Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.)

Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.)
Collection
Supreme Court Judgments
Date
1994-05-05
Report
[1994] 2 SCR 165
Case number
23644
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Ontario
Subjects
Family law
Notes
SCC Case Information: 23644
Decision Content
Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165
C.M. Appellant
v.
Catholic Children's Aid Society of Metropolitan
Toronto and the Official Guardian Respondents
Indexed as: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.)
File No.: 23644.
1993: December 7; 1994: May 5.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for ontario
Family law ‑‑ Appellate court status review under Child and Family Services Act ‑‑ Child taken into protection and ultimately made Crown ward with access to birth parent denied in anticipation of adoption ‑‑ Child's status subject to review under Act ‑‑ Whether fresh evidence admissible on status review ‑‑ Whether status review reconsideration of initial decision or assessment of current situation ‑‑ Interplay between Act's requiring preservation and integrity of family unit if possible and its requiring consideration of best interests of the child ‑‑ Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1, 37(2)(f), (g), (3), 57(1), (3), (9), 58(1)(a), (b), 59(2)(a), (b), (c), (d), 65(1)(a), (b), (c), (3)(a), (b), (c), (d), (e), (f), (g), 69(6), 70(1), (3)(a), (b).
Respondent society took S.M. into protection on several occasions and supervised her mother (C.M.) on the skills of parenting. S.M. has been in the respondent society's care from February 1989 when she was made a ward of the society, on consent, for four months. Throughout this wardship, the society continued to work with C.M. and facilitated regular visits with S.M. Nonetheless, the bonding ‑‑ the development of an interactive relationship and the attachment between S.M. and her birth mother ‑‑ remained minimal. In December 1989, after a second four‑month wardship, the respondent society brought a status review application seeking an order of Crown wardship without access for the purposes of adoption. The appellant opposed the motion and the matter was dealt with sporadically throughout 1991. On February 17, 1992, the Ontario Court (Provincial Division) ordered that S.M. be returned to the appellant on the basis that court intervention was no longer necessary to protect the child. The judge considered C.M. capable of acquiring the skill to care for her daughter adequately. The respondent society obtained a stay of the order and unsuccessfully appealed to the Ontario Court (General Division). The Court of Appeal granted a stay of the order for return pending appeal and a motion for the introduction of fresh evidence. It allowed the appeal, set aside the order for the return of the child to the mother and ordered that the child be made a Crown ward, without access, for the purposes of adoption. The appellant birth mother, C.M., appealed this order. The main issue was the interpretation of Ontario's Child and Family Services Act, particularly with respect to status review applications. An incidental question concerned the introduction of fresh evidence on appeal. The new evidence sought to be admitted concerned the consistent and repeated assertions of the child that she regarded her foster family as her real family, that she did not want to see her birth mother and that attempts to implement access visits with the birth mother had become almost impossible because of the child's negative reactions ‑‑ emotional, psychological and physical going to her very well‑being ‑‑ to them.
Held: The appeal should be dismissed.
(a) Fresh Evidence on Appeal
Section 43(8) of the Child Welfare Act deals with the admission of fresh evidence on appeal. The test formulated in Re Genereux and Catholic Children's Aid Society of Metropolitan Toronto with respect to similar remedial legislation, that the judge on appeal may exercise his or her discretion and hear further evidence so long as it is relevant to a consideration of the best interests of the child, probably did not intend to depart significantly from the four‑part test in R. v. Palmer and R. v. Stolar. It is very attune to the philosophy and objectives of the Act and should be applied in cases determining the welfare of children where accurate and up‑to‑date information is essential. 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.
Both the Court of Appeal and this Court were entitled to consider the fresh evidence submitted; it met the test for admission. This evidence could not have been adduced before, was highly relevant in that it enabled the court to make determinations on an accurate picture of the situation at hand, was potentially decisive as to the child's best interests and was credible. In addition, the evidence was uncontroverted and bridged the gap between the evidence submitted before the Court of Appeal in May 1993 and the present situation.
