COMMON ISSUES IN CAS/FACS MATTERS

 

 

COMMON ISSUES IN CAS/FACS MATTERS

 

Generally, opioid deaths are up from 70% to 78% for men during the Covid-19 pandemic (Public Health Ontario). Resuscitation attempts are also down during the Covid-19 pandemic. This can be attributed to a lower access rate. Homes with substance abuse issues might not be seen as even more volatile. This would make access even more difficult for these people. This along with decreased access to safe spaces and social networks will also make seeking and accessing help more difficult for those in need. All of this has a strong possibility of affecting Child Protection cases.

https://www.publichealthontario.ca/-/media/event-presentations/2020/covid-19-substance-use- data-nov-10.pdf?la=en

1.  Calabrese v Slade, 2021 ONSC 1176.

Facts:
This was about a Motion by a father to have his children returned to live with him. Both parents initially lived in Perth, ON, but at the outset of the pandemic, the mother moved to Sault Ste. Marie., ON. The children currently live with her. The mother has also filed a Motion of her own, seeking child support. The children are now enrolled in a school in Sault Ste. Marie that the father was supposedly okay with. In light of the case, the father’s concerns include that the mother has drug/substance abuse issues. The mother, while denying all aspects of the father’s allegations, did not offer any information on those allegations. There is concern that the children could be exposed to drugs. Furthermore, the Motions are mired with conflicting allegations and the Covid-19 pandemic has largely slowed the whole litigation process down. That being said, the allegations against the mother are being taken seriously and are not the least bit questionable. These issues will be heard at a later date.

 

 

 

2.) Children’s Aid Society of the County of Dufferin v EF, 2020 ONCJ 434.

Facts:
The Society had applied for temporary care placement for the child. The Society alleged the mother had strong substance abuse issues in terms of alcohol. Both the mother and Society note the mother as being a good mother, when sober. The mother, through presented evidence, was able to provide a plan of care that mitigated much of the risk, as well as remain compliant with Society supervision for extra accountability. Thus, it was determined to be in the best interests of the child to remain with the mother, even temporarily.

 

3.) SJ v MC, 2020 ONSC 6201.

Facts:
The mother of two children, ages 10 and 13, made an application for week-about access. The children had been living with their father up to this point in time. This was largely due to the substance abuse issues that the mother suffered from. While it was found that the mother was making strong efforts to better her situation and herself, she was “not there yet”. As such, it was seen that there would still be a negative influence on the children from their mother. However, it would still be in the best interests of the children to have some contact with their mother, and thus a weekend visitation regime should be put in place.

 4.) Children’s Aid Society of Niagara Region v MP, 2020 ONSC 4771.

 Facts:
This was about a Motion for summary judgment regarding a child being placed in extended care with the Society. Previously, the mother of the child in question had had two children removed from her custody. No one knew where the mother was living. That, coupled with infrequent access visits, as well as admitted drug use, put the mother in a poor view. It was deemed that the child needed protection and be put in the extended care of the Society.

 

 

4.) Cavanagh v Wagner, 2020 ONSC 7444.

Facts:
The Applicant, the father, is seeking to have unsupervised visits with his child on the weekends. The mother is opposed to this motion, and is instead filing that he pays backdated child support payments. The father has a history of drug abuse and would blame the mother for why he did not have access. The father was not found to have made any consequential or material changes that would have seen positive alteration to his drug abuse habits. Thus, his application was dismissed as it was deemed to be in the best interests of the child. The mother’s application for further child support was also granted.

 

5.) Children’s Aid Society of the Niagara Region v M.J., 2004 CanLII 2667 (ON SC)

Facts:
In the case of Children’s Aid Society of the Niagara Region v M.J., the facts are as follows: the Respondent is the mother of six children, all under the care of the Society. Since 1993 when the Society first made contact with the mother, six months after the birth of the first child, she has demonstrated neglect to the children, halted their development, exercised poor hygiene, a poor home environment and the fathers of the children are of similar character. A test to see if the children need access to the mother and if the older three should have access to the younger three are the main focus. Psychological assessments were done on five (youngest was too young) of the children by a Dr. Amin and Dr. Vallance, and it was determined that access to each other or to the mother was of no benefit to the children.

Conclusion:
Justice Quinn orders that the three youngest children are to be made Crown wards with no right to access by the mother or the three oldest children. The reasons for this Order rely heavily on psychological assessment and are as follows: through psychological assessment by Dr. Vallance, the children are doing fine without access to their biological mother and granting access to the youngest three would interfere with their attachment to their potential adoptive parents. The eldest three require psychiatric treatment before even considering access by the mother or the younger three, and denying access would prove to be in the best interest of all. Dr. Amin’s recommendation that the older children have a flawed relationship with the younger ones, was accepted, and the CYFSA test to determine what is in the best interest of all children stand with the order of no access.

 

6.) Children’s Aid Society of the Regional Municipality of Waterloo v J.D., 2018 ONCJ 963 (CanLII)

Facts:
In the case of Children’s Aid Society of the Regional Municipality of Waterloo v J.D., the facts are as follows: The Society has brought a Status Review Application (SRA) seeking an Order for the extended care of two children who were born to the Respondent J.D. The children were removed from the mother’s care on Nov. 8, 2015. They were found to be in need of protection by Order of Justice Neill on Oct. 6, 2016. The SRA started on Dec. 16, 2016 until May 4, 2017 and sought to allow a further three month interim care Order with no access by the parties. 

The respective biological fathers of the children were both held in default. 

One father had shown to easily get frustrated and would cause bodily harm to his child when they would cry, resulting in his removal from the family. 

J.D. does not have a stable residence for the children. She lived on and off with her mother, S.R., and the history between them calls for counseling. She has, however, been receptive to the relationship between the foster parents and the children, as well as bringing S.R. to access visits.

Legal Analysis:
Justice Oldham ordered that the two children be placed in the extended care of the Society until the extended care Order is terminated under s. 114 or expires under s. 123. The children will have a right of access to J.D. at the discretion of the Society and the children would be the access holders. The reasoning behind this order are as follows: J.D. had regularly attended access visits four times a week. There was a period of time where those visits decreased, resulting in the Society allowing one visit per week in order to benefit the children, but if the consistency of visits were to increase, the number of visits allowed would increase. J.D. in those times, showed a bond with the children. When S.R. was present, it was noted by Ms.Innanen, a social worker who supervised access visits, that J.D. learned a lot and easily controlled the children’s activities. It was noticed that when S.R. did not attend visits, the control over the children in larger settings was a struggle for J.D. but she was open to criticism and suggestion. As well, her ability to watch both children over time has and would continue to grow. It was agreed upon that the relationship between the children and their mother through access visits would not impair on the adoptability of the children. For the reasons of being able to bring joy to the children’s lives on a consistent basis, get along with the foster parents, and not jeopardize the children being adopted in the future, the Order making the children the access holders is issued.

