WARNING

THIS IS AN
    APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT
    TO S. 45 OF THE ACT WHICH PROVIDES:

45. (7)
The court may make an order,

(a)     excluding
    a particular media representative from all or part of a hearing;

(b)     excluding
    all media representatives from all or a part of a hearing; or

(c)     prohibiting
    the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that the presence of the
    media representative or representatives or the publication of the report, as
    the case may be, would cause emotional harm to a child who is a witness at or a
    participant in the hearing or is the subject of the proceeding.

45.
    (8)
No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

45.
    (9)
The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: Catholic
    Children's Aid Society of Toronto v. N.B., 2013 ONCA 472

DATE: 20130715

DOCKET: C57142

Hoy A.C.J.O, Simmons & Juriansz JJ.A.

BETWEEN

Catholic Childrens Aid Society of Toronto

Applicant (Respondent)

and

N.B
., A.F. and D.B.

Respondent (Appellant)

Anthony Macri, for the Appellant

Shamshad Bee, for the Respondent

Heard and released orally: July 5, 2013

On appeal from the judgment of Justice Kevin Whitaker of
    the Superior Court of Justice, dated April 2, 2013.

ENDORSEMENT

[1]

We reject the appellants argument that the appellant has demonstrated a
    violation of s.7 of the
Charter
because of the improper admission of
    hearsay evidence, opinion evidence, and business records evidence on a motion
    for summary judgment in which the Society sought Crown wardship without access.

[2]

Under the
Family Law
Rules the admission of hearsay evidence is
    not prohibited on a summary judgment motion. In this case the appellant mother
    consented to the protection finding and did not object to the admissibility of
    the evidence now impugned on appeal or seek to cross-examine on it. Although we
    agree that the Societys reliance on hearsay evidence could present procedural
    unfairness in a particular case, as the appellant was represented by counsel in
    the Court below and did not raise the issue, we are not persuaded that any
    procedural unfairness occurred in this case.

[3]

In our view, this decision did not rest on hearsay evidence or
    conflicting evidence. On our review of the record, admissible evidence and admissions
    made by the appellant justify the disposition made by the motion judge. While
    it may be that there was some conflicting evidence in the material before the motion
    judge, on our review of the record, the mother had not presented an adequate
    plan for the care of her children to justify an alternate disposition.

[4]

In these circumstances there was no genuine issue requiring a trial, the
    appeal is therefore dismissed.

A.
    Hoy A.C.J.O.

J.
    M. Simmons J.A.

R.
    G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chan v. Town, 2013 ONCA 478

DATE: 20130715

DOCKET: C56803

Feldman, Simmons & Juriansz JJ.A.

BETWEEN

Nancy Chan

Appellant/Applicant

and

Kenneth Town

Respondent/Respondent

Anita Kain and Lisa Katz, for the appellant

Peter M. Callahan, for the respondent

Heard and released orally: July 5, 2013

On appeal from the order of Justice Antonio Skarica of
    the Superior Court of Justice, dated March 20, 2013.

ENDORSEMENT

[1]

The appellant is the mother of two girls, M. now age 16 and J. age 13.
    The appellant and respondent were former common law spouses now living separate
    and apart. The mother was found in contempt of the order of Justice Murray,
    which was a final order dealing with custody, access, support, and all issues
    regarding the parenting of the children.

[2]

The particular issue was the fathers access at March break. The motion
    judge found that the mother had manipulated M. into believing she could go on a
    school trip to Europe during March break, so that when M. refused to go to Whistler
    with the father on March break, the motion judge found that was the mothers
    fault and therefore found her in contempt. He then ordered, as a remedy, that
    the custody and the decision-making authority for both girls, as set out in the
    order of Justice Murray, be changed to the father from joint custody, until
    August of this year.

[3]

In our view the motion judge made a number of errors, both in finding
    contempt and in the remedy. First, the notice of motion seeking contempt did
    not supply sufficient detail, including the particular impugned actions by the
    mother, to allow her to know the case she had to meet. In fact, although the allegation
    was that she breached s. 6(c) of the order of Justice Murray, the motion
    judges fundamental finding was that she breached s. 8, which was not alleged.

[4]

Second, the motion judge failed to consider all of the evidence before
    him, because he limited himself to two affidavits filed. In so doing he ignored
    one affidavit of the mother. This was an error where he was making a finding of
    proof of contempt beyond a reasonable doubt. The excluded affidavit could potentially
    have raised a reasonable doubt.

[5]

Third, and most important, in our view the record does not support the
    finding that the trial judge made. The affidavits were conflicting and no
    cross-examinations were held. Having regard to M.s own conversations in the
    record about her wishes, it was unreasonable on that record for the motion
    judge to find, beyond a reasonable doubt, that it was solely the mothers
    manipulation that led her to want to go on a school trip to Europe during March
    break and to refuse to go with her father on the Whistler vacation.

[6]

We therefore set aside the finding of contempt. It is nevertheless
    necessary to state that the remedy imposed by the motion judge was not an
    available remedy under rule 31(5) of the
Family Law Rules
. Custodial
    arrangements of children cannot be used as a punishment for contempt. That is
    not to say that there may not be a circumstance where a change in custodial
    arrangements would be in the best interests of the child, but this is not that
    case. There was no motion to vary the final order for custody based on a
    material change in circumstances. The motion judges rationale was that he hoped
    that this would bring peace to warring parents, although he said he recognized
    that it could make matters worse. Finally, we do not see the basis on which the
    motion judge purported to retain jurisdiction, presumably to revisit in August
    the custodial arrangements.