(b) The Status Review Hearing
The Child and Family Services Act specifies the procedure to be followed, the evidentiary requirements under this process and, most of all, spells out the objectives of the legislation in s. 1. The first and "paramount" objective is the promotion of "the best interests, protection and well-being of children". 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. Status review hearings are part of the procedure set out in the Act to insure that the child protection policy directives are being properly carried out by the orders made under the Act and, to that end, all orders made pursuant to s. 57(1) are subject to time limits and to review pursuant to s. 64(1).
The function of the status review hearing is not to retry the original need for a protection order but rather to evaluate whether there is a need for a continued order for protection. Once a finding of the need for protection has originally been made, there is still the requirement, upon a status review, to consider whether the child is or is no longer in need of future protection. Children's needs are continually evolving and these ever‑changing circumstances must be taken into account. The courts must continually evaluate the need for state intervention in order to insure that the objectives of the Act are being met. The determination of continued need cannot be res judicata with respect to s. 57(1) of the Act.
A two‑fold examination must be undertaken on a status review. The first 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. Regardless of the conclusion reached at this first stage, the need for continued protection encompasses more than the examination of the events that triggered the intervention of the state in the first place. The court must look at the child's best interests. This flexible approach is in line with the objectives of the Act, as it seeks to balance the best interests of children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail. In determining what is in the child's best interest, the Act provides extensive guidance. Notwithstanding the specific provisions of the Act, however, traditional discussions with respect to best interests remain highly relevant. The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding and the child's desires, which the Act contemplates as well.
Within the realm of the "best interests of the child", the most important factor in this case concerned the psychological bonding of the child to the foster family. The emotional well‑being of a child is of the utmost importance, particularly where the evidence points to possible long-term adverse consequences resulting from the removal of the child from his or her foster family and the return to his or her birth parents. The focus of maintaining family units is only commensurate as long as it is in the best interests of the child; otherwise it would be at cross purposes with the plain objectives of the Act. The best interests of a child require different solutions over time and such interests may have to take precedence over any parental interests.
The need for continued protection was easily established here. The determination of whether the child continues to be in need of protection cannot solely focus on the parent's parenting ability. It must also have a child‑centred focus and must examine whether the child, in light of the interceding events, continues to require state protection.
(c) Access
Once Crown wardship has been ordered, s. 58(1) of the Act creates a presumption against access. Section 59(2) specifies the unusual circumstances in which access can be ordered. The burden is that of the applicant. Here, none of the exceptions set out in s. 59(2) was applicable or proven. Although there may be cases where temporary or transitional access could be beneficial to the child, the situation here did not allow for such a solution.
Cases Cited
Applied: Re Genereux and Catholic Children's Aid Society of Metropolitan Toronto (1985), 53 O.R. (2d) 163; referred to: Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Price, [1993] 3 S.C.R. 633; Nova Scotia (Minister of Community Services) v. S. (S.M.) (1992), 41 R.F.L. (3d) 321; Children's Aid Society of Renfrew County v. L.P.W. (1989), 32 O.A.C. 394; M.M. v. B.M. (1982), 37 O.R. (2d) 716; B.(R.) v. Children's Aid Society of Metropolitan Toronto (1992), 43 R.F.L. (3d) 36; Racine v. Woods, [1983] 2 S.C.R. 173; King v. Low, [1985] 1 S.C.R. 87; Young v. Young, [1993] 4 S.C.R. 3; Re Baby Duffell, Martin v. Duffell, [1950] S.C.R. 737; L.(K.) v. C.A.S., Stormont, Dundas and Glengarry (1988), 12 R.F.L. (3d) 76; Children's Aid Society of Ottawa v. G.M. (1978), 3 R.F.L. (2d) 226; Catholic Children's Aid Society of Metropolitan Toronto and G. (C.), [1986] O.J. No. 1746 (Q.L.); Children's Aid Society of Halifax v. A. (M.), [1986] N.S.J. No. 423; Children's Aid Society of Winnipeg v. Frohnen, [1975] 2 W.W.R. 27; In re McGrath, [1893] 1 Ch. 143; Re Moores and Feldstein (1973), 12 R.F.L. 273; C.C.A.S. of Metro. Toronto v. H.(K.) (1987), 6 R.F.L. (3d) 1 (Ont. Prov. Ct. (Fam. Div.)), rev'd (1988), 21 R.F.L. (3d) 115 (Ont. Dist. Ct.), aff'd sub nom. G.(C.) v. H.(J.) (1989), 23 R.F.L. (3d) 300; G. (A.) v. C.C.A.S., Metro. Toronto, Ont. Gen. Div., No. 105/89, September 19, 1990, summarized at [1990] W.D.F.L. 1222; New Brunswick (Minister of Health and Community Services) v. C. (G.C.), [1988] 1 S.C.R. 1073; New Brunswick (Minister of Health and Community Services) v. S.G. and S.A. (1989), 100 N.B.R. (2d) 357; Langille v. Children's Aid Society of Halifax, N.S.C.A., June 18, 1993, unreported; Winnipeg Child & Family Services v. F.(A.C.) (1992), 42 R.F.L. (3d) 337; Tearoe v. Sawan, B.C.C.A., Victoria Registry No. V01916, August 19, 1993, unreported.