 

7.) Children’s Aid Society of Toronto v J.G., 2020 ONCA 415 (CanLII)

Facts:
In the case of Children’s Aid Society of Toronto v J.G., the facts are as follows: the premature born child A.G., is two years old and is the fifth child of the appellant, who does not dispute that A.G. should be in the care of the Society, but seeks continued access. She currently visits once a week and is fully supervised. At the Ontario Court, it was decided that allowing the mother to have continued access allows for things like easy access to the child’s medical information and family history would be more readily available while the Superior Court argues that under the CYFSA, the relationship needs to be beneficial and meaningful right now, and not solely in the future.

Conclusion:
Justice M.L Benotto ordered that the appeal be allowed as the Trial Judge applied the correct approach, restoring their determination as to access. The reasoning for the Order is as follows: the CYFSA is a remedial legislation enacted to protect the most vulnerable children. The new access test is now a best interests test that is required to consider whether the relationship between the individual and the child is beneficial and meaningful for the child in the past, present or future. The child’s best interests are not static as confirmed in s. 74(3) where it is made clear that the CYFA never suggests that access should be decided without referencing the future. The benefit of having access to the child’s medical information and family history through the mother is an added benefit to the child as the child had significant medical issues as a result of premature birth. Continued access to this is a continued benefit to the child in question.

 

8.) Children’s Aid Society of Toronto v R.S., 2020 ONSC 4993 (CanLII)

Facts:

In the case of the Children’s Aid Society of Toronto v. R.S., this case was on appeal from the December 2, 2019 decision by Justice Sherr. The child, R.S., was put in the temporary care of the CAST, per Justice Paulseth’s order on Feb. 15, 2019, from birth, as the mother had medical issues at birth. Her other two children were removed from her care on July 28, 2017. by the CAST and have been living with their paternal grandparents ever since. R.S. has supervised access to the child R.S. twice a week at the CAST office and a motion to increase access to all three children was denied on Oct. 16, 2019.

Conclusion:
Justice Kiteley J ordered that the motion for leave to admit fresh evidence as well as the entire appeal be dismissed, both without costs for the following reasons; the issues between the CAST and R.S., were that of her causing conflict with the workers while in the presence of the children. The CAST however, was denied admission of fresh evidence when wanting to admit affidavits from Family Service and Family Support/Access Workers regarding R.S.

 

9.) Children’s Aid Society of Toronto v Y.M., 2019 ONCJ 489 (CanLII)

Facts:
In the case of Children’s Aid Society of Toronto v Y.M., the facts are as follows: the case revolves around two children, 10 year old N.B. and 18 month old M.M. N.B. was found to be a child in need of protection per the CYFSA on Oct. 2, 2018. by Justice Spence. The Society seeks that N.B. be in the custody of the kin givers (S.B. and J.A.), including the ability to travel with her outside of Canada without anyone’s consent. The mother and father have access to N.B. twice a month for two hour visits at a supervised access centre. 

The Society also seeks a finding that M.M. is in need of protection and should be in the extended care of the Society and have access twice a year with her parents, with the child being the access holder. 

The siblings are to have access to each other for a minimum of four times a year. Drugs were found to be in the mother’s system after birth with N.B. being in withdrawal from Lorazepam and Oxycodone. She deposed that the drugs were prescribed to her for depression and anxiety, but might have taken a Percocet instead of Tylenol as they were in the same bottle, prior to giving birth. The apprehension after birth was done without a warrant.

Conclusion:

Justice Sherr orders that M.M. is in need of protection and shall be in the extended care of the Society. M.M. is to have access to the mother and their father for four supervised visits each year for a minimum of one hour, with access to photos for a minimum of four times a year and report cards. N.B. is to be placed in the care and custody of the kin caregivers, allowing them to travel outside of Canada without consent from anyone. Visits are at the discretion of the Society and caregivers respectfully. No drugs shall be consumed within 24 hours before any access visit. Sibling access is at the discretion of the kin caregivers. 

The reasoning for this order is as follows: due to the drug use, prescription or otherwise, the child was affected and needed to be in the hospital's care. There was a dispute as to whether a warrant to bring M.M. into the care of the hospital after birth was allowed, and the Justice found that it was, as the child needed to be in the hands of people who could assist and help. The actions were done in good faith and were necessary. It is in the best interests of M.M. to have some connection with their mother and father, but M.M. also needs to move on with their life and the possibility to be adopted should not be interfered with, which is why little access is allowed.

 

10.) Children’s Aid Society of Toronto v. J.G.

Purpose:
In the case of the Children’s Aid Society of Toronto v. JG, the facts are as follows. The Children’s Aid Society of Toronto brought forward a Motion for a summary judgment within it’s Amended Protection Application. The Motion is sought to find subject child AG to be a child in need of protection pursuant to subclauses 74 (2) (b) (i) and (ii) of the Child, Youth and Family Services Act. The Motion also seeks a disposition to place the child in extended Society care with no access to the Respondents. Lastly, Society seeks a sibling access Order.

Facts:
The Father in this matter is TH, and he failed to participate in this case. As a result, he was found in default. The mother in this matter, JG, asked that the Society’s summary judgment motion be dismissed. The Society denied. As a result, the Society filed eight affidavits from its worker to support this Motion. And the mother, JG, filed her own affidavit in response. The summary judgment Motion began on March 28, 2019. The Court found that it could not be justly determined. Because of this, the Court ordered that a mini trial be conducted. This was pursuant to sub rule 16 (6.2) of the Family Law Rules. The court indicated that it wanted supplementary evidence from a Society worker. The Court also indicated that they want to hear from oral evidence from the mother about her views on the protection concerns. This includes the child’s special needs and more detail about her care plan. After discussion with the council, a format was set up for the mini trial. The mother would be given the opportunity to cross examine the main Society worker and one worker of her choice who had access, during the trial. On her own behalf, she would be able to provide further evidence as well as call on her sister. The Society, in return, would have the opportunity to cross examine the mother and her sister. On April 15, 2019, the required statutory findings were made about the child. The child was found to be in protection under subclauses 74 (2) (b) (i) and (ii) of the Act. A dispositional order was made by placing the child in the extended care of the Society. This decision, however, still left the mother’s access with the child undetermined.

