S.R. v. Catholic Children’s Aid Society of Toronto, 2011 ONCJ 11

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 48(7) , 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

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 publication of the report, . . ., 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.

(8) Prohibition: identifying child.— 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 child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — 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. . . . 85. —

(3) Idem. — A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Toronto (North York) Registry No. C23252/03 DATE: 2011·I·17 CITATION: S.R. v. Catholic Children’s Aid Society of Toronto , 2011 ONCJ 11 ONTARIO COURT OF JUSTICE IN THE MATTER OF a motion for permission under subsection 65.1(5) of the Child and Family Services Act , R.S.O. 1990, c.

C-11, as amended, to proceed with a status review application with respect to Taishauna Ra.-Ro. (born 20 May 2003) and Shawntaja Ra.-Ro. (born 10 November 2004), Crown wards; BETWEEN: SEAN Ra., Applicant, — AND — CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Respondent.

Before Justice Robert J. Spence Heard on 12 January 2011 Reasons for Judgment released on 17 January 2011 CHILD PROTECTION — Status review — Procedure — Who may apply — Parent — Court’s prior permission — Criteria for court’spermission — About 6 years ago, local children’s aid society had apprehended 2 girls (now 7½ and 6 years old) from home with historyof domestic violence — Children had been in foster care since that time — At trial 4½ years ago, court had made 2 girls (now 7½ and 6years old) Crown wards without access for purpose of their adoption — Natural father, who had not seen children since theirapprehension, was in prison at that time and took no

part in trial — Paternal grandmother appealed, first to Supreme Court of Ontario andthen to Court of Appeal unsuccessfully — Only after completion of appeal process 2½ years ago was society legally able to moveforward with adoption process — At that time, foster parents were not in position to adopt girls and society looked elsewhere for suitableadoptive home — Society found possible placement but more than year later, plan did not work out — By that time, however, fosterparents indicated desire to adopt girls — With society’s blessing, they completed mandatory training program for adoptive parents andsuccessfully underwent assessment for suitability as adoptive parents — Just as society was about to effect formal adoption “placement”of children with foster parents, father filed and served status review application — Since his release from prison, father claimed to bereformed person — His vision was to begin with supervised access to girls, graduating to unsupervised access and eventually full-timereturn of children to his care — Statute required father to get court’s prior permission to proceed with status review — In absence ofstatutory guidelines for permission, court examined 5 criteria set out in case of Catholic Children’s Aid Society of Metropolitan Torontov.

Beverley Ann F., (Ont. Prov. Ct., Fam. Div.), but allowed for possibility that these 5 criteria did not have to becumulative and that there might be other factors — Nevertheless, court did review each criterion: 1. Good faith of proposed status review: court doubted that father’s application was being made in good faith, but insisted that itsfinal decision did not rest upon conclusion that father has not met first criterion.2. Least drastic remedy for relief sought: Father met this criterion because he could not get relief that he was seeking withoutstatus review application.3.

Unusual circumstance to justify court’s intervention: Fact of father’s release from prison was change in circumstances but factthat he would eventually be released from prison was well known at time of trial and hardly so unusual as to justify intrusioninto children’s long-term permanency planning.4. Promotion of objectives

section 1 of Child and Family Services Act: Court carefully reviewed “best interests” factors insubsection 37(3) of Act and found father sadly wanting nearly all of them; any plan involving father in children’s foreseeablefuture would not only be contrary to their best interests, but would pose very real risk of harm to them; failure of this criterionalone would be enough to doom father’s application.5.

Prima facie prospect of success in status review: Father’s plan rested on his own mother’s open statement of assistance, butthis was very woman whom trial court had rejected as proposed caregiver for children and whom appeal courts had likewiserejected; worse yet, to extent that this woman might be using father’s application for status review to achieve through the backdoor what she had been unable to achieve through front door at trial and on appeals, her actions might come close toconstituting abuse of court’s process.