[7]

The appeal is therefore allowed and the contempt order and the remedy
    are set aside. Costs of the appeal to the appellant in the amount of $15,000.00
    inclusive of disbursements and HST. Costs of $5,000.00 payable on the motion,
    now payable to the appellant by the respondent.

K.
    Feldman J.A.

J. M. Simmons J.A.

"R. Juriansz J.A."


WARNING

THIS IS AN
    APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT
    TO S. 45 OF THE ACT WHICH PROVIDES:

45.
    (7)
The court may make an order,

(a)     excluding
    a particular media representative from all or part of a hearing;

(b)     excluding
    all media representatives from all or a part of a hearing; or

(c)     prohibiting
    the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that the presence of the
    media representative or representatives or the publication of the report, as
    the case may be, would cause emotional harm to a child who is a witness at or a
    participant in the hearing or is the subject of the proceeding.

45.
    (8)
No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

45.
    (9)
The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

COURT OF APPEAL
    FOR ONTARIO

CITATION: Children's Aid Society of Oxford
    County v. W.T.C, 2013 ONCA 491

DATE: 20130723

DOCKET: C55909

Hoy A.C.J.O., Feldman and Simmons JJ.A.

BETWEEN

Childrens Aid Society of Oxford County

Applicant
    (Respondent in Appeal)

and

W.T.C.

Respondent (Appellant in Appeal)

John
    Schuman and Rachel Healey, for the appellant

Lorne
    Glass, for the respondent

Katherine
    Kavassalis, for the Office of the Childrens Lawyer

Heard:
    July 4, 2013

On appeal from the order of Justice Johanne N. Morissette
    of the Superior Court of Justice, dated July 20, 2012 dismissing an appeal from
    the order of Justice Peter R. W. Isaacs of the Ontario Court of Justice, dated
    September 2, 2010.

Feldman and Simmons JJ.A.:

[1]

L.H. was born in June 2007. In March 2008, an order was made under the
Child
    and Family Services Act,
R.S.O. 1990, c. C.11 (the CFSA) designating her
    a Crown ward with no access. In February 2009, L.H.s mother brought a status
    review application, seeking an order that L.H. be returned to her care, subject
    to supervision by the
Childrens Aid Society of
    Oxford County (the Society). The trial of the status review application
    commenced in November 2009 and was completed in February 2010.
On September
    2, 2010, the status review application was dismissed.

[2]

The mothers first level appeal from the dismissal of the status review
    application was dismissed by a Superior Court judge on July 20, 2012.

[3]

On appeal to this court, the mother raises several issues relating to
    both the decision of the Superior Court appeal judge and the decision of the status
    review judge. In our view, the central issue to be determined is the impact of
    the fresh evidence applications filed by the mother and the Society.

A.

BACKGROUND

[4]

L.H. was apprehended by the Society shortly after her birth in June
    2007, before she left the hospital. She has four siblings: three older sisters,
    D.S. (born in December 1995), T.C. (born in September 2000) and T.C. (born in
    October 2002
)
, and a younger brother, W.H. (born in October 2008).

[5]

L.H. and her sister, D.S., were made Crown wards with no access on March
    14, 2008; similar orders were made in relation to T.C. and T.C. on April 7,
    2008. The mothers issues at the time of the Crown wardship orders included a
    transient lifestyle, exposure to domestic violence and drug use. Nonetheless,
    during the time these children were in foster care, their mother continued to
    have access to them until December 2007.

[6]

Like L.H., her younger brother, W.H., was apprehended soon after his
    birth and before he left the hospital. W.H. was made a Crown ward, with
    specified access, on December 22, 2008.

[7]

While the mother was pregnant with W.H., she began taking steps to try
    to turn her life around. In February 2009, she initiated status review
    applications in relation to all of her children who had been made Crown wards. The
    proceedings relating to T.C. and T.C. were dismissed in June 2009 because the
    two girls were adopted in January 2009, before the status review applications
    were commenced.

[8]

By the time of the trial of the status review proceeding for L.H., which
    began in November 2009, the mother had a job at Wendys and an apartment. She
    had been drug free for over a year and was continuing to pursue drug
    rehabilitation programs. Her progress was such that the Society was prepared to
    return her oldest child, D.S., and her youngest child, W.H., to her care,
    subject to supervision orders. At the trial of the status review application,
    the foster mother of W.H. attested to the mothers bond with W.H. and to the
    appropriateness of the mothers parenting.

[9]

Despite its position concerning D.S. and W.H., on the status review
    application, the Society took the position that L.H. had special needs and that
    it was not in her best interests that she be returned to her mothers care.

[10]

Evidence
    adduced at the hearing indicated that L.H. was born five weeks premature, that
    she was exposed to cocaine while in the womb and that she developed feeding
    problems while in care, necessitating first the use of an NG tube in her nose
    and later the insertion of a G tube into her stomach to ensure that she
    received sufficient nutrition. The evidence also indicated that L.H. was
    developmentally delayed and required the services of several professionals,
    including a speech therapist, occupational therapist and nutritionist.

[11]

In
    addition, the Society led evidence at the hearing indicating that, in her first
    foster home, L.H. went through an initial period  about three months  of
    extreme irritability, screaming and crying for hours. The foster mother also
    testified L.H. was a wilful child, given to tantrums.

[12]

By the
    time of the status review hearing, L.H. had been placed with a potential
    adoptive family  a mother, a father and three boys  for several months, since
    June 2009. L.H.s foster mother testified that she helped train the potential
    adoptive parents in the use of the G tube and that feeding using the G tube
    could take up to an hour or more.

[13]

According
    to the foster mother, by the time of the status review hearing L.H. was feeding
    orally much of the time. However, she still had choking episodes and was
    fearful about eating. On some days, she needed supplementary nourishment
    through the G tube with a pump.