The Society maintained its position that the mother shall have no access to the child. The mother looks to have temporary access with the child. She also looks to have supervised access with the Society to see her child once a week at the office. The Judge must base the decision off the following facts. The mother is 39 years old and an immigrant to Canada. The mother has a long history with the Society. Her first involvement began in 2013. The mother has four children. These children were removed from her care in April of 2016 after she was charged with assault on three of them. The Society was also concerned with the children’s exposure to domestic violence, adult conflict and the mother’s alcohol misuse. 

In January of 2017, Justice Roselyn Zisman found all children to be in need of protection pursuant to 37 (2) (b) of the Family Services Act. In February of that same year, the mother pleaded guilty to one count of assault and received a 24-month probation Order. Two of the children were eventually placed in the legal custody of their biological father. Another child was placed with her biological father under a supervision Order. 

TH is the father of the mother's fourth child, S. A trial was held regarding S and Justice Paulseth made S a crown ward with no access to her parents. 

In October of 2017, the society learned that the mother was pregnant with twins, had been drinking during the pregnancy and was still in a relationship with the father. The child and his twin were born in 2018 at 26 weeks of gestation and weighed approximately 1.5 pounds at birth. They had significant medical needs. While in the hospital, they were treated for jaundice and pain management, were fully ventilated and required multiple blood transfusions. The children were then placed in the temporary care of the Society. Unfortunately, two months after they were placed in care, child A died due to medical complications. The mother in this matter only visited the children twice while they were in the hospital and has not seen her children since.  The remaining child does continue to receive ongoing medical assessments at the Hospital for Sick Children. The remaining child is also on a waiting list to receive services from Child Development. The mother has also never attended the remaining child’s medical appointments, even though she has been invited to attend. Later in July of 2018, the Society amended its protection application to seek the disposition of extended care within the Society with no parental access.

Conclusion:
Based on the presented facts and the Society’s affidavits on the matter, the following decision was made. Justice SB Sherr made a final Order with the following terms. The mother’s access with the child will be at the discretion of the Society, in consultation with the remaining child’s caregivers. The visits shall be fully supervised; this includes the visits taking place a minimum of six times a year for a minimum of one hour. The Society shall ensure that the mother is provided with an updated photo of the child at least four times a year. Lastly, the child and mother shall both be access holders and recipients. The father in this matter will have no access to the child.

Sources:

CanLii. Children’s Aid Society of Toronto v. J.G.

 

11.) Children’s Aid Society of Toronto v. Y.M., 2019

 

Facts:
In the case of Children’s Aid Society of Toronto v. YM, 2019, the facts are as follows. 

This Child Protection Trial concerned two children, NB, a 10-year-old girl, and MM, an 18- month-old-girl. The Respondent, YM, is the mother of both children. The Respondent’s significant other is MM’s father and NB’s step-father. The Respondent, YB, is NB’s father. He failed to participate in the case and was found in default. 

MM has been with the Children’s Aid Society of Toronto since December 14, 2017, days after birth. The mother and birth father have exercised their supervised access with the Society. 

NB lived with the mother until August 2, 2017. The child then lived with YB until October 30, 2017. Since October 30, 2017, she has resided with SB and JA, the kin caregivers. 

The mother and MM’s father exercised their supervised access with NB at the Society’s office. YB also exercised his access to NB until he left for the Philippines in January of 2019. NB was found to be a child in need of protection, outlined in section 74 (2) (h) of the Child, Youth and Family Services Act, 2017 (the Act) on October 2, 2018 by Justice Robert Spence.

Purpose:
The Society seeks an Order for NB to be placed with the kin caregivers, as outlined in section 102 of the act. The Society is also looking to obtain documentation for NB and the ability for the kin caregivers to travel outside of Canada with her. The mother and MM’s father will have access to NB twice a month for two hours each at a supervised centre. 

YB’s access is to be with the discretion of the caregivers. 

The Society is also seeking protection for MM, as outlined in subclause 74 (2) (b) (i) of the act. It seeks the Order that MM be placed in extended Society care. This includes supervised access twice a year with the parents. 

The Society also seeks a minimum of sibling access 4 times a year. 

The mother and MM’s father want an Order for NB to be placed in their joint care with the terms of the Society. Alternatively, they are looking to have NB be placed in MM’s father's care, subject to the terms of the Society and with generous access to the mother. They wish for MM’s Society protection to be dismissed on the basis that she is not a child in need of protection. 

The mother is also seeking an order of costs against the Society. The Lawyer, on behalf of NB, supports the Orders by the Society and asks that a minimum of 12 visits for sibling access take place. 

The mother and MM’s father seek unsupervised access to the children if they are not returned to their care.

Facts:
In this trial, 18 witnesses were called to the stand. These included Society employees who worked directly with the family. The direct evidence was provided by affidavit and all the Society employees were cross-examined by opposing Counsel. The Court also heard oral evidence from community witnesses including a hospital social worker, a social assistance worker and a paramedic. The Court also heard from SB; NB’s parental aunt and MM’s foster mother. Both parents testified on the matter. 

The mother provided part evidence by affidavit and presented the remaining evidence orally over 3 days. MM’s father provided most evidence by affidavit and some supporting evidence orally. 

The Society and the mother both filed business record briefs that included school report cards and attendance records regarding NB. This also included hospital, medical and prescription drug records regarding NB and the mother. Many of NB’s statements were also admitted into evidence for her state of mind and for the truth of its contents. 

The mother testified that her relationship with YB consisted of abuse. YB was supposedly addicted to painkillers and alcohol. He would physically and emotionally abuse her. The mother and YB share the one child. 

When NB was born, it was apparent to medical professionals that she was going through withdrawals. A drug screen was done and returned positive for lorazepam and oxycodone. At this time, York Region Children’s Aid Society was contacted. The mother worked cooperatively with York, and had no other involvement with the agency for 6 years. 

York Region Children’s Aid Society became involved with the mother again when the school made a report regarding NB’s absences. From 2015-2016, NB missed approximately 59 days of school. In the fall of 2016, NB missed 31 days of school and was late 27 times. The police then contacted the Society on December 22, 2016 to report that the school had called, stating that NB had not attended school since December 8. NB’s school attendance problem continued from January to June of 2017. This included NB missing 43 days and being late 16 times. 

The mother was unwell during this time. She was hospitalized on several occasions from 2017-2018. On May 22, 2017, the mother was prescribed a course of hydromorphone, to be taken as needed. In July of 2017, the mother was hospitalized for two days. When discharged, she was prescribed Amoxicillin and Percocet. 

On August 2, 2017, the mother became unconscious on a TTC bus. The lead paramedic, who treated the mother, testified at trial. He was unable to revive the mother and she was unconscious for over 50 minutes. At the hospital, the mother tested positive for morphine. She explained that this medication was prescribed to her. It was at this time that NB was removed from the mother’s care and placed in YB’s care. This placement did not last long. YB was found to be abusing drugs and alcohol. In October of 2017, YB was charged with two counts of assault. The mother contacted the Society that same month to report that YB had been criminally charged. 