Statutes and Regulations Cited
Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1(a), (b), (c), (d), 37(2)(f), (g), (3), 57(1), (3), (9), 58(1)(a), (b), 59(2)(a), (b), (c), (d), 65(1)(a), (b), (c), (3)(a), (b), (c), (d), (e), (f), (g), 69(6), 70(1), (3)(a), (b).
Child Welfare Act, R.S.O. 1980, c. 66, s. 43(8).
Children and Family Services Act, S.N.S. 1990, c. 5, s. 49(5).
Rules of the Provincial Court (Family Division), R.R.O. 1980, Reg. 810, s. 70.
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 62(3) [am. by S.C. 1990, c. 8, s. 31].
Authors Cited
Barnhorst, Richard F. "Child Protection Legislation: Recent Canadian Reform", in Barbara Landau, ed., Children's Rights in the Practice of Family Law, p. 255. Toronto: Carswell, 1986.
Coleman, Phyllis. "A Proposal for Terminating Parental Rights: `Spare the Parent, Spoil the Child'" (1993), 7 Am. J. Fam. L. 123.
Dreidger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
MacKinnon, Jennifer. "Best Interests of the Child in Protection Hearings: A Move Away From Parental Rights?" (1980), 14 R.F.L. (2d) 119.
McCall, M. L. "An Analysis of Responsibilities in Child Welfare Systems" (1990), 8 Can. J. Fam. L. 345.
Wilkins, H. D. Status Review Applications. Canadian Bar Association (Ontario), Continuing Legal Education Program on The Child and Family Services Act. March 22, 1986.
APPEAL from a judgment of the Ontario Court of Appeal allowing an appeal from a judgment of Macdonald J. dismissing an appeal from an order of Bean Prov. Ct. J. Appeal dismissed.
Ian R. Mang and T. Michele O'Connor, for the appellant.
Marvin M. Berstein and Allan S. Maclure, for the respondent Catholic Children's Aid Society of Metropolitan Toronto.
Elaine Freedman, Q.C., and Catherine Bellinger, for the respondent the Official Guardian.
The judgment of the Court was delivered by
L'Heureux-Dubé J. -- This appeal arises from a dispute between the Catholic Children's Aid Society of Metropolitan Toronto ("respondent society") and the mother, C.M., of a young child, S.M., now 7½ years old, as to the need for protection and adoption of the child, and involves the interpretation of the Ontario Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA or Act) provisions regarding status review hearings. The interaction between the best interests of the child and the many other considerations referred to in the Act with respect to status review applications is at the heart of the present appeal.
Facts
The appellant mother, C.M., came to Canada from Portugal, in 1979, at the age of twenty. She worked in a restaurant and a hotel until 1984, when she had a child whom she subsequently gave up for adoption. Soon thereafter, she went back to Portugal for a two-year period, returning to Canada in December 1985. Upon her return, she worked in a chicken factory until the birth of her daughter, S.M., on September 28, 1986. A year later, the father of the child was forced to leave the country because of immigration difficulties.