[14]

L.H.s
    adoption worker testified that L.H.s needs were such that her potential
    adoptive mother initially left her employment to be at home full time to care
    for her. During cross-examination, the worker indicated it had taken six months
    for the relationship between L.H. and her potential adoptive mother to develop.
    She also expressed the opinion that it would be damaging for L.H. to go through
    the placement process again.

[15]

The trial
    concluded in early January 2010 and written submissions were filed on February 26,
    2010.

B.

THE status review JUDGMENT

[16]

In reasons
    released on September 2, 2010, the status review judge dismissed the status
    review application.

[17]

Based on
    the submissions of the parties, he approached the issue before him as being
    whether the mothers changed circumstances constituted a material change in
    circumstances  so as to justify the remedy sought.

[18]

The status
    review judge concluded that a change in the disposition of Crown wardship was
    not justified taking account of several factors:

·

because L.H. was born premature and medically fragile, it had
    been necessary to place her with experienced foster parents;

·

L.H.s first foster mother had provided compelling evidence that
    parenting L.H. required a significant commitment, both because of her medical
    needs and her temperament;

·

although the mothers drug use had significantly improved, it
    remained possible she could relapse;

·

the mother had not demonstrated a real understanding of the
    commitment and effort that would be required to successfully parent L.H.;

·

the mother had not provided specifics concerning how she would
    acquire the knowledge and experience to feed L.H.; and

·

L.H.s best interests required that she be placed in a safe,
    stable, secure home with parents who are capable of providing the time and expertise
    that is necessary in order to prepare [L.H.] for long term development.

[19]

Further,
    the status review judge concluded that [n]othing ha[d] been produced to
    demonstrate that access to [L.H.] by [the mother] will be either beneficial or
    meaningful for the child.

C.

THE SUPERIOR COURT APPEAL JUDGMENT

[20]

On July
    20, 2012, a Superior Court appeal judge dismissed the mothers appeal from the
    status review order, holding that the mother had failed to demonstrate any
    palpable and overriding error in the status review judges reasons. The
    Superior Court appeal judge made no comment on the mothers fresh evidence
    application.

D.

ISSUES RAISED ON APPEAL

[21]

On appeal
    to this court, the mother argues that the Superior Court appeal judge erred in
    declining to admit her fresh evidence.

[22]

Further, the
    mother submits that the status review judge failed to apply the correct test on
    a status review application and that he failed to appreciate that the evidence
    led by the Society did not support a finding that L.H. continued to be in need
    of protection. In the alternative, the mother contends that the status review
    judge erred in failing to order access.

[23]

As an
    additional ground of appeal, the mother submits that neither the Superior Court
    appeal judge nor the status review judge gave adequate reasons for their
    decisions.

[24]

Further, after
    this appeal was perfected, the mother delivered a notice of constitutional
    question, giving notice of her intention to seek a remedy under s. 24(1) of the
Canadian Charter of Rights and Freedoms
. In that regard, the mother
    claims that delays in dealing with this matter have infringed her right to
    security of the person under s. 7 of the
Charter
.

[25]

Both the
    mother and the Society have applied to introduce fresh evidence on appeal.
    However, the Society contends that such evidence is relevant only if this court
    determines there has been an error in the courts below.

E.

ANALYSIS

[26]

As we have
    said, in our view, the central issue to be determined on this appeal is the
    impact of the fresh evidence applications filed by the parties. Before turning
    to that issue, we will briefly explain why we would not give effect to the
    other grounds of appeal raised by the mother. We will deal with the mothers
    notice of constitutional question and the issue of delay as a separate matter.

(1)

Preliminary Issues

[27]

Although
    this is an appeal from the Superior Court appeal judge, the mothers grounds of
    appeal focus primarily on the status review judges reasons. In the
    circumstances, we take the mother to be asserting that the Superior Court
    appeal judge erred by failing to identify a material error in the status review
    judges reasons: see
Childrens Aid Society of Toronto v. G.S.
, 2012
    ONCA 783, 299 O.A.C. 24, at para. 20.

[28]

The mother
    and the Society both submit that the test to be applied on a status review
    application is set out in
Catholic Childrens Aid Society of Metropolitan
    Toronto v. C.M.
, [1994] 2 S.C.R. 165, at p. 200
:

1.

Does the child continue to be in need of protection?

2.

Which of the available range of orders is in the childs best interests?

[29]

That said,
    the mother and the Society disagree on the precise meaning of the test
    articulated in
C.M.

[30]

On the
    mothers interpretation, the first step of the test requires the status review
    judge to determine whether the child continues to be in need of protection as
    that term is defined in s. 37(2) of the CFSA.
[1]
According to the mother, the Society could not meet that test on the status
    review application based on the evidence adduced at the review hearing for two
    reasons.

[31]

First, the
    mother had addressed the protection concerns raised by the Society in its
    initial application  a fact that was demonstrated by the Societys agreement
    that two of the mothers children be returned to her. Second, according to the
    mother, the Society failed to adduce evidence on the status review application
    of L.H.s needs, or other aspects of her situation after the Crown wardship
    order that could demonstrate new protection concerns. In these circumstances,
    no finding that L.H. continued to be in need of protection was available and it
    was necessary that L.H. be returned to her mother.

[32]

We do not
    accept the mothers interpretation of
C.M.
, namely, that the first
    step of the test requires the status review judge to determine whether the
    child continues to be in need of protection as that term is defined in s. 37(2)
    of the CFSA. At p. 200 of its decision in
C.M.
, the Supreme Court of
    Canada made it clear that, in addition to the factors enumerated in s. 37(2) of
    the CFSA, a finding of a continuing need for protection could also be premised
    on the need to protect a child from emotional harm arising from removing the
    child from caregivers to whom the child had become attached and whom the child
    regarded as psychological parents.