On October 30, 2017, NB was placed with the kin caregivers. Supervised access was given to the mother and MM’s father at the Society twice a week. In terms of MM, drug tests would be conducted upon birth of the child. The results are unavailable and MM was removed from the parents' care until results became available. MM’s parents began having supervised visits twice a week. In January of 2018, the tests came back negative, however, the Society still opted against returning the children to the parents’ care. 

Conclusion:
Based on the presented facts, Justice SB Sherr made the following decisions. The court found that MM is a child in need of protection, pursuant to sub clause 74(2) (b) (i) of the act. Given this MM will be placed in extended care with the Society. The biological parents of MM will have access to her on the following terms: there will be four supervised visits per year, each for a minimum of one hour, photos of the child will be provided to the parents a minimum of 4 times a year, the child’s report cards shall be provided to the parents once a year without any identifying information, and MM will be the access holder while both parents are the recipients. 

Justice SB Sherr also decided that NB will be placed in the care and custody of the kin caregivers, as outlined under section 102 of the act. The kin caregivers may travel with NB outside of Canada without the written consent of the biological parents or Society. The kin caregivers may also obtain or renew any government documentations including medical and educational documents without the written consent of the biological parents or the Society. In terms of NB, NB shall have access with the biological parents under the following terms: access visits are to be supervised by the Society. These visits will occur twice a week for two hours.

Once September hits, the visits will be reduced to once a week for two hours. The mother or MM’s father is required to attend the Society offices at least 45 minutes before the scheduled visit. Failure to do so will result in visit cancelation. The Judge also ordered that the mother and MM’s father shall not consume any drugs within 24 hours of the scheduled visit. The kin caregivers are required to immediately contact the centre to begin the intake process. This also gives the kin caregivers the right to cancel visits on NB’s behalf for specific occasions. 

The kin caregivers also have full discretion to YB’s access to the child. The children will have access to each other for a minimum of eight times a year. 

Any motion regarding NB shall be brought forth to the society. Lastly, the mother’s claim for cost is dismissed and counsel for the Society shall be prepared to take this Order.

Sources:
CanLii. Children’s Aid Society of Toronto v. Y.M.

 

12.) Family & Children’s Services v B.S., 2019 ONSC 6577 (CanLII)

Facts:
In the case of Family & Children’s Services v B.S, the facts are as follows: the Society brought a Motion for placing the child C.S. into extended care with limited care for the mother at the discretion of the Society, and indirect access to the father through an exchange of pictures, letters. The father is to provide information on cultural teachings, rituals, etc., to ensure that the child’s First Nation heritage stays intact. The mother showed inconsistencies with their access and the Society suggests that if there are more consistencies, more than the minimum visits are a possibility, as access will not interfere with the adoption process for the child. She requests continued weekly access with an additional Saturday, while the father proposes direct access at once a month minimum, for no shorter than 2 hours, as a bond has been growing and they both believe this would be in the best interests of the child.

Conclusion:
Justice Tranquilli orders access in the following instances; the parents each have 3 supervised direct access visits minimum per year for a minimum of 2 hours at the discretion of the Society. Access includes emails at a minimum of twice per year. Whether the visits are spent together or individually between the mother and father are up to the Society. The reasons for this order are as follows: the visits with the birth parents are unlikely to interfere with the child’s physical, mental or emotional needs or level of development. The foster parents have cared for the child at around 3 months of age and have reported no issues with development.

When visits do happen, the child responds well to her birth-mother and after settling in, responds well to the birth-father. The foster-to-adopt parents support ongoing access with the birth-mother at a lesser frequency and with the maternal grandmother supervising. As per the CYFSA, benefits of ongoing access also include the child understanding their family history and roots as well as medical history. If access remains consistent, it does not interfere with the adoption process, and acts as positive consistency in the child's life.

 

13.) Family and Children’s Services of Guelph & Wellington County v A.I.S., 2018 ONCJ 410

Facts:
In the case of Family and Children’s Services of Guelph & Wellington County v A.I.S., the facts are as follows: The Society has filed for summary judgment brought within a protection application that was issued on Sept. 8, 2017. 

The subject children are twins, A-L.H. and V.H. and were obtained by the hospital at birth for several weeks due to complications from their premature birth. These complications stem from the drug abuse during pregnancy from the Respondent mother. 

The Respondent mother stated that she regularly used drugs to cope with the stresses of life and did not acknowledge her pregnancy. She tested positive for amphetamine and methamphetamine at the birth of her twins and had already lost three children to the Society due to her history of drug abuse. She was in and out of treatment centres lasting mere days for quite some time, while the father of the children also reported to have a history of drug abuse and never sought advanced help for it. 

The visits the parents had with the children were positive in the sense that they did not need much assistance from any staff in feeding or playing with the children, but the parents were consistently late.

Conclusion:
Justice O’Dea ordered that the summary judgment shall be issued. There is also an Order for no access. The reasons are as follows: the parents have not shown any steps to addressing their addictions. Failing to take these steps proves that the parents’ actions towards the children are not where they need to be, to be considered able to care for the children, due to the risks that they pose for the children’s development, due to drug abuse. 

While the parents respond and interact positively to the children when they do make it to their visits, the cons outweigh the pros. In instances, the father has repeatedly fallen asleep while holding or feeding the child, which resulted in the child choking. Other times, he dropped the child. At other times, both parents focused on just one child, while visiting, and not on both children, respectfully. 

The original date for this motion resulted in no response from the parents, which also shows their attention to such an important matter.

 

14.) Kawartha-Haliburton Children’s Aid Society v. JF and JP, 2019

 

Facts:
In the case of Kawartha-Haliburton Children’s Aid Society v. JF and JP, the facts are as follows. The Respondents in this matter have an extensive child protection history. This history involves their older children who were not subject to this application. The Respondents currently have no access to the older children. The mother and previous partner were charged with failing to provide basic necessities of life to their two older children. In May of 2010, Simcoe CAS opened a protection file for the eldest child in this case, VP. Their involvement was to provide ongoing services to the parents as a result of their consistent drug use, mental health concerns, and parenting capacity. From April of 2013 to January of 2015, the Society received various notices from the community regarding protection concerns. In November of 2014, the school had also reported to the Society regarding NP. NP had suffered an injury while in the parents’ care.

