible move to Smithers.
The issue of the adequacy of the school facilities that would be available for Margaret and the teachers’ opinions about adding Margaret to the G.s’ family seem to me to be of obvious importance. Neither issue was addressed in the homestudy report. According to Ms. Chapman’s affidavit, important facts concerning these issues only came to light after Ms. Chapman told Ms. Sarac that she was going to contact the Smithers school staff. It was at that point that Ms. Sarac disclosed the problems set out in paras. 20, 21 and 22 of Ms. Chapman’s affidavit.
Ms. Sarac’s explanation for not including this relevant information in the homestudy report was that she thought that the teachers were “skewed” in their concerns and that her homestudy report attempted to offer a “summary comment” only.
Ms. Chapman’s affidavit makes extensive reference to the fundamental views of Ms. Sarac. She reports that, in discussing the homestudy report with Ms. Sarac, it became evident that Ms. Sarac favoured the Smithers, B.C. placement option because of her view that “family is fundamental”. Ms. Sarac indicated that she prefers the certainty of placement with extended family to foster care or adoption. Thus, Ms. Sarac, according to Ms.
Chapman, has a bias in favour of natural families. Ms. Sarac does not take issue with Ms. Chapman’s comments concerning Ms. Sarac’s view that family is fundamental or with Ms. Chapman’s assessment that Ms. Sarac was biased in favour of natural families.
Conclusion
I do not think that the further evidence elevates the proposal that Margaret live with her step-grandmother, and perhaps with her grandfather, in Smithers, B.C. to a level where a new trial is required. To put it bluntly, the proposal that Margaret be placed in Smithers makes no sense once it is exposed to even superficial analysis. Mr. and Mrs. G., who I accept are well-intentioned, seem to have, at best, a superficial appreciation of the problems Margaret presents and of her profound needs.
The statutory provisions requiring consideration of extended family and a least restrictive placement consistent with a child’s best interests are in the C.F.S.A. for a purpose and that purpose would not, in my view, be served by placing Margaret with Mr. and Mrs. G. They barely know Margaret and Margaret does not know them. They have not, by ongoing contact with Margaret, set the stage for a transition from foster care in Ontario to extended family care in B.C. in any meaningful way. I note in this regard that when Mrs. G. came to Toronto in February 1994, she made no attempt to contact Margaret directly or through the C.A.S. In addition, Mr. and Mrs. G. have not established a less direct contact with Margaret through gestures such as cards and gifts at Christmas and on her birthday.
In addition, as I have said, the G.s’ family circumstances in Smithers, B.C. are important. Mrs. G. is caring for two young boys who require almost constant attention at home and at school. I see serious potential problems in the G.s’ household if Margaret were added to it.
Margaret’s needs are not in dispute. She needs one-on-one care and play therapy. She manifestly will not get either in Smithers, B.C. which is four and one-half hours by car from Prince George, which is the nearest city where play therapy is available. Mrs. G.’s mobility problems also weigh against the
B.C. placement proposal as do the somewhat inadequate accommodations available in the G.s’ trailer home.
Finally, there is the argument that the known is to be preferred over the unknown, that the certainty of an extended
family placement in B.C. should be preferred over the uncertainty of adoption. In my opinion, this argument is fallacious. There is clear evidence that, notwithstanding her deficiencies, Margaret is adoptable, that is, that there are qualified parents who will seek to adopt her. Although they are nameless, there is relative certainty in the attributes that prospective adoptive parents will possess and bring to Margaret’s care. Ms. Abrams makes this clear in her evidence where she stated that prospective adoptive parents will be screened to achieve a match between their qualities as parents and Margaret’s needs.
Time is important in the life of a young child. Margaret was five when she was first placed in care. She was six when she came to live with her foster parents Mr. and Mrs. J. She was seven when the status review hearing was held in the provincial court. She was eight when the appeal from the provincial judge’s order was argued. She is now almost nine and, by virtue of the new trial order, exposed to the prospect of returning to the position she occupied when she was seven, when she was the focal point of a status review hearing. If there were to be a new trial, allowing for some time to secure a date, Margaret’s status will have been under review for close to 40 per cent of her life. This, although not determinative, cannot be in her best interests.
In result, I would allow the appeal, set aside the order that there be a new trial, and restore the order of Crown wardship without access.
This is not a case for costs.
Appendix “A”
Child and Family Services Act, R.S.O. 1990, c. C.11
49. The court may, on its own initiative, summon a person to attend before it, testify and produce any document or thing, and may enforce obedience to the summons as if it had been issued under the Family Law Act.