Father’s status review application was product of wishful thinking on his part and had no merit — To allow it to proceed would onlycreate further delay in achieving finality and stability in lives of these children and would not only be contrary to their best interests butwould run counter to everything for which Child and Family Services Act stood. STATUTES AND REGULATIONS CITED Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subsection 37(3),

section 59, subsection 65.1(4), subsection 65.1(5),subsection 65.1(9) and

section 70 CASES CITED Catholic Children’s Aid Society of Metropolitan Toronto v. F. (Beverley Ann), , [1988] O.J. No. 2950, 1988 Cars​well​-Ont 2213 (Ont. Prov. Ct., Fam. Div.). Catholic Children’s Aid Society of Toronto v. Ro. (Sheena), A. (Wayne), Ra. (Sean) and Ra. (Victoria Noeline), 2006 ONCJ 212, 171A.C.W.S. (3d) 870, [2006] O.J. No. 2283, 2006 Cars​well​Ont 3487 (Ont. C.J.). Children’s Aid Society of Toronto v. C. (Michelle) and H. (Kenneth), , 126 A.C.W.S. (3d) 275, [2004] W.D.F.L. 87,[2003] O.J. No. 4017, 2003 Cars​well​Ont 3944 (Ont. C.J.). Dilico Anishinabek Family Care v.

T. (Marsha), C. (Alister) and M’Chigeeng First Nation, 2010 ONCJ 105, [2010] 2 C.N.L.R. 136,[2010] O.J. No. 1186, 2010 Cars​well​Ont 1737 (Ont. C.J.). Durham Children’s Aid Society v. S.(J-A.) and Diviney, , [2009] O.J. No. 5901, 2009 Cars​well​Ont 8777 (Ont. Fam.Ct.). In Motion Investments Ltd. v. Theravitae Inc., 2010 ONCA 892, [2010] O.J. No. 5574, 2010 Cars​well​Ont 9695 (Ont. C.A). McGowan v. Toronto (City), 2010 ONCA 362, 70 M.P.L.R. (4th) 193, [2010] O.J. No. 2029, 2010 Cars​well​Ont 3224 (Ont. C.A.).

Re Nortel Networks Corp., 2011 ONCA 10, [2011] O.J. No. 22, 2011 Cars​well​Ont 11 (Ont. C.A.). Re Ravelston Corp., 2007 ONCA 268, 31 C.B.R. (5th) 233, [2007] O.J. No. 1389, 2007 Cars​well​Ont 2114 (Ont. C.A.). Walden v. Walden, , (1996), 88 O.A.C. 139, 45 C.P.C. (3d) 262, [1996] O.J. No. 109, 1996 Cars​well​Ont 90 (Ont. C.A.).

Jeffrey Stone .................................................................................. counsel for the applicant father Fatima Husain ............................................................................ counsel for the respondent society For previous proceedings, see: • Crown wardship of children without access for purpose of adoption: Catholic Children’s Aid Society of Toronto v. SheenaRo., Wayne A., Sean Ra. and Victoria Noeline Ra., 2006 ONCJ 212, 171 A.C.W.S. (3d) 870, [2006] O.J. No. 2283, 2006Cars​well​Ont 3487 (Ont. C.J.), per Justice Robert J.

Spence; • affirmed on appeal: Catholic Children's Aid Society of Toronto v. Sheena Ro., 2007 Cars​well​Ont 9363 (Ont. S.C.), perJustice Nancy L. Backhouse; and • affirmed on further appeal: Victoria Noeline Ra. v. Catholic Children’s Aid Society of Toronto, 2008 ONCA 494, 170A.C.W.S. (3d) 81, [2008] O.J. No. 2441, 2008 CarswellOnt 3604 (Ont. C.A.), per Chief Justice Warren K. Winkler andAppeal Justices Kathryn N. Feldman and Justice Joan L. Lax (ad hoc). JUSTICE R.J.

SPENCE:— 1: NATURE OF THE CASE [1] This is Sean Ra.’s (“father”) motion for leave to bring a status review application pursuant to subsection 65.1(5) of theChild and Family Services Act, R.S.O. 1990, c. C-11, as amended (“Act”). He seeks to set aside the existing Crown wardship order, noaccess, for the purpose of adoption, so that he can begin to have access with the children who are the subject of the Crown wardshiporder. His eventual goal is for the children to live with him on a permanent basis.

The Catholic Children’s Aid Society of Toronto(“society”) opposes the leave motion, seeking instead to proceed with the children’s adoption. 2: BACKGROUND [2] This case involves two young girls, namely, Taishauna Ra.-Ro. (born on 20 May 2003) and Shawntaja Ra.-Ro. (born on10 November 2004).