[33]

Although
    the status review judge did not specifically address the issue in this way,
    taking account of his view of the mothers evidence, we are satisfied that if
    he had considered the full
C.M.
test, he would have come to the
    conclusion that a continuing need for protection existed and that it was in
    L.H.s best interests to maintain the order for Crown wardship with no access.

[34]

Contrary
    to the mothers submissions, the Society led evidence at the status review
    hearing relating to L.H.s circumstances following the Crown wardship order.
    That evidence consisted, in part, of the evidence of L.H.s first foster mother
    concerning her experience with L.H. as a child living in her home as well as
    her experiences in assisting the proposed adoptive parents in learning to feed
    L.H. In addition, the evidence included the testimony of an adoption worker who
    spent time with the proposed adoptive parents, visited with them as recently as
    November 2009, and opined, when asked to do so by the mothers hearing counsel,
    that it would be damaging for L.H. to go through the placement process again.

[35]

It is
    clear that the status review judge considered this evidence in arriving at his
    decision. He referred to the need to place L.H. in a stable environment that
    could ensure her long-term development. This evidence demonstrated that L.H.
    still had significant needs relating to feeding and arising from her
    developmental delay, that she had experienced difficulties in settling into new
    environments, that she had formed an attachment with her proposed adoptive
    parents, and that, despite her initial difficulties, she appeared to be making
    progress in her proposed adoptive parents home.

[36]

When this
    evidence is combined with the status review judges findings about the
    challenges that the mother would face in coping with L.H.s needs and the needs
    of her two other children, as well as the evidence establishing that the mother
    had not seen L.H. since December 2007, we are satisfied that, in making his
    disposition, the status review judge believed that there would be a significant
    risk of harm to L.H. if she were removed from the potential adoptive parents
    home and that her best interests, as defined in s. 37(3) of the CFSA and as
    more broadly described in
C.M.
, would be served by making an order
    that would facilitate her adoption  Crown wardship with no access. In our
    view, this conclusion is supported by the evidence at the hearing.

[37]

Neither
    counsel made submissions to us about the amendments made to the provisions of
    the CFSA generally and relating to status review applications that came into
    force in 2000; nor did they make submissions about the case law from lower
    courts and commentary suggesting that those amendments may have resulted in a
    shift from the two-step
C.M.
test to a pure best interests test.
[2]
In these circumstances, we consider it unnecessary to address the effect, if
    any, of the 2000 amendments.

[38]

In light
    of our conclusion concerning the status review judges application of the test
    on a status review application, it is unnecessary to address the ground of
    appeal relating to the adequacy of his reasons. The Superior Court appeal judges
    reasons were responsive to the submissions that were made to her, which did not
    include submissions about the test on a status review application. Although we
    agree that the Superior Court appeal judge should have addressed the mothers
    fresh evidence application, the fresh evidence that was tendered is not before
    us. Accordingly, we are not in a position to comment on whether that failure
    gave rise to reversible error.

(2)

The Parties Fresh Evidence Applications

[39]

On appeal
    to this court, both the mother and the Society bring motions seeking to introduce
    fresh evidence. This evidence relates to events that happened following
    the status review application hearing and to the current status of both the
    mother and the child.

[40]

The mothers fresh evidence is in the form of her own sworn
    affidavit. The mother explains that while she could not get medical training
    relating to L.H.s specific needs, she did take other medical courses to better
    prepare herself to provide for L.H.s care. She also explains that she graduated
    from a medical lab assistant/technician course that included some
    health-related components. The mother states that her career has improved
    dramatically since the original hearing, that she now has a part-time managerial
    position at a restaurant, and that she owns a home with a new partner that has
    space to accommodate L.H. The mother also deposes that D.S. and W.H. have been
    living with her and are thriving.

[41]

The Society, for its part, submits an affidavit from the private
    adoption practitioner who supervised the placement of the child with her
    prospective adoptive parents. The affidavit confirms that L.H. no longer
    requires a feeding tube, that the abdominal opening for the feeding tube was
    surgically repaired in January 2013, and that L.H. is in good general health. Without
    any specific supporting information, the practitioner states that the child
    has become very secure and appears to be well attached to her prospective adoptive
    family. It is also noted that the proposed adoptive parents, who also
    have three boys, have separated since the time of the adoption home study but
    that they cooperate and focus on the needs of the children when arranging
    their time. The affidavit confirms that the prospective adoptive family do[es]
    not feel comfortable with any openness in an adoption and that L.H. has not
    seen her older sister D.S. since the placement. The affidavit also includes a
    hearsay statement from the adoptive mother speaking to the childs current
    status and needs.

[42]

The Society argues that we should only consider the fresh evidence
    if we are satisfied there was an error in the court below. We do not accept this
    submission.

[43]

In
C.M.
,
    at pp. 188-89, the Supreme Court of Canada indicated that a flexible standard
    should be adopted for the admission of fresh evidence in family law cases
    involving children, in circumstances where accurate and up-to-date information
    concerning the best interests of children, when considered with the evidence adduced
    at trial, might reasonably affect the outcome of the appeal.

[44]

Further, in
Childrens Aid Society of Peel v. W. (M.J.)
(1995), 23 O.R. (3d) 174 (C.A.), this court noted, that having
    regard to the flexible standard, the admission of fresh evidence will not lead
    inexorably to reversal of the trial judgment or ordering a new trial. Rather,
    the fresh evidence, if admitted, must be reviewed with the other evidence in
    determining what the appropriate disposition of the appeal should be: at p.
    193.