. . . . .
53(1) Where the court makes an order under this Part, the court shall give,
(a) a statement of any terms or conditions imposed on the order;
(b) a statement of every plan for the child’s care proposed to the court;
(c) a statement of the plan for the child’s care that the court is applying in its decision; and
(d) reasons for its decision, including,
(i) a brief statement of the evidence on which the court bases its decision, and
(ii) where the order has the effect of removing or keeping the child from the care of the person who had charge of the child immediately before intervention under this Part, a statement of the reasons why the child cannot be adequately protected while in the person’s care.
(2) Clause (1)(b) does not require the court to identify a person with whom or a place where it is proposed that a child be placed for care and supervision.
. . . . .
56. The court shall, before making an order under section 57 or 65, obtain and consider a plan for the child’s care prepared in writing by the society and including,
(a) a description of the services to be provided to remedy
the condition or situation on the basis of which the child was found to be in need of protection;
(b) a statement of the criteria by which the society will determine when its wardship or supervision is no longer required;
(c) an estimate of the time required to achieve the purpose of the society’s intervention;
(d) where the society proposes to remove or has removed the child from a person’s care,
(i) an explanation of why the child cannot be adequately protected while in the person’s care, and a description of any past efforts to do so, and
(ii) a statement of what efforts, if any, are planned to maintain the child’s contact with the person; and
(e) where the society proposes to remove or has removed the child from a person’s care permanently, a description of the arrangements made or being made for the child’s long term stable placement.
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:
1. 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.
2. 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.
3. 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.
4. 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.
(2) 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.
(3) 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),
(a) have been attempted and have failed;
(b) have been refused by the person having charge of the child; or
(c) would be inadequate to protect the child.
(4) 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 (1), 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.
(5) Where the child referred to in subsection (4) is an
Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,
(a) a member of the child’s extended family;
(b) a member of the child’s band or native community; or
(c) another Indian or native family.
(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.
(7) When the court has dispensed with notice to a person under subsection 39 (7), the court shall not make an order for
Crown wardship under paragraph 3 of subsection (1), or an order for society wardship under paragraph 2 of subsection (1) for a period exceeding thirty days, until a further hearing under subsection 47 (1) has been held upon notice to that person.
(8) 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,
(a) the person with whom the child is placed or to whom the child is returned;
(b) the supervising society;
(c) the child; and
(d) any other person who participated in the hearing.
(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.
. . . . .
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,
(a) 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;
(b) order that the original order terminate on a specified future date; or
(c) make a further order or orders under section 57.
(2) 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).
(3) Before making an order under subsection (1), the court shall consider,
(a) whether the grounds on which the original order was made still exist;
(b) whether the plan for the child’s care that the court applied in its decision is being carried out;
(c) 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;
(d) whether the person is satisfied with those services;
(e) whether the society is satisfied that the person has co- operated with the society and with any person or agency providing services;
(f) whether the person or the child requires further services;
(g) 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
(h) what is the least restrictive alternative that is in the child’s best interests.
. . . . .
69(1) An appeal from a court’s order under this Part may be made to the Ontario Court (General Division) by,
(a) the child, if the child is entitled to participate in the proceeding under subsection 39 (6) (child’s 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) where the child is an Indian or a native person, a representative chosen by the child’s band or native community.
(2) Subsection (1) does not apply to an order for an assessment under section 54.
(3) Where a decision regarding the care and custody of a child is appealed under subsection (1), execution of the
decision shall be stayed for the ten days immediately following service of the notice of appeal on the court that made the decision, and where the child is in the society’s custody at the time the decision is made, the child shall remain in the care and custody of the society until,
(a) the ten day period of the stay has expired; or
(b) an order is made under subsection (4), whichever is earlier.
(4) The Ontario Court (General Division) may, in the child’s best interests, make a temporary order for the child’s care and custody pending final disposition of the appeal, except an order placing the child in a place of secure custody as defined in Part IV (Young Offenders) or a place of secure temporary detention as defined in that Part that has not been designated as a place of safety, and the court may, on any party’s motion before the final disposition of the appeal, vary or terminate the order or make a further order.
(5) No extension of the time for an appeal shall be granted where the child has been placed for adoption under Part VII (Adoption).
(6) The court may receive further evidence relating to events after the appealed decision.
(7) An appeal under this section shall be heard in the county or district in which the order appealed from was made.
(8) Section 45 (hearings private, etc.) applies with necessary modifications to an appeal under this section.
Appeal allowed.