The society apprehended the children in January 2005, following a history of domestic violence in the home. [3] At the conclusion of a 19-day trial before me, in June 2006, I ordered that both children be made Crown wards, with noaccess, for the purpose of adoption.[1] The father was in prison and did not participate in the trial. [4] That order was appealed, first to the Superior Court of Justice and then to the Ontario Court of Appeal. Both appealswere dismissed and the Crown wardship order was upheld.

It took two years from the date the trial decision was released until the Courtof Appeal disposed of the final appeal in June 2008. [5] The girls have not seen their father since he was arrested and incarcerated in or about February 2005. Accordingly, thelast time Taishauna Ra.-Ro. saw her father, she was less than two years old, and the last time Shawntaja Ra.-Ro. saw her father, she wasabout three months old. [6] The father was charged with numerous criminal offences, many pertaining to violence and weapons.

I cite thefollowing from my reasons for judgment at trial, being just some of the facts which the father admitted to at his criminal sentencinghearing in November 2005 when he pleaded guilty to 13 of those offences (at paragraph [43]): [my emphasis]: Almost from the beginning [of his relationship with the mother, he was] repeatedly assaulting [themother], threatening her with death and demeaning her. The threats took place on almost a weeklybasis. [He] was also controlling, dominant and very jealous of any contact or perceived contact between[the mother] and other men.

When [the mother] was eight months pregnant with their first child . . ., [he] retrieved a sawed-off shotgun and stuck the barrel of the gun into [the mother’s] mouth andstated repeatedly that he should shoot her and that “I should just kill you”. [On another occasion, he]punched her in the face with a closed fist [which caused her] glasses to cut her face below the eye,leaving a small scar. [On another occasion, he] grabbed a beer bottle and smashed the bottle over [her]head. [On another occasion, he] grabbed her by the neck using both hands and pressed on her throatuntil she passed out. [7] The purpose of citing these facts is to provide a small sampling of the kind of violence that the father had inflicted onhis family and a flavour of what was happening in the family home, leading up to the eventual apprehension of the children by thesociety. [8] Following his sentencing hearing on the 13 counts of violence and weapons-related offences, the court sentenced the

father to periods of incarceration totalling approximately six years. He was given credit for pre-trial custody, thereby reducing his remaining prison time to four and one-half years. [ 9 ] The father’s criminal history dates back to 1996, when he was only 13 years old. Since embarking on his criminal career at that young age, he has been convicted of many offences and on numerous occasions.

His convictions include weapons offences, assaults — including sexual assaults, threats, pointing a firearm, break-in and entry, theft, and other offences. [ 10 ] In the 14 years since his first set of convictions in 1996, the longest he has remained free of convictions is 33 months — from June 1998 until March 2001. [ 11 ] On the most recent set of convictions and subsequent sentencing in November 2005, he finally satisfied his criminal sanctions and was released unconditionally in October 2010. Accordingly, he has been entirely free of the criminal law for approximately three months.

The father is now 27 years old. [ 12 ] During the time that it took for the aforementioned Crown wardship appeals to wend their way through the courts, the girls obviously could not be placed for adoption. In June 2008, when all the appeals were exhausted, the foster parents, who have been caring for the girls since January 2005, were not, at that time, in a position to adopt them. However, once the appeals were all dismissed, the society was then able to move forward with the adoption process and it sought out a suitable adoptive home.

Potential adoptive parents were subsequently identified, but that adoptive placement fell through in late 2009. When this occurred, in November 2009, the foster parents who, by then had been caring for these children for almost 5 years, indicated a willingness to adopt the girls. The foster parents subsequently completed the mandatory training program required of all adoptive parents and the society successfully completed its assessment, satisfying itself that the foster parents would be suitable adoptive parents. All of this was done by early November 2010.

The society was then just about to “place” [2] the girls for the purpose of adoption, when it was served with the father’s status review application. [ 13 ] It is against this backdrop that the father now seeks status review of the Crown wardship order. The substantive relief that he is requesting is “supervised access leading to unsupervised access”. Eventually, according to the father’s status review application, he wishes to have the children returned to him on a permanent basis.

The father states in his material that he does not expect the children to be returned to him immediately; rather, that he needs to work up to this position by beginning with supervised access, then unsupervised access and, finally, a full return of the children to his care. Of course, the court cannot make any order for access — whether supervised or unsupervised — without first setting aside the Crown wardship order. This is because the Act does not permit an access order to be made while an adoption order is in place. [3] 3: THE FATHER’S POSITION [ 14 ] The father acknowledges his criminal past.