The appellant's first contact with the respondent society was on October 24, 1986, when S.M. was one month old. Four months later, on February 27, 1987, S.M. was taken into protection by the respondent society on the basis of information that the appellant had a history of leaving her daughter alone, did not adequately care for the child, had physically abused the child and had threatened to kill her. The child was left in the care of C.M., subject to an order for supervision. It seems, however, that during this supervisory period there was very little improvement in the manner in which C.M. cared for her young daughter and, consequently, on June 15, 1987, S.M. was apprehended and, three days later, placed in the care of the society. Following this, on October 22, 1987, S.M. was found to be in need of protection and made a ward of the respondent society for two months. Upon expiration of the order, S.M. was returned to her mother's care for a six-month period, once again under the supervision of the respondent society. During this period, despite the efforts of the society to assist C.M. in learning to care properly for her young daughter, difficulties continued and, although C.M. accepted the assistance of the respondent society's social workers and psychologists, improvements continued to be minimal. According to the evidence adduced at trial, C.M. did not have a good understanding of her daughter's needs and abilities and, as a result, her parenting skills remained weak and the bond between mother and child failed to unfold properly. In December 1987, the respondent society, once again, applied to have S.M. returned to its care and custody and such order was granted. The child remained in the care of the respondent society until March 19, 1988 when, following an order that the child be returned to her mother, another attempt was made at reintegrating the child into her natural home under a supervision order. Throughout this time, as they had in the past, the respondent society and C.M. cooperated to better the appellant's parenting skills in order that she could meet her daughter's physical, psychological and emotional needs. However, despite the efforts made, the appellant's capabilities did not improve and she often had difficulty understanding the need for the continued services and treatment of the respondent society. As a consequence of the limited success of such assistance, the supervision order was terminated on October 6, 1988 pursuant to an agreement whereby the respondent society and the appellant would continue to work together voluntarily.
On February 22, 1989, S.M. was again apprehended and taken into protection by the respondent society. The incident which precipitated the protective measure involved C.M.'s entering a bank with her daughter (who was crying and found in need of care) and screaming that someone was trying to kill her. As a result, C.M. was hospitalized and S.M. was taken into care by the respondent society and made a ward for four months on consent. S.M. has been in the care of the respondent society since that time. Throughout this wardship, the respondent society continued to work with C.M. and facilitated regular visits with S.M. Nonetheless, the bonding, the development of an interactive relationship and the attachment between S.M. and her mother remained minimal. On August 17, 1989, the child was made a ward of the respondent society for another period of four months. On December 14, 1989, the respondent society brought a status review application seeking an order of Crown wardship, without access for the purposes of adoption. The appellant having opposed the motion, the matter went to trial before the Ontario Court Provincial Division, on January 7, 1991 and continued sporadically throughout 1991, for a total of nine days, with the last day of evidence being heard December 2, 1991. On February 17, 1992, Bean Prov. Ct. J. made an order, pursuant to s. 57(9) of the Child and Family Services Act, that the child be returned to the appellant on the basis that court intervention was no longer necessary to protect S.M. in the future. He was of the view that C.M. was capable of acquiring the skill to care for her daughter adequately. The respondent society obtained a stay of the order and appealed to the General Division. The hearing on appeal lasted 9 days from May 19, 1992. On December 14, 1992, Macdonald J. delivered written reasons dismissing the appeal, which the respondent society appealed. A stay of the order for return pending appeal was obtained. After granting a motion for the introduction of fresh evidence, the Court of Appeal allowed the appeal and set aside the order for the return of the child to the mother. On May 4, 1993, the Court of Appeal ordered that the child be made a Crown ward, without access for the purposes of adoption. It is this judgment which the appellant mother, C.M., presently appeals before our Court.
Relevant Statutory Provisions
The Ontario Child and Family Services Act governs matters of child protection in Ontario. It provides for a status review of protection orders, the focus of this appeal. A proper starting point, therefore, is to reproduce those provisions of the Act which are most relevant to such a review:
1. The purposes of this Act are,
(a)as a paramount objective, to promote the best interests, protection and well-being of children;
(b)to recognize that while parents often need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent;
(c)to recognize that the least restrictive or disruptive course of action that is available and is appropriate in a particular case to help a child or family should be followed;
(d)to recognize that children's services should be provided in a manner that,
(i) respects children's needs for continuity of care and for stable family relationships, . . .