[45]

In our view, this is just such a case requiring the admission of
    fresh evidence to determine the proper disposition of the appeal.

[46]

The evidence submitted by the Society indicates that the proposed
    adoptive parents have now separated. The status review judges reasons make it
    clear that the stable two-parent home provided by the proposed adoptive parents
    was a key factor in his decision to uphold the order for Crown wardship with no
    access. If stability  and harmony  and two supportive parents  are no longer
    features of the proposed adoptive home, those are factors that could impact the
    outcome of the appeal.

[47]

In our view, in its role as the statutory protector of L.H.s best
    interests, it was incumbent on the Society to seek to introduce fresh evidence
    relating to the separation of the proposed adoptive parents and the impact of
    the separation on L.H., so that this court can satisfy itself that the order
    under review remains in the childs best interests.

[48]

On our review, the Societys evidence is not adequate to permit us
    to do so. Although the adoption practitioner states that the proposed adoptive
    parents remain co-operative and child-focused, her evidence in that respect is
    supported by little in the way of facts capable of permitting us to assess the
    accuracy of her statements. She did not disclose the particulars of the
    financial arrangements between the parties concerning the children in the
    mothers care, nor did she indicate how the financial or access arrangements
    have been formalized. Equally important, the adoption practitioners evidence
    does not provide us with facts to permit us to assess the impact of the
    proposed adoptive parents separation on L.H.

[49]

In all the
    circumstances, we consider this an appropriate case for the Society to provide
    an assessment of the proposed adoptive parents and L.H. to address: the impact
    of the separation on the ability of the proposed adoptive parents to parent
    L.H., the impact of the separation on L.H., and whether access with her birth
    mother and her siblings in her birth mothers care would be in L.H.s best
    interests. The assessment should be in the form contemplated by s. 54 of the
    CFSA. The parties shall have ten days following the release of these reasons to
    select an assessor and submit the name of the assessor to the court. The
    assessor shall submit an assessment report to this court within 30 days of the
    date of appointment.

(3)

Constitutional Remedy

[50]

In
    bringing the appeal to this court, the mother served a Notice of Constitutional
    Question on the Attorney General of Ontario and on the Attorney General of
    Canada, stating that her s. 7
Charter
rights were infringed by the
    institutional delay in the progress of this case, which caused L.H. to remain
    in the care of the prospective adoptive parents from June 2009 to the present
    with no access to the mother. This delay effectively created a situation where
    L.H. has lived with the prospective adoptive family for four years and
    therefore had the exclusive opportunity to bond with them.

[51]

In her
    factum, the mother asked for a declaration that her
Charter
rights had
    been breached. In oral argument, on the issue of remedy, counsel confirmed that
    the mother was asking for the same relief that she was already seeking on the
    appeal, or a monetary award, although he noted that the mother is not really
    seeking such an award. She is seeking custody of or access to her daughter.

[52]

No one on
    behalf of either Attorney General appeared nor did anyone seek to take part in
    this appeal. We also note that the Notice of Constitutional Question that was
    served did not seek any remedy from the Attorneys General.

[53]

The basis
    of the mothers s. 7 claim is the institutional delay that occurred in this
    case. The chronology began in March 2008 when the order for Crown wardship with
    no access was made for L.H. The mother applied for a status review under s.
    65.1 of the CFSA on February 20, 2009, returnable on April 6, 2009. Although
    Rule 33 of the
Family Law Rules
, O. Reg. 114/99 provides that a status
    review hearing must be completed within 120 days, for reasons unexplained in
    the record, the status review hearing in this case did not begin until November
    16, 2009. In the meantime, in June 2009, L.H. was placed with the prospective
    adoptive family with whom she continues to reside today. The hearing was continued
    on January 5, 2010 with written submissions on February 26, 2010. The reasons
    of the status review judge were released on September 2, 2010.

[54]

For the
    purposes of the appeal to the Superior Court, the mother ordered the transcript
    of the hearing on January 29, 2011, but it was not prepared for 13 months until
    March 7, 2012. The appeal record to the Superior Court was filed on April 23,
    2012. The Superior Court appeal judge released her reasons on July 20, 2012. Because
    her reasons were given orally, the transcript of those reasons had to be
    ordered for the purpose of the appeal to this court. The transcript was not
    produced until December 17, 2012. The mother was also not able to perfect her
    appeal to this court without orders of the two lower courts, which could only
    be obtained with the Societys cooperation.

[55]

In
    summary, the mother submits that her rights under s. 7 of the
Charter
have been violated by delays she did not cause. Although she initiated the
    status review in February 2009, the decision of the court only came in
    September 2010. Her appeal was then delayed for 13 months because the
    transcript of the hearing, which was required, took that long to prepare. There
    was then an additional delay in bringing the further appeal to this court
    because the oral reasons of the appeal judge, which were very brief  just two
    pages (plus 17 pages of submissions)  were not prepared for several months.

[56]

It is evident
    that expedition of the proceedings is particularly important in child welfare
    cases, where the lives of a child, her family and in some cases such as this
    one, a potential adoptive family, are put on hold awaiting the outcome.

[57]

Counsel
    for the Society suggested in oral argument that the onus was on the mother to
    move before the court for orders expediting the transcripts. We disagree. As
    custodian of the process, it is incumbent on the Society to use its best
    efforts to ensure that the process moves expeditiously, in the best interests
    of the child. In that role, it is the Society that should be alerting the court
    to any delays that may be occurring and asking the court to make the necessary
    orders to remedy those delays.