Eventually in January of 2015, the children were removed from the parents' care after VP disclosed apparent signs of physical abuse from the father. In February 2015, a hearing was held and the Court made the decision to return the children to their mother’s care, alone. The mother was ordered to follow the subjected terms outlined by the Court. At this same time, an assessment was ordered to be completed under s.54 of the Child and Family Services Act. R.S.O. 1990, c. C.11. During this assessment, the children engaged in aggressive behaviour between themselves and the parents. The parents’ capacity to manage and control this behaviour was limited. 

By May of 2015, the children were placed back in the Society’s care. At this time, the assessment was completed. The assessor recommended that the children be placed in the extended care of the Society without parental access. 

At the trial in May of 2016, the children were returned to care under a supervision Order. The parents continued to demonstrate cooperation with the various agencies and a year later, a decision was made to terminate the supervision Order. 

In late 2017, reports were made requiring investigations into the children’s physical abuse, domestic violence, lack of medical follow-through and neglect. KHCAS confronted the parents with the possibility of having to commence a new protection application. The parents later abandoned all support and moved to Toronto, ON.

Prior to their move, the children reported to a teacher, with one child mentioning that her father used physical violence. In addition, the children presented allegations of their parents’ ongoing drug use. The CAS obtained photo evidence of the family home, including drug paraphernalia. In April of 2018, the children were removed for a third time.

During this time, the Society made note that the children were showing more signs of traumatization, having been exposed to domestic violence, corporal punishment, instability and neglect. The Society had evidence of physical abuse and substance abuse. 

Purpose:
The main issues in this case are, whether the Court is able to reach a fair determination on the matter without a trial, and will the affidavit evidence provide the necessary facts and legal principles needed to resolve the dispute, and can a finding be made that the children are in need of protection?

Conclusion:
Justice PW Nicholson made the following decisions. It was found that KHCAS has satisfied its obligation to establish that a trial is not necessary in the decision of finding if the children are in need of protection. A trial is not needed to conclude that the children were subject to physical abuse, substance abuse and the parents’ inability to properly care for their children.

There is also evidence that shows neither parent has engaged in intervention to address these problems. The children, as a result, show signs of trauma and would be subject to further emotional trauma if a trial was held. Given these conclusions, it was found that the children are in need of protection pursuant to ss. 74(2)(b)(i), 74(b)(ii) and 74(2)(f) of the Child, Youth and Family Services Act. When determining the disposition, s. 74(3) of the CYFSA was referenced. 

Conclusion:
In summary, the children are First Nations; the children are found to be in need of

 

protection; the children are to be placed in extended care with the Society without access to their parents; the children will have access with each other and with the parental grandfather, LP, and Parental aunt, TJ. Lastly, the Society is to ensure the children have access to therapy and counseling for the trauma incurred while in the custody of their parents.

Sources:
CanLii. Kawartha-Haliburton Children’s Aid Society v. JF and JP

 

15.) Kawartha-Halliburton Children’s Aid Society v M.W

Facts:
In the case of Kawartha-Halliburton Children’s Aid Society v MW, the facts are as follows. This appeal arose from the mother’s request for access to her three children in extended care. This appeal raises important issues about major changes made to the Child Protection legislation. The children in this matter are three of six siblings who were apprehended in 2015. At this time, the children were between one to nine years of age. Their mother consented to a summary judgment Motion seeking Crown Wardship, but sought access. The Judge’s Motion made the children Crown Wards and denied the mother access. The mother appealed this decision to the Divisional Court. 

By this time, the CFSA was about to be replaced with the CYFSA. The new act consisted of significant changes. Change one expanded the test for access to children in extended care and change two emphasized the special considerations applicable to children with indigenous heritage. The Divisional Court held its decision back and released it one week after the CYFSA came into effect. The Divisional Court determined the Judge’s motion erred, but went on to make their own decision by applying the old Act. 

The mother appealed for a second time. The appeal was allowed under the basis that the mother’s request would be determined under the new framework. The following information was also provided. 

The Society became involved with the family in 2007, shortly after the oldest child was born. The Appellant had six more children over the years. There were ongoing Child Protection concerns involving violence in the home, health issues and neglect. The children, except one, were apprehended. The one child is in the custody of her grandparents. The Appellant in this matter did not agree that the children were in need of protection. The children are First Nations and identify with Curve Lake First Nations. The Society then brought forward a motion in 2017 for a summary judgment. The Appellant agreed that there should be a declaration of Crown Wardship; however, she did not agree with the no access provision. 

The Judge’s motion determined that he could resolve the issues by way of summary judgment. He made all six children Crown Wards without ordering that the other should have access to him. After the Judge’s Motion decision was released in 2017, the legislature announced changes to the CYFSA. The mother appealed the judge's Motion decision seeking access to the oldest three children.

Issue(s):
The issues in this case are as follows. The mother submits to the Divisional Court, that in failing to apply the transitional provisions of the CYFSA, applied the wrong test to decide access. She also submitted that the Divisional Court made an error by changing the long-standing test for a summary judgment. The mother’s appeal is supported by the Office of the Children’s Lawyer and Curve Lake First Nations. The aboriginal legal services and Anishinabek Nation stressed the comprehensive definition of First Nations children in the act. These considerations involved the historical context and the ongoing harm suffered as a result. These interests must form part of the best interest’s analysis. 

The Ontario Association of Child Protection Lawyers and National Self-Represented Litigants project submitted the approach. The Respondent Society submits that the Divisional Court was correct in applying the CFSA provisions.

Conclusion:
The justice in this matter considered the Motions and made the following decision. The appeal would be allowed to set aside the Judge’s Motion Order and refer back to the Superior Court on an expedited basis. This will be done to determine the question of access pursuant to the CYFSA. Subject to the case management conference, it is looked to have established a timeline to prepare the case for a hearing either by summary judgment or mini-trial. The Justice did not order any costs.

 

16.) Simcoe Muskoka Child, Youth & Family Services v AM, 2020 ONSC 7017.

 Facts:
This is regarding a motion by the Simcoe Muskoka Child, Youth and Family Services for a temporary care Order. The child had previously been brought in by the Society at birth, and subsequently placed in foster care. The child was initially taken in due to protection and safety concerns regarding the mother. The mother, AM, who suffers from paranoid schizophrenia, was not taking medication for her condition. Essentially, her treatment options, as described and explored by her, were holistic in nature, and included sometimes using CBD oil. Previously the paternal grandparents of the child had been supervising access visits following a paternity test linking their son as the father of the child. 

Purpose:
The Society’s motion aims to have the child placed with the paternal grandparents. 

Conclusion:
There was a substantiated risk of harm to the child, as well as a generally unsafe environment fostered by the mother. Thus, the motion for temporary care to the grandparents was allowed.