37. . . .
(2) A child is in need of protection, where,
. . .
(f)the child has suffered emotional harm, demonstrated by severe,
(i)anxiety,
(ii)depression,
(iii) withdrawal, or
(iv) self-destructive or aggressive behaviour,
and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
(g)there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm;
. . .
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
1.The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2.The child's physical, mental and emotional level of development.
. . .
5.The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
6.The child's relationships by blood or through an adoption order.
7.The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
. . .
9.The child's views and wishes, if they can be reasonably ascertained.
10.The effects on the child of delay in the disposition of the case.
11.The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
12.The degree of risk, if any, that justified the finding that the child is in need of protection.
13.Any other relevant circumstance.
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. . . . [Supervision order]
2. . . . [Society wardship]
3. . . . [Crown wardship]
4. . . . [Consecutive orders of society wardship and supervision]
. . .
(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 the 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.
. . .
(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.
58.--(1) The court may, in the child's best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
59.-- . . .
(2) Where a child is made a Crown ward under paragraph 3 of subsection 57 (1), the court shall not make an order for access by the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that,
(a)permanent placement in a family setting has not been planned or is not possible, and the person's access will not impair the child's future opportunities for such placement;
(b)the child is at least twelve years of age and wishes to maintain contact with the person;
(c)the child has been or will be placed with a person who does not wish to adopt the child; or
(d)some other special circumstance justifies making an order for access.
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.
. . .
(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 had been applied for but is not appropriate, a future date for termination of the order can be estimated; . . .
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.
. . .
(3) Where the twenty-four month period referred to in subsection (1) expires and,
(a)an appeal of an order made under subsection 57 (1) has been commenced and is not yet finally disposed of; or
(b)the court has adjourned a hearing under section 65 (status review),
the period shall be deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 65, as the case may be.
Judgments
Ontario Court Provincial Division (Bean Prov. Ct. J., February 17, 1992)
Rendering judgment on a motion brought by the respondent society on December 14, 1989, seeking an order for Crown wardship of S.M., Bean Prov. Ct. J. examined his role in such a status review application. He concluded that he had to satisfy himself that intervention through a court order was still necessary to protect the child in the future and if so, to proceed to make a further order under s. 57. According to him, the concept of protection must be viewed separately from that of the best interests and well-being of the child. In this light, he evaluated the circumstances of the parties. Although he was aware of the attachment between S.M. and her foster parents, he focused on the appellant's psychiatric history as regards the possibility of future harm to S.M. and concluded:
Even if there is some slight risk of a psychotic episode in the future, I am not satisfied that intervention through a court order is necessary to protect the child. The mother's plan is to return with her child to live with her family in Portugal. Surely the child will be adequately protected by the relatives with whom she will live and by the help that they and the Social Services in Portugal can provide. Drs. De Lucas and Allodi were of that opinion, which I accept.
I am satisfied that there is no physical harm or danger which necessitates intervention through a court order but is there any other harm or danger? I am not concerned with the "best interests" or "well-being" of the child, nor am I concerned with injury or danger against which the child can be protected without the necessity of a court order. [Emphasis added.]
As a consequence, Bean Prov. Ct. J. held that he was required to make an order under s. 53(9), now s. 57(9), for the return of the child to C.M. In Appendixes A, B, and C to his reasons, Bean Prov. Ct. J. expanded on the conclusions he had reached. In Appendix A, Bean Prov. Ct. J. examined the effect of s. 61(3), now s. 65(3), of the Act on status review proceedings. In his view, the seven factors set out in s. 61(3), now s. 65(3), govern such determination:
. . . in my opinion, when determining "best interests" for the purpose of section 61(1) (now section 65(1)), the court must consider whether those "grounds" still exist. What are those "grounds"? In my opinion, the grounds upon which an original order is made under section 53 (now section 57) are, first, the condition or situation on the basis of which the child was found to be in need of protection, second, the relevant facts found by the court which satisfied the court that intervention through a court order was necessary to protect the child in the future and, third, the relevant facts upon which the court determined that the original order was in the child's best interests.