[58]

Having
    said that, institutional delays, such as in transcript preparation, are not the
    fault of either party to the process. The mother argues that the delays in this
    case have affected the fairness of the review process and have thus violated
    her s. 7
Charter
rights.

[59]

It is
    clear that in child welfare matters, where the fate of a child is determined
    through the CFSA protection process, including appeals, hearing dates must be
    timely and transcripts must generally be produced on a priority basis. Where
    that does not occur, the rights of the child and of her family can be affected.

[60]

However,
    whether any of these delays can amount to a
Charter
breach, whether
    they do in this case, and if so, who is responsible for them and whether there
    is an appropriate remedy that does not affect the courts disposition regarding
    the child, are questions where the court would benefit from submissions on behalf
    of the Attorney General of Ontario.

[61]

These
    reasons shall be provided to the Attorney General of Ontario by the Registrar.
    The court requests the Attorney General to provide written submissions to
    assist the court within 30 days. If the Attorney General would like to make
    oral submissions, arrangements will be made as well.

F.

DISPOSITION

[62]

Based on
    the foregoing reasons, the appeal is reserved pending receipt of further
    material.

Released: KF  July 23, 2013

K.Feldman J.A.

J.M.
    Simmons J.A.

"I agree. A. Hoy
    A.C.J.O.

APPENDIX A

Child and
    Family Services Act
,
R.S.O. 1990, c. C.11

Paramount
    purpose and other purposes

Paramount
    purpose

1.       (1) The paramount purpose of this
    Act is to promote the best interests, protection and well being of children.

Other
    purposes

(2) The additional purposes of this Act, so long as they
    are consistent with the best interests, protection and well being of children,
    are:

1. To recognize that while parents may 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.

2. To recognize that the least disruptive course of action
    that is available and is appropriate in a particular case to help a child should
    be considered.

3. To recognize that childrens services should be provided
    in a manner that,

i. respects a childs need for continuity of care and for
    stable relationships within a family and cultural environment,

ii. takes into account physical, cultural, emotional,
    spiritual, mental and developmental needs and differences among children,

iii. provides early assessment, planning and
    decision-making to achieve permanent plans for children in accordance with
    their best interests, and

iv. includes the participation of a child, his or her
    parents and relatives and the members of the childs extended family and
    community, where appropriate.

4. To recognize that, wherever possible, services to
    children and their families should be provided in a manner that respects
    cultural, religious and regional differences.

5. To recognize that Indian and native people should be
    entitled to  services to Indian and native children and families should be
    provided in a manner that recognizes their culture, heritage and traditions and
    the concept of the extended family. 1999, c. 2, s. 1; 2006, c. 5, s. 1.

Interpretation

Child
    in need of protection

37.     (2)
    A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the
    person having charge of the child or caused by or resulting from that persons,

(i) failure to adequately care for, provide for, supervise
    or protect the child, or

(ii) pattern of neglect in caring for, providing for,
    supervising or protecting the child;

(b) there is a risk that the child is likely to suffer
    physical harm inflicted by the person having charge of the child or caused by
    or resulting from that persons,

(i) failure to adequately care for, provide for, supervise
    or protect the child, or

(ii) pattern of neglect in caring for, providing for,
    supervising or protecting the child;

(c) the child has been sexually molested or sexually
    exploited, by the person having charge of the child or by another person where
    the person having charge of the child knows or should know of the possibility
    of sexual molestation or sexual exploitation and fails to protect the child;

(d) there is a risk that the child is likely to be sexually
    molested or sexually exploited as described in clause (c);

(e) the child requires medical treatment to cure, prevent
    or alleviate physical harm or suffering and the childs parent or the person
    having charge of the child does not provide, or refuses or is unavailable or
    unable to consent to, the treatment;

(f) the child has suffered emotional harm,
    demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive
    behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the
    emotional harm suffered by the child results from the actions, failure to act
    or pattern of neglect on the part of the childs parent or the person having
    charge of the child;

(f.1) the child has suffered emotional harm of the kind
    described in subclause (f) (i), (ii), (iii), (iv) or (v) and the childs 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 risk that the child is likely to suffer
    emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or
    (v) resulting from the actions, failure to act or pattern of neglect on the
    part of the childs parent or the person having charge of the child;

(g.1) there is a risk that the child is likely to suffer
    emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or
    (v) and that the childs 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;

(h) the child suffers from a mental, emotional or
    developmental condition that, if not remedied, could seriously impair the
    childs development and the childs parent or the person having charge of the
    child does not provide, or refuses or is unavailable or unable to consent to,
    treatment to remedy or alleviate the condition;

(i) the child has been abandoned, the childs parent has
    died or is unavailable to exercise his or her custodial rights over the child
    and has not made adequate provision for the childs care and custody, or the
    child is in a residential placement and the parent refuses or is unable or
    unwilling to resume the childs care and custody;

(j) the child is less than twelve years old and has killed
    or seriously injured another person or caused serious damage to another
    persons property, services or treatment are necessary to prevent a recurrence
    and the childs parent or the person having charge of the child does not
    provide, or refuses or is unavailable or unable to consent to, those services
    or treatment;

(k) the child is less than twelve years old and has on more
    than one occasion injured another person or caused loss or damage to another
    persons property, with the encouragement of the person having charge of the
    child or because of that persons failure or inability to supervise the child
    adequately; or

(l) the childs parent is unable to care for the child and
    the child is brought before the court with the parents consent and, where the
    child is twelve years of age or older, with the childs consent, to be dealt
    with under this Part. R.S.O. 1990, c. C.11, s. 37 (2); 1999, c. 2, s. 9.