He argues that he fell under the influence of a bad crowd and that he chose a path in his life, which is no longer a reflection of who he is today. He says that he is changed person. Since his release from prison, he has been employed at an auto body shop in Toronto as an apprentice mechanic, where he actually began to work in July 2009. [4] He works four days per week from 10:00 a.m. until 3:00 p.m.

He deposes that this is the “longest straight employment I have had in my life and is an example of the positive changes I have made in my life.” [ 15 ] In respect of the violence that he committed against the mother of the children, the father says: “I have apologized to [her]”. [ 16 ] He says that he completed a “National Substance Abuse Program”, but he provides no further information or details as to what substances he was abusing, or for how long. Nor does he provide any letters or independent evidence as to what this program was about, or the extent of his involvement in it.

He attached to his affidavit a “Certificate of Completion” of this Program, which was “awarded” to him in September 2008. [5] [ 17 ] He also completed a “High Intensity Family Violence Treatment Program”. Again, there are no details — how often did he attend program sessions, what was the length of each session, what did he accomplish in the sessions, did the program effect any meaningful changes in his life as compared to his prior violent past, and so on. And, apart from his bare statements, what is the evidence that would substantiate all of the foregoing?

He merely provided a “Certificate” showing that he participated in this program from September 2007 to March 2008. [6] [ 18 ] Having acknowledged responsibility for his past criminal acts, the father states that it is now in the best interests of the children to “know their family and to be parented by their father and not by strangers”. [7] He says, “I have a lot to offer my children”. [ 19 ] His evidence references the original trial in this matter and the conclusion reached by this court that his own mother’s plan for the children was not acceptable. [8] However, he fails to reflect on the fact that the central thrust of the trial judgment was about his own violence.

The reason that his mother’s plan was not accepted by the court was that she had repeatedly demonstrated an inability to protect the children from the father’s violence . [ 20 ] In his evidence in support of his leave motion, the father discloses some information about his present roommate and says that this person is a “good influence on me”.

He also states that he has the support of other family members, including his own mother, the person whose plan the court rejected in the original trial. [ 21 ] As I noted earlier, the essence of the father’s evidence is, “I am a changed person”. [ 22 ] What is most revealing, in the father’s own words, are the following statements: [9]

I was a good father; I spoiled my children and loved them. However, I was a lousy partner . . . It wasnever alleged that I hurt or did anything wrong to my children . . . I do not believe the children needto be protected from me. I am and have been a loving and caring parent to the children. . . . I amprepared to work with the CAS in showing them and the court just how I have changed and why havingme in the children’s lives would be in their best interests. 4: THE SOCIETY’S POSITION [23] The society argues that the father’s plan is fraught with unknowns.

He only recently completed his criminal sentence,and the “changed” person whom the father now claims to be has been in place for only three months, a period of time far too short for thecourt to conclude that he has undergone anything close to a permanent transformation. [24] In respect of the “addiction” issue, the court has little or no information. To what was the father addicted? How long-standing was this addiction? What are the risk factors associated with his particular addiction? What evidence is there that this issue isnow fully resolved? Are there any continuing risks?

What must the father do in order to ensure that he does not backslide in respect ofthis addiction? Is the father taking any follow-up treatment or counselling to address this addiction?

These are just some of thequestions that remain unanswered in the father’s material. [25] As to the father’s roommate, there was no evidence presented to the court from the roommate himself, no criminalrecords check, nor any society checks to see whether this person has had any prior involvement with any other children in a way thatmight raise red flags. [26] The newfound stability in his life about which the father talks is only three months old.

The father’s counsel argued that,since being released to a halfway house in February 2009, the father has remained out of trouble, this for a period now approaching twoyears. He urged the court to consider the father’s criminal-free life to be almost two years in length, rather than only three months. However, the court was provided with no information at all as to the level of supervision imposed on the father during the period of timethat he was required to remain in the halfway house or what restrictions he had on his freedom during this period of time before his fullrelease in October 2010.

In other words, if the father was so closely monitored before his full release, is it really appropriate tocharacterize this as a two-year period of freedom and stability? All that the court knows for certain is that the father has been entirelyrestriction-free only since October 2010. [27] In any event, even if the court were to accept the period from February 2009 to the present as a criminal-free period and,accordingly, an almost two-year time of stability, this would not be the longest period of time that that the father has historicallyremained out of trouble before falling back into a life of crime.