. . .
It seems to me then, that viewed broadly subsection 61(3) (now subsection 65(3)) is an attempt by the legislature to cause the court to regard the order proposed on the status review proceedings in the light of all of the purposes of the Act, which do not only include acting in the child's best interests. [Italics in original; emphasis by underlining added.]
In Appendix B, Bean Prov. Ct. J. determined that, although the initial finding as to whether a child was in need of protection pursuant to s. 57(1) did not need to be reconsidered at the stage of status review hearing, the court must, however, examine whether an order is necessary to protect the child in the future before any consideration of the best interests of the child could be undertaken. Finally, in Appendix C, Bean Prov. Ct. J. resolved that where a prior order had been made on consent and the parties had agreed to a statement of facts pursuant to s. 70 of the Rules of the Provincial Court (Family Division), R.R.O. 1980, Reg. 810, the parties were contractually bound by those facts in future proceedings. Thus, additional evidence could not be tendered by the parties at the status review hearing. In the result, Bean Prov. Ct. J. dismissed the respondent society's status review application.
Ontario Court (General Division) (Macdonald J., December 14, 1992)
Macdonald J. set out the following six questions she had to answer on an appeal from a status review application:
#1) Should the Appellate Court Overturn the Trial Judge's Findings of Fact in these Circumstances?
#2) What are the Appropriate Criteria to be Applied on a Status Review Application pursuant to section 64 of the Child and Family Services Act? Is it Necessary to Make a Finding as to the Child's Best Interests? If so, What are the Best Interests of the Child in the Circumstances of this Case?
#3) Is the Secondary Finding in s. 57(1) of the CFSA Applicable to Status Review Proceedings?
#4) Does the Principle of Res Judicata or the Issue of Estoppel Apply to Agreed Statements of Fact Tendered in Previous Proceedings Involving the Same Parties?
#5) The Application and Impact of Section 70 of the CFSA to Proceedings Under the Act.
#6) The Role of Counsel In Child Protection Proceedings.
With regard to the first issue, Macdonald J. held that she had "no difficulty concluding that an Appellate Court has jurisdiction to overturn the findings of fact of a Trial Judge and make a substituted order". According to the test set out in Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, however, such intervention and exercise of discretion is only possible where the trial judge has made a "palpable and overriding error". After reviewing the trial judge's findings of fact, she concluded:
Applying the test enunciated by the Supreme Court of Canada, there is nothing in the evidence before me which would indicate that Judge Bean made a "palpable or overriding error" which affected his assessment of the facts. Accordingly, I am not prepared to overturn the findings of fact of His Honour Judge Bean in these circumstances.
However, Macdonald J. found in the court's broad parens patriae jurisdiction authority to review the evidence to safeguard the interests of children. As a consequence, she determined that, based on the evidence, the appellant was "fit to parent her child regardless of whether or not she returns to Portugal".
With regard to the second issue, Macdonald J. discussed the appropriate criteria to be applied on a status review application pursuant to s. 65 of the Act. In so doing, she examined the various provisions of the CFSA which relate to this inquiry. It was her view that s. 65 incorporates the various dispositions under s. 57(1) and that, in making an order under s. 65(1), the court must consider s. 65(3). She, then, looked at s. 37(3) and commented that, pursuant to s. 37(3)(13), the considerations with regard to the best interests of children were "not exhaustive". With regard to the reasons of Bean Prov. Ct. J., she held that the trial judge's view that the best interests of the child were irrelevant on a status review hearing was "totally irreconcilable" with the purpose of the Act and that the trial judge had erred in not reflecting upon S.M.'s best interests. In light of the trial judge's error, Macdonald J. felt that, in a child protection appeal, a substituted order should be made rather than ordering a new trial and, as a consequence, she dealt with the best interests of the child. She weighed the effect of the psychological bonding between S.M. and her foster parents as well as the fact that she had a minimal bond with her mother. She noted that S.M. had always been made "aware of the fact that someday she may be going to live with her real mother":
In my view, the understandable "bonding" which has occurred between [S.M.] and her foster family would not be an insurmountable obstacle to the child's reintegration with her natural mother. I am satisfied that no irreparable harm would result if the foster placement is disturbed at this point. In addition, it is improper that the lethargy of our Court system give rise to a status quo argument and prejudice the rights of the natural mother, unless disturbing the status quo would result in irreparable harm to the child.