Bests
    interests of child

(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 childs physical, mental and emotional needs, and
    the appropriate care or treatment to meet those needs.

2. The childs physical, mental and emotional
    level of development.

3. The childs cultural background.

4. The religious faith, if any, in which the
    child is being raised.

5. The importance for the childs development of a positive
    relationship with a parent and a secure place as a member of a family.

6. The childs relationships and emotional ties to a
    parent, sibling, relative, other member of the childs extended family or
    member of the childs community.

7. The importance of continuity in the childs care and the
    possible effect on the child of disruption of that continuity.

8. The merits of a plan for the childs care proposed by a
    society, including a proposal that the child be placed for adoption or adopted,
    compared with the merits of the child remaining with or returning to a parent.

9. The childs 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. R.S.O. 1990, c. C.11,
    s. 37 (3); 2006, c. 5, s. 6 (3).

Order
    where child in need of protection

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 or an order under section 57.1, in the childs
    best interests:

Supervision
    order

1. That the child be placed in the care and custody of a
    parent or another person, subject to the supervision of the society, for a
    specified period of at least three months and not more than 12 months.

Society
    wardship

2. That the child be made a ward of the society and be
    placed in its care and custody for a specified period not exceeding twelve
    months.

Crown
    wardship

3. That the child be made a ward of the Crown, until the
    wardship is terminated under section 65.2 or expires under subsection 71 (1),
    and be placed in the care of the society.

Consecutive
    orders of society wardship and supervision

4. That the child be made a ward of the society under
    paragraph 2 for a specified period and then be returned to a parent or another
    person under paragraph 1, for a period or periods not exceeding an aggregate of
    twelve months. R.S.O. 1990, c. C.11, s. 57 (1); 2006, c. 5, s. 13 (1-3).

Court
    to inquire

(2) In determining which order to make under subsection (1)
    or section 57.1, the court shall ask the parties what efforts the society or
    another agency or person has made to assist the child before intervention under
    this Part. 2006, c. 5, s. 13 (4).

Less
    disruptive alternatives preferred

(3) The court shall not make an order removing the child
    from the care of the person who had charge of him or her immediately before
    intervention under this Part unless the court is satisfied that alternatives
    that are less disruptive to the child, including non-residential services and
    the assistance referred to in subsection (2), would be inadequate to protect
    the child. 1999, c. 2, s. 15 (1).

Community
    placement to be considered

(4) Where the court decides that it is necessary to remove
    the child from the care of the person who had charge of him or her immediately
    before intervention under this Part, the court shall, before making an order
    for society or Crown wardship under paragraph 2 or 3 of subsection (1),
    consider whether it is possible to place the child with a relative, neighbour
    or other member of the childs community or extended family under paragraph 1
    of subsection (1) with the consent of the relative or other person. R.S.O.
    1990, c. C.11, s. 57 (4).

Idem:
    where child an Indian or a native person

(5) Where the child referred to in subsection (4) is an
    Indian or a native person, unless there is a substantial reason for placing the
    child elsewhere, the court shall place the child with,

(a) a member of the childs extended family;

(b) a member of the childs band or native
    community; or

(c) another Indian or native family. R.S.O.
    1990, c. C.11, s. 57 (5).

(6) Repealed: 1999, c. 2, s. 15 (2).

Idem

(7) When the court has dispensed with notice to a person
    under subsection 39 (7), the court shall not make an order for Crown wardship
    under paragraph 3 of subsection (1), or an order for society wardship under
    paragraph 2 of subsection (1) for a period exceeding thirty days, until a
    further hearing under subsection 47 (1) has been held upon notice to that
    person. R.S.O. 1990, c. C.11, s. 57 (7).

Terms
    and conditions of supervision order

(8) If the court makes a supervision order under paragraph
    1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the childs
    care and supervision;

(b) reasonable terms and conditions on,

(i) the childs parent,

(ii) the person who will have care and custody of the child
    under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is
    putting forward or would participate in a plan for the care and custody of or
    access to the child; and

(c) reasonable terms and conditions on the society that
    will supervise the placement, but shall not require the society to provide
    financial assistance or purchase any goods or services. 2006, c. 5, s. 13 (5).

Where
    no court order necessary

(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. R.S.O. 1990, c. C.11, s. 57 (9).

Status
    review, Crown ward and former Crown wards

65.1   (1) This section applies where a
    child is a Crown ward or is the subject of an order for society supervision
    under clause 65.2 (1) (a) or a custody order under clause 65.2 (1) (b). 2006,
    c. 5, s. 24.

Society
    to seek status review

(2) The society that has or had care, custody or
    supervision of the child,

(a) may apply to the court at any time, subject to
    subsection (9), for a review of the childs status;

(b) shall apply to the court for a review of the childs
    status before the order expires if the order is for society supervision, unless
    the expiry is by reason of subsection 71 (1); and

(c) shall apply to the court for a review of the childs
    status within five days after removing the child, if the society has removed
    the child,

(i) from the care of a person with whom the child was
    placed under an order for society supervision described in clause 65.2 (1) (a),
    or

(ii) from the custody of a person who had custody of the
    child under a custody order described in clause 65.2 (1) (b). 2006, c. 5, s.
    24.

Application
    of cl. (2) (a) and (c)

(3) Clauses (2) (a) and (c) also apply to the society that
    has jurisdiction in the county or district,

(a) in which the parent or other person with whom the child
    is placed resides, if the child is the subject of an order for society supervision
    under clause 65.2 (1) (a); or

(b) in which the person who has custody resides, if the
    child is the subject of a custody order under clause 65.2 (1) (b). 2006, c. 5,
    s. 24.