17.) Brant Family and Children’s Services (cob Children’s Aid Society of Brant) v AA, 2020 ONCJ 535.

Purpose:
Involving an application by the Society for a temporary care order. 

Facts:
Previously, the child had been in the custody of the mother with access to the father. However, in May 2019, there was a Kinship Services Agreement entered into between the CAS and the mother and maternal grandparents. There were concerns regarding the mother’s substance abuse. Thus, the child, at the behest of the CAS, was placed into the care of the maternal grandparents. This agreement eventually expired in May 2020, despite being renewed twice. 

Due to the mother not meeting desired requirements nor sufficient progress, the child was placed in the care of the grandparents. It was at this time that the mother also conceded that she was not currently in a position to be able to have the child returned to her. The father alleges he was not consulted in regard to the KSA and was unfairly blocked from the entire process. At this time, the grandparents were in charge of the child. 

Conclusion:
It was decided that the child should remain in the care of the grandparents as temporary caregivers, pending a final order. Until such a time, the parents would continue with access, with the mother’s access supervised.

18.) Children’s Aid Society of the Districts of Sudbury and Maintoulin v EL, 2020 ONCJ 677.

Facts:
While this is not a case where custody directly went to the grandparents, it did involve having the grandparents officially listed as party Respondents. Thus, potentially resulting in custody down the line. 

Following apprehension by the Society in July 2018, the child was moved around several times between foster and kin care. The grandparents at this stage decided to put themselves forward as potential caretakers for the child. 

After a KSA was conducted, the grandparents were put in positive standing. This standing brought with it a Motion for temporary care and custody for the paternal grandparents. As such, at the time of trial, the child had been with the grandparents for a total of 17 months. The two parents opposed the motion while the Society had no stance. 

Conclusion:
It was determined that due to the grandparents being the ones to admirably care for the child for the period they had, they would be listed as official Respondents. This was also in light of the parents never having cared for the child, as noted by the court. The motion was allowed.

19.) Children’s Aid Society of the Regional Municipality of Waterloo v JM, 2021 ONSC 1716.

Facts:
This case relates to a temporary care hearing. It is the general position of the parties in this case that the child in question remains in the care of the maternal grandparents. 

Both the CAS and the mother do not contest this, stating that on one hand, the grandparents have had charge of the child since before their intervention and the mother is in no state to receive the child. The Office of the Children’s Lawyer (OCL) also supports that position in this case. The OCL indicates that after meeting with the child, who is seven, that the child enjoys being with the grandparents and very much desires to maintain that established routine. 

It is also noted, because the father is also aiming for custody of the child, that his schedule is not conducive to the life of said child. Working early hours, among other issues, would disturb the established routine. The father also holds that the grandparents could act as a babysitter in the early hours when he needs to work and that the child’s wishes should not be taken into account or be made neutral. 

Following several issues, the CAS applied for their own child protection plan, largely due to the mother’s substance abuse and the fathers lack of a plan. This plan would continue to place the child in the care of the maternal grandparents. While the grandparents also allege that the father does not pay child support and is a drug dealer, there was no additional information provided. 

Conclusion:
It was determined that the child’s needs were being met by the grandparents, as well as the fact that the grandparents are compliant with the CAS. Finally, the child was placed in the care of the grandparents, with access given to the father.

20.) Children’s Aid Society of Toronto v RS, 2020 ONSC 4993.

Purpose:
Regarding an appeal to have a previous order repealed. 

Facts:
The CAS wanted to admit fresh evidence. Initially, the two children, JS and JSP, were placed in the care of their paternal grandparents. While the third child was placed in foster care due to medical conditions. The primary goal of the appeal was to have access that was previously granted to the mother, regarding RS, to be removed so the child could be placed for adoption.

Conclusion:
It was decided that the appeal would be dismissed, and that RS should have access to their siblings and that access with the mother should remain limited. This, along with any access between the siblings, is to be facilitated by the grandparents.

 

21.) RC v Halton Children’s Aid Society (CYFSA s.120)

 

Facts:
In the case of RC v Halton Children’s Aid Society, the facts are as follows. This complaint concerns the events that occurred in late 2016 and early 2017. In November of 2016, the Applicant’s daughter, “S”, who was 13-years-old at the time and in Grade 8, left school during lunch without notifying school staff or signing out. She never returned to school. At this time, the principal told the Applicant that “S” was no longer at the school and that they would be calling the police if she didn’t return home within 5 minutes. The applicant at this time, got in her vehicle and went searching for “S”. During this time, she received a call from the police regarding a missing person and they had found “S” walking home. The police waited for the Applicant to arrive infront of the school. At this time, it became apparent that “S” left school because of a math test. 

The principal then spoke to the Applicant later in the day, advising her that there was a concern regarding “S”. A peer of S’s had advised the school that “S” was hearing voices. This was not new information to the mother as “S” had already spoken to her about it. A meeting with the principal was then set for the next morning. Both the applicant and “S” were present at this meeting. The principal told the applicant in addition to “S” hearing voices, she had heard from S’s peers that “S” had been Googling knives on a school computer. “S” giggled at this comment, stating it was for a school project. 

The principal then spoke about the reason “S” stayed home from school. It was said that “S” stayed home from school because she was afraid she might hurt someone and that “S” was cutting herself. “S” denied these claims and the Applicant said “S” stayed home because of stomach cramps. Following the meeting, the Applicant took “S” to a social worker. The social worker had stated that “S” had some anxiety with high school coming up. The Applicant mentioned the voices to the social worker and the social worker stated that this can be common with anxiety. 

When the Applicant returned “S” to school, the principal asked the Applicant to meet with the school social worker. The applicant agreed to this meeting. The school social worker stated that “S” needed to be tested and have the school social worker attend class with her once a week. The Applicant was unsure of how the school social worker got all this information, given that she had never met “S” before. Once the meeting was completed, the Applicant told the school social worker that “S” was “good with the stuff outside of school” for her mental health. 

That evening, “S” came home and told her parents that the school searched her bag and locker. It was at this time the applicant pulled “S” from school and home schooled her until March break. It also wasn’t apparent to the school if or when “S” may return. In addition to this, a Violence Threat Risk Assessment meeting was called to action on December 1st. These meetings are often called when there is a concern of safety for the child or the surrounding community. The Applicant in this matter received no notice of this meeting. It was also discovered that the Respondent’s case worker attended the meeting, even though this was never mentioned to the Applicant. The case worker during this meeting recalled the discussion of searching S’s belongings at school and that this was a safety measure put in place by the school. On the day before the meeting, the Respondent had called the parents to express their concerns and believed that the parents weren’t taking these concerns seriously. 

Later, on December 5, 2016, the case worker attended the school to interview “S”, however, “S” was not at the school. At this time, the case worker and a colleague made their way over to the parent’s home with no notice. GE, S’s father, answered the door and stated that they would have to speak to his lawyer and that he wanted the supervisor’s number. The case worker stated that she could answer any questions but GE refused to speak to her. GE then spoke to CPS, who explained the joint protocol. The CPS advised that due to the concerns, CAS wanted to ensure that S’s mental health needs were being followed up on. The CPS said that GE appeared relaxed during the conversation and began to share his views with where things were at. GE advised that the parents had taken “S” to the doctor and were being referred to a psychiatrist and that he had spoken to the principal about keeping the lines of communication open. GE also stated that he was not comfortable with CAS involvement and felt that it may overwhelm “S”. 

CPS explained that the case protection worker works primarily with adolescent mental health issues and next steps could be taken when the case worker contacts him. CPS felt that GE would be open to working with the case worker. On December 12, the applicant took “S” to the family doctor. The doctor made a referral to the “Phoenix Program and One link” where an assessment could be completed. On December 14, the case worker and applicant spoke over the phone. The case worker was informed of the doctor's visit and advised the Applicant that, if she provided a doctor’s note, the file could be closed. 

The case worker also made a request to interview the Applicants’ children; however, the Applicant and GE denied. The case worker was consistent through this process but still needed to interview the children without the parents present.

Approximately a week and a half later, the case worker sent a letter to the Applicant outlining the concerns that had come to the attention of the Respondent. The letter advised that “S” was to be taken to the hospital's emergency department by December 30 to be seen by a psychiatrist and have an assessment completed. It was also advised that the Society required a copy of the report, consent for the Society to follow-up with the psychiatrist and that all recommendations made from the psychiatrist were being followed up on. 

In January of 2017, the Respondent received a call from the hospital’s emergency department advising that GE had taken “S” in to be seen and had done so because CAS had directed him to. The hospital reported that GE did not advise the hospital of any concerns, so they were released. The Respondent advised that GE is to take “S” back to the hospital with the letter sent on December 23, 2016 for reference. The hospital reported that GE had not articulated any concerns related to “S” and that “S” did not report anything, so the family left the hospital reporting no concerns. 

Another of the Respondent’s supervisors called GE and told him he should have taken the letter of December 23rd with him to show the doctor in the hospital since the letter clearly outlined the mental health concerns. The Applicant was told to take “S” back to the Emergency Department and to show the doctor the letter. He did so on January 5, 2017. The next day, the report was provided to the Respondent. The ICRP also met with the applicant on the matter. A letter sent by the ICRP to the Applicants also outlined their concerns with “S”.

Issue(s):
Three main issues were outlined in this case. Issue one pertained to the Respondent’s communication with the Applicant’s daughter’s school and with the police on the 1st of December 2016. The applicants had no knowledge or consent. Firstly, s. 15(2) gives the parents the right to be heard when they have concerns regarding services being received, or the decisions affecting their interests. However, s.15(2) does not require the Children’s Aid Society to notify parents or to retain their consent to communicate with members regarding their children’s safety. This argument was brought forward by the Applicant because the Respondent’s decision to attend the VTRA regarding child “S” was a violation of their rights under section 15(2). The case worker testified that she listened and did not say anything at this meeting. She was also invited on behalf of the school. Given this, their rights under s15(2) were not violated. 

Issue 2 In this matter revolves around the Respondent’s communication with the Applicant’s daughter’s school and with the police in December of 2016, without the Applicant’s knowledge or consent. As noted above, s. 15(2) does not impose the Children’s Aid Society the obligation to notify the parents or receive consent. The Applicant believes that this decision affected her interests and she was denied the opportunity to be heard with respect to the decision. She also believes that she should have been provided with the reasons for the decision. No evidence was presented at the hearing that any of the Respondents had communicated with the police about the Applicant’s daughter. The information provided by the Children’s Aid Society does not constitute or involve a decision that affects the child or parents’ interests. This also means that the applicant has no right to be heard or be given the reasons for the decision. 

Lastly, issue 3 pertains to the Respondent’s requirement that the Applicant was required to present a list of concerns to the hospital about her daughter. This requirement, outlined by the Society, was said to involve a decision that affected the interests of the Applicant, and therefore, s. 15(2) was triggered. However, there is evidence that shows the Applicants were provided a meaningful opportunity to respond to the concerns outlined by the case worker. There is no evidence that suggests that the case worker did not allow the Applicant to express her views. The Society in this case must make decisions based on the best interests of the child. It was found that the telephone conversation and the letter outlined the reasons for the requirements set by the case worker. It was also found that the ICRP decision provided reasons for why the Respondent became involved with the Applicant and her family in this particular situation.

Conclusion:
Based on the provided information, adjudicator Brenda Bowlby made the following decision. Given the circumstances, the Respondent did not fail to provide an opportunity for the Applicant to be heard in respect to the decision that affected her interests, or to be given the reasons for the decision. As a result, this application was dismissed.

22.) SD v Children’s Aid Society of the Districts of Sudbury and Manitoulin (CYFSA s.120), 2019 CFSRB 32

 

Facts:
In the case of SD v Children’s Aid Society of the Districts of Sudbury and Manitoulin (CYFSA s.120), the facts are as follows. The Applicant is the mother of RT and ST. RT was born on December 21, 2012. ST was born on April 29, 2015, at 29 weeks and 4 days’ gestation. On August 6, 2016, ST was taken by ambulance to the hospital. As a result, medical professionals concluded that there was subdural and retinal hemorrhaging, healing fractures to the humeri, the ribs, the right tibia and fibula, healing fractures to the right tibia and an acute transversal fracture to the right fibula, no signs of healing to the right side of rib #9. The physicians concluded that ST was a victim of child abuse. 

RT and ST were immediately apprehended by the Children's Aid Society of the Districts of Sudbury and Manitoulin. The police were also contacted. The Child Protection trial occurred over ten days in September and October 2016. The issue before the court pertains to whether or not ST’s injuries were caused as a result of trauma. Was ST at risk of harm if one of her parents had caused the injuries? The court's decision was released on April 5, 2017. 

It was concluded that ST’s injuries were a result of medical causation. It was held that ST was not a child in need of protection. It was held that RT was also not in need of child protection. 

Following the trial, the Applicants sought costs against the Respondent on the following bases: the trial was unnecessary, the Respondent exhibited a skewed and biased perspective throughout the litigation, the Respondent ignored the fact that the police declined to lay charges after a full investigation, the Respondent retained an expert for the sole purpose of attacking the parents’ expert witness, the Respondent insisted on seeking a protection application for RT despite having no evidence that she was at risk of harm, and against the advice of the case management Judge.

The court declined to order the costs against the Respondent. The Applicant then made a complaint to the CFSRB. The main complaint is that the Respondent’s application was biased. These complaints were broken down into further subcategories. The Respondent’s application was an issue before the Court on the basis that the Applicants believed the trial was unnecessary. It was concluded that the file was thoroughly investigated by health professionals and the Respondent could not be at fault for the proceeding of the trial. The court made reference to the principles set out in Children’s Aid Society of Hamilton v KL, 2014 ONSC 3679: costs against child welfare agencies must balance the importance of child protection. This is to ensure that professionals exercise good faith and due diligence in carrying out a statutory mandate. The CFSRB does not have the jurisdiction to hear an application that has already been heard or decided before the Court. The Applicant’s complaints with the exception of kinship care, have already been decided by the Court and the CFSRB does not have jurisdiction to hear them.

Conclusion:
Adjudicator Jennifer Scott decided that the Applicant’s complaint regarding kinship care is within the jurisdiction of the CFSRB and would be heard. The other complaints were to be dismissed as the Court has already heard and decided upon them. The Respondent must respond to the complaint within 10 days of the date of the decision. Once the response is received, the CFSRB will schedule a pre-hearing. A confidentiality Order was placed on this application pursuant to the rules 9.3 and 9.4 of the CFSRB’s rules of procedures.

Sources:
CanLii. SD v Children’s Aid Society of the Districts of Sudbury and Manitoulin

23.) Children's Aid Society of the County of Dufferin v. R.N.

Purpose:

The Society brought an application for Summary Judgment, in which they sought a finding that there was no genuine issue for trial.

Facts:
There is ample evidence that the parties' highly conflicted relationship had an emotional impact upon their children.

The children were at risk of emotional and/or physical harm due to the mother's compromised mental health and coping ability.
 

Issue(s):

 Was there a genuine issue for trial as to whether the children were in need of protection as that term is defined in s. 37 of the C.F.S.A.?

If the children were in need of protection was there a genuine issue for trial as to the appropriate disposition to be made?

Whether the evidence is sufficient to support a trial?

Law/Analysis: 

The onus is on the society to show that there is no genuine issue for Children's Aid Society of Hamilton v. M.N. [2007] O.J. No. 1526 (SCJ) per Gordon J.

The question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. CAS Dufferin v. J.R. [2002] O.J. No.4319.

• Child and Family Services Act, S.O. 1990, c. C.11, s. 30, s. 37(2), s. 47, s. 57

• Family Law Rules, Rule 16(6)

 

 

Conclusion:

Application allowed by P.J. CLAY J.

• I find that there is no genuine issue for trial on the issue of whether the children should be found to be children in need of protection pursuant to s. 37 (2) of the

• The children Ja Na and Jo NA shall be placed in the care and custody of their father Na who shall provide a safe and secure environment appropriate to meet their needs; subject to the terms and conditions in cooperation with the Society by following the reasonable recommendations.

• Ms. No shall cooperate with the Society and shall follow the reasonable recommendations of the child protection Ms. No shall have unsupervised access to the child Jo.

• 16(a) There shall be no access by Na to the child Ja with the exception of therapeutic access that may occur after an assessment of the child and as part of mother-child reunification counseling.

 

24.) Windsor-Essex Children’s Aid Society v. E.W.

 

Facts:
In the case of Windsor-Essex Children’s Aid Society v. EW, the facts are as follows. The Society has been involved with the Appellant since July of 2013, following a referral from Child Protection Services in Nova Scotia. The children originally came into the Society’s care in May of 2016, following the attendance of the Windsor police at the residence, shared by the Appellant and the children. Police were called to the home by a neighbour who heard consistent sounds of a woman being assaulted. Upon arrival, the police noted sounds consistent with: a woman crying, children crying loudly, a male voice and a female voice engaged in a loud argument and heavy objects being smashed. The Appellant was interviewed by police and confirmed that in the course of the argument with TE, he pinned her to the ground and choked her. She, in response, admitted that she stabbed him with a fork. The Appellant was ultimately arrested and charged with two counts of assault with a weapon under the Criminal Code S. 267. TE was also interviewed. He confirmed that EW had stabbed him in the shoulder with a fork. He was ultimately charged with assaulting the Appellant. The evidence and police reports were automatically entered into evidence without objection during the trial. The evidence was placed before Ross J. on the summary judgment Motion in the original protection application, and again without objection, before the trial Judge. The evidence established that the Appellant had repeatedly advised the Society that she had been assaulted by TE on multiple occasions. 

Back in 2015, TE was held in custody pending trial on criminal charges, alleging an assault on the Appellant by pinching her face and punching her in the stomach. However, it was provided that the Appellant assisted in securing the withdrawal of these charges. The social workers disclosed that the Appellant also often minimized the seriousness of the matters and her injuries.

At trial, it consisted of a blend of affidavit and viva voce evidence from witnesses, together with a statement of facts relating to the history of protection proceedings. They spoke of the events that occurred in May of 2016, the details of the Appellant’s disclosure surrounding incidents of domestic violence with TE, the Appellants minimization of the past incidents of domestic violence, the circumstances of the Appellant’s breach of Ross J’s interim Order, the circumstances of the Appellant’s arrest in July of 2016 and the content of the cell phone video that resulted in her arrest. This also included the results of the Appellant’s criminal charges in 2017.

These charges included possession of child pornography and sexual interference. She was sentenced to, among other things, six months imprisonment on the child pornography count and a further 90 days consecutive imprisonment on the sexual interference count. 

Issue(s):
Both the Appellant and the Society later moved to admit further evidence that concerned the circumstances that existed at or before the trial date. The admission of fresh evidence must be in accordance with the criteria, applicable to the admission as articulated in Palmer v. The Queen, 1979. This case outlined the following parameters: the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial, the evidence must be credible in the sense that it is reasonably capable of belief and the evidence must be such that if believed, it could reasonably, when taken with the other evidence adduced at trial, been expected to have affected the result. The following factors must also be considered in determining whether further evidence should be admitted on appeal. These factors include: could the evidence have been previously adduced, is the evidence highly relevant, is the evidence potentially decisive to a best interest’s determination; and is the evidence credible. The new and fresh evidence submitted were affidavits from both the Appellant and the Society.

Conclusion:

The Judge’s decision based on the admission of evidence is as follows. The fresh and further evidence admitted on the appeal does not change any of the underlying factors in the previous trial. Given this, it does not warrant for the substitution of a different disposition as the Appellants’ requested. As a result, the appeal is dismissed.