Accordingly, Macdonald J. concluded that the long-term best interests of the child would be best served by returning S.M. to her mother.
With regard to the finding of the need of protection, Macdonald J. held that a court, on a status review application, pursuant to s. 65(3), had to determine whether an order was necessary to protect the child in the future, regardless of the fact that the initial finding as to whether the child was originally in need of protection must be considered res judicata.
As to the fourth issue, Macdonald J. concluded that Bean Prov. Ct. J. had erred in finding that the parties could not adduce new evidence on a status review, when the courts below had proceeded on the basis of an agreed statement of facts, since, on the clear wording of the agreement, the parties had reserved their right to call further evidence. In her opinion, receipt of current and up to date factual information was in line with the task of the court to consider the best interests of the child and, as such, new evidence should be admitted.
With regard to the application and impact of s. 70 or what may be described as the 24-month rule, Macdonald J. observed that such time limits were consistent with the philosophy of the Act:
In this case, the intention of the CFSA and in particular section 70 have clearly been violated. Had section 70 been adhered to, the psychological bonding that has occurred between [S.M.] and her foster home would not have occurred to the extent that it has.
Finally, Macdonald J. addressed the role of counsel for the child in child protection proceedings. This issue does not arise in the present appeal.
At the end of the day, although Macdonald J. concluded that the trial judge had erred by failing to appreciate the best interests of the child adequately, she did not overrule his findings of fact. Based on these findings, in light of the best interests of the child and the fact that the child was, in her view, not in need of a court order for further protection, Macdonald J. upheld the conclusion of Bean Prov. Ct. J. and ordered that S.M. be returned to the care of her mother.
Ontario Court of Appeal (Krever, Catzman, Weiler JJ.A., May 4, 1993)
In reaching a unanimous conclusion to allow the appeal, the Court of Appeal allowed the motion for fresh evidence made on behalf of the child and the respondent as well as the appellant. This new evidence consisted of affidavits of social workers, an up-to-date assessment of S.M. by the respondent society's psychologist, as well as that of Dr. Wilkes, a psychiatrist retained by the official guardian, an assessment of C.M. and her new spouse by Dr. Allodi and transcripts of the cross-examination of all of the affiants except Dr. Allodi. On the merits of the case, according to the Court of Appeal, the essential issue was whether, on a status review hearing under s. 65 of the Act, the best interests of the child must be the prime consideration:
We agree that a children's aid society, as the representative of the state, must continue to justify its intervention by showing that a court order is necessary to protect the child in the future. We do not agree, however, that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of the natural parent, that the child must be returned to the care of the natural parent. A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the care givers, whom the child regards as her psychological parents is severed. Such a factor is a well recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on a status review hearing.
In her reasons for judgment, Macdonald J. correctly held that the trial judge was in error in holding that the best interests of the child were irrelevant in a status review hearing. She considered the best interests of the child, [S.M.], in the context of "whether or not the child is in need of protection from his or her natural home". She also failed to consider adequately whether a court order was necessary to protect [S.M.] from the emotional harm she would suffer if she were removed from the care of her foster parents with whom she has lived most of her life, and whom she regards as her psychological parents.
Thus, the Court of Appeal for Ontario allowed the appeal and ordered that S.M. be made a ward of the respondent society, for the purposes of adoption, without access by the appellant.
Issues
The main issue in this appeal is the interpretation of the Ontario Child and Family Services Act, particularly with respect to status review applications. An incidental question concerns the introduction of fresh evidence on appeal, which I will deal with first.
Fresh Evidence on Appeal
That this Court has discretion to admit fresh evidence on appeal is not contested. Section 62(3) of the Supreme Court Act, R.S.C., 1985, c. S-26 , as