Others
    may seek status review

(4) An application for review of a childs status under
    this section may be made on notice to the society by,

(a) the child, if the child is at least 12
    years of age;

(b) a parent of the child;

(c) the person with whom the child was placed under an
    order for society supervision described in 65.2 (1) (a);

(d) the person to whom custody of the child was granted, if
    the child is subject to an order for custody described in clause 65.2 (1) (b);

(e) a foster parent, if the child has lived continuously
    with the foster parent for at least two years immediately before the
    application; or

(f) a representative chosen by the childs band or native
    community, if the child is an Indian or native person. 2006, c. 5, s. 24.

When
    leave to apply required

(5) Despite clause (4) (b), a parent of a child shall not
    make an application under subsection (4) without leave of the court if the
    child has, immediately before the application, received continuous care for at
    least two years from the same foster parent or from the same person under a
    custody order. 2006, c. 5, s. 24.

Notice

(6) A society making an application under subsection (2) or
    receiving notice of an application under subsection (4) shall give notice of
    the application to,

(a) the child, except as otherwise provided under
    subsection 39 (4) or (5);

(b) the childs parent, if the child is under
    16 years of age;

(c) the person with whom the child was placed, if the child
    is subject to an order for society supervision described in clause 65.2 (1)
    (a);

(d) the person to whom custody of the child was granted, if
    the child is subject to an order for custody described in clause 65.2 (1) (b);

(e) any foster parent who has cared for the child
    continuously during the six months immediately before the application; and

(f) a representative chosen by the childs band or native
    community, if the child is an Indian or native person. 2006, c. 5, s. 24.

Six-month
    period

(7) No application shall be made under subsection (4)
    within six months after the latest of,

(a) the day the order was made under subsection 57 (1) or
    65.2 (1), whichever is applicable;

(b) the day the last application by a person under
    subsection (4) was disposed of; or

(c) the day any appeal from an order referred to in clause
    (a) or a disposition referred to in clause (b) was finally disposed of or
    abandoned. 2006, c. 5, s. 24.

Exception

(8)  Subsection (7) does not apply if,

(a) the child is the subject of,

(i) an order for society supervision described in clause
    65.2 (1) (a),

(ii) an order for custody described in clause
    65.2 (1) (b), or

(iii) an order for Crown wardship under subsection 57 (1)
    or clause 65.2 (1) (c) and an order for access under section 58; and

(b) the court is satisfied that a major element of the plan
    for the childs care that the court applied in its decision is not being
    carried out. 2006, c. 5, s. 24.

No
    review if child placed for adoption

(9) No person or society shall make an application under
    this section with respect to a Crown ward who has been placed in a persons
    home by the society or by a Director for the purposes of adoption under Part
    VII, if the Crown ward still resides in the persons home. 2006, c. 5, s. 24.

Interim
    care and custody

(10) If an application is made under this section, the
    child shall remain in the care and custody of the person or society having
    charge of the child until the application is disposed of, unless the court is
    satisfied that the childs best interests require a change in the childs care
    and custody. 2006, c. 5, s. 24.

Court
    order

65.2   (1) If an application for review of a
    childs status is made under section 65.1, the court may, in the childs best
    interests,

(a) order that the child be placed in the care and custody
    of a parent or another person, subject to the supervision of the society, for a
    specified period of at least three months and not more than 12 months;

(b) order that custody be granted to one or more persons,
    including a foster parent, with the consent of the person or persons;

(c) order that the child be made a ward of the Crown until
    wardship is terminated under this section or expires under subsection 71 (1);
    or

(d) terminate or vary any order made under section 57 or
    this section. 2006, c. 5, s. 24.

Variation,
    etc.

(2) When making an order under subsection (1), the court
    may, subject to section 59, vary or terminate an order for access or make a
    further order under section 58. 2006, c. 5, s. 24.

Same

(3) Any previous order for Crown wardship is terminated if
    an order described in clause (1) (a) or (b) is made in respect of a child.
    2006, c. 5, s. 24.

Terms
    and conditions of supervision order

(4) If the court makes a supervision order described in
    clause (1) (a), the court may impose,

(a) reasonable terms and conditions relating to the childs
    care and supervision;

(b) reasonable terms and conditions on the childs parent,
    the person who will have care and custody of the child under the order, the
    child and any other person, other than a foster parent, who is putting forward
    a plan or who would participate in a plan for care and custody of or access to
    the child; and

(c) reasonable terms and conditions on the society that
    will supervise the placement, but shall not require the society to provide
    financial assistance or purchase any goods or services. 2006, c. 5, s. 24.

Access

(5) Section 59 applies with necessary modifications if the
    court makes an order described in clause (1) (a), (b) or (c). 2006, c. 5, s.
    24.

Custody
    proceeding

(6) Where an order is made under this section or a
    proceeding is commenced under this Part, any proceeding respecting custody of
    or access to the same child under the Childrens Law Reform Act is stayed
    except by leave of the court in the proceeding under that Act. 2006, c. 5, s.
    24.

Rights
    and responsibilities

(7) A person to whom custody of a child is granted by an
    order under this section has the rights and responsibilities of a parent in
    respect of the child and must exercise those rights and responsibilities in the
    best interests of the child. 2006, c. 5, s. 24.

[1]

The full text of relevant sections of the CFSA is included in
    Appendix A.

[2]

For example, see Jeffrey Wilson,
Wilson on Children
    and the Law
, loose-leaf (Markham: LexisNexis, 1994), at
    s. 3.251;
Catholic Childrens Aid Society of Hamilton v. M.A.M.
, [2003] O.J. No. 1274 (S.C.), at paras. 34-35.