Following his criminal conviction for break-in and entry in June1998,[10] the father remained conviction-free until March 2001, a period of almost three years. And then, once again, he began toengage in further criminal activities,[11] until his last set of 13 convictions in November 2005.

Accordingly, based on the father’s ownhistory, the court is unable to draw any conclusions about the likelihood of the father’s remaining out of trouble in the future, even if it isaccepted that he has remained out of trouble since February 2009. 5: THE LAW [28] The statutory provisions in respect of someone other than a society seeking status review are set out in subsections65.1(4) and (5) of the Act, as follows [my emphasis]:

(4) Others may seek status review.— An application for review of a child’s status under this sectionmay 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 inclause 65.2(1)(a); (

d) the person to whom custody of the child was granted, if the child is subject to an order forcustody 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 yearsimmediately before the application; or (

f) a representative chosen by the child’s band or native community, if the child is an Indian or nativeperson.

(5) When leave to apply required.— Despite clause (4)(b), a parent of a child shall not make anapplication under subsection (4) without leave of the court if the child has, immediately before theapplication, received continuous care for at least two years from the same foster parent or from the sameperson under a custody order. [29] Because the children have remained in the same foster home for more than two years, the father must first obtain leave ofthe court in order to proceed with his status review application.

Although subsection 65.1(5) requires leave, the Act does not provideany guidance as to what factors or considerations the court must take into account in deciding whether to grant leave. [30] The oft-cited case of Catholic Children’s Aid Society of Metropolitan Toronto v. Beverley Ann F., ,[1988] O.J. No. 2950, 1988 Cars​well​Ont 2213 (Ont. Prov. Ct., Fam. Div.), is a decision of Provincial Judge Douglas A. Bean. JudgeBean postulated five criteria, which must be proved on a balance of probabilities before the court should give permission to proceed withthe status review application:

1. The court must be satisfied that the status review application for which leave is sought is being brought bona fides. 2. Leave ought not to be granted if the relief sought can be obtained otherwise than by reviewing the whole order itself. 3. There must be some unusual circumstances that justify the review, in spite of the child’s permanent status. 4. The court must be satisfied that the review would likely accomplish the purposes of the Act as set out in

section 1. 5. The applicant must establish a prima facie case. [31] These criteria have been approved of and followed in subsequent cases. See, for example, Dilico Anishinabek FamilyCare v. Marsha T., Alister C. and M’Chigeeng First Nation, 2010 ONCJ 105, [2010] 2 C.N.L.R. 136, [2010] O.J. No. 1186, 2010 Cars​-well​Ont 1737 (Ont. C.J.) and Children’s Aid Society of Toronto v. Michelle C. and Kenneth H., , 126 A.C.W.S. (3d)275, [2004] W.D.F.L. 87, [2003] O.J. No. 4017, 2003 Cars​well​Ont 3944 (Ont. C.J.). [32] Judge Bean’s criteria were also considered in an Ontario Superior Court of Justice decision of Justice D.

Roger Timms inDurham Children’s Aid Society v. J-A.S. and Diviney, , [2009] O.J. No. 5901, 2009 Cars​well​Ont 8777 (Ont. Fam.Ct.).

In that case, Justice Timms recognized that the five criteria “have in effect become the equivalent of statutory criteria”, but he thenwent on to say that he was “not convinced that Justice Bean’s five criteria should be given the force that they have attained in thejurisprudence, or even that they all merit examination in every case.” Nevertheless, Justice Timms did examine those criteria in the casebefore him, while continuing to express some doubt as to their appropriateness, particularly the fifth criterion, namely, that the partyseeking leave must demonstrate a prima facie case for relief. [33] At paragraph [47], Justice Timms stated: [47] The absence of any criteria in

section 65.1 in general, and in subsection 65.1(5) in particular,is odd to say the least. Obviously, that is why Justice Bean formulated his five criteria. With all respectto a former colleague, I think that it is sufficient to say that any party making an application for reviewof a Crown wardship order, which does not lie as of right, must satisfy the court, on a balance ofprobabilities, that such a review would meet the “paramount” and “other purposes”

definitions found insection 1 of the CFSA. Best interests are included therein. [34] In the present case, both counsel acknowledged the jurisprudential importance of the five criteria, but both also agreedthat the court must decide the leave motion taking into account what is in the best interests of the children. [35] I agree with Justice Timms that the five criteria postulated by Judge Bean have now attained a jurisprudential level ofsignificance. But I would characterize these criteria more as helpful guidelines than anything else. As I stated at paragraph 16 in thecase of Children’s Aid Society of Toronto v.

Michelle C. and Kenneth H., above, [my emphasis]: [16] . . . Justice Bean’s five principles are sensible and logical criteria to consider in decidingwhether to exercise my discretion to grant leave to Ms. Michelle C. to bring her status reviewapplication. However, I wish to make it clear that I am not fettering my discretion by holding thatmother must satisfy me on all five of these criteria, or that no other considerations ought to apply. . . . [36] Justice Timms expressed real doubt about the applicability of the fifth criterion — the need to establish a prima facie casefor relief.

However, in my respectful opinion, the court should not allow a status review application to go forward unless the personseeking leave is able to establish, at the very least, a meritorious case for relief. The purpose of imposing the hurdle of obtaining leavebefore allowing the substantive proceeding to be argued is to ensure that the substantive proceeding has a real chance of success. [37] In Re Ravelston Corp., 2007 ONCA 268, 31 C.B.R. (5th) 233, [2007] O.J. No. 1389, 2007 Cars​well​Ont 2114 (Ont.

C.A.),the Court of Appeal was faced with a motion for leave to appeal a decision under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. The court first observed that this Act provided no statutory test for when a court should grant leave. The court went on to state, atparagraphs 11 and 12 [my emphasis]: [11] . . . the case law is clear that one factor that is considered in all cases is whether the appeal isprima facie meritorious, . . . [12] . . . The inquiry into whether leave to appeal should be granted must, however, begin with someconsideration of the merits of the proposed appeal.

If the appeal cannot possibly succeed,there is no point in granting leave to appeal regardless of how many other factors mightsupport the granting of leave to appeal. See also Re Nortel Networks Corp., 2011 ONCA 10, [2011] O.J. No. 22, 2011 Cars​well​Ont 11 (Ont. C.A.), and Walden v. Walden, , (1996), 88 O.A.C. 139, 45 C.P.C. (3d) 262, [1996] O.J. No. 109, 1996 Cars​well​Ont 90 (Ont.

C.A.), where the Court ofAppeal made similar observations. [38] Although all of the foregoing were cases that dealt with the necessity of obtaining leave in order to proceed with anappeal, I would analogize the principle expressed in those cases with a case such as this, where the Child and Family Services Actimposes the requirement for leave in order to proceed with a status review application. I do so for two reasons. First, all of these caseshave one thing in common, namely, the absence of statutory criteria as to when leave ought to be granted.

And second, common sensewould dictate that the purpose of imposing a “leave hurdle” is to differentiate a leave case, from any other case where an appellant orapplicant may proceed as of right, in other words, to set the bar higher than it would otherwise be. [39] Turning to the five criteria, the society was prepared to acknowledge that the first two criteria were met. It was evenprepared to acknowledge that the third criterion, that the father’s release from prison, constituted an “unusual circumstance”.

But thesociety argued that criteria 4 and 5 had not been met. [40] I am sceptical that the father has met the first criterion. To act “bona fides” means to act in “good faith”. If the father’s

action in bringing the status review application is truly to become the sole custodial parent of the children, then I would accept that his application is brought in good faith. However, I have some real doubt about whether this is what the father is doing. I will return to this issue later in my reasons under the heading “Further Observations about the Father’s Plan” (Part 6, below). [12] [ 41 ] I agree with the society that the second criterion is met.

The father would not be able to obtain the relief he seeks without bringing the status review application. [ 42 ] I disagree with the society that the father meets the third criterion. In my view, his release from prison is not an “unusual circumstance” that would “justify” the court’s intrusion into a continuous and long-term foster placement, especially from the children’s perspective, given their youthful perception of the passage of time. Although the father’s release from prison may be a change in circumstance from what existed at the time of trial, it is not an “unusual” circumstance.

It was well known at the time of trial that the father would eventually be released from prison at, or around the time he was in fact released.

And, in any event, I do not agree that this particular circumstance, even if “unusual”, would justify the intrusion into the children’s long-term permanency planning. [ 43 ] I do agree with the society that the father is unable to satisfy the fourth and fifth criteria. [