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CHILD PROTECTION - Considerations - Permanent appointment or Crown wardship

Thursday, December 12, 2019 @ 6:31 AM  

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Appeal by the mother from a ruling affirming a summary judgment for extended society care. The appellant was the mother of three children between the ages of three and nine. The oldest child was autistic. Various Children's Aid Societies were involved with the children for most of their lives. In 2011, the oldest child was found in need of protection due to a risk of physical harm and sexual abuse. In addition, the mother had limited intellectual abilities and was unintentionally neglectful. Further temporary orders resulted due to concerns with the mother's parenting abilities. In 2016, the children were apprehended, and the mother exercised supervised access. In 2017, the Society moved for summary judgment for Crown wardship without access. The mother sought return of the children to her and her new partner under supervision. In 2018, the motion judge granted summary judgment in favour of the Society, noting the expiration of the statutory timelines for remaining in Society care. The judge cited the ongoing protection needs and recurring themes of an absence of caregiving skills and patterns of neglect. An appeal by the mother was dismissed in March 2019. The appellate judge applied the CFSA, despite the newly enacted CYFSA. The judge found that the test for summary judgment was correctly stated and applied. The mother appealed. A consent order permitted her to continue weekly supervised access pending appeal.

HELD: Appeal allowed in part. The appellate judge applied the wrong legal framework by relying on the CFSA and the Divisional Court's Kawartha decision rather than the CYFSA and the Court of Appeal's Kawartha decision. Nonetheless, application of the correct legal framework to the motion judge's undisputed findings regarding child protection supported a conclusion placing the children in extended society care. In addition, the appellate judge erred in law by resolving the issue of ongoing access on the children's adoption prospects through common sense and informed experience, having concluded that the test for judicial notice was not met. It was unnecessary to resolve the issue given the Society's concession that some form of access between the mother and children was in the children's best interests. The record was insufficient to address the extent of such access. The issue of access was thus remanded to the OCJ to be determined on an expedited basis.

L.M. v. Children's Aid Society of the Region of Peel, [2019] O.J. No. 5440, Ontario Court of Appeal, A. Hoy A.C.J.O., M.H. Tulloch and M. Jamal JJ.A., October 25, 2019. Digest No. TLD-December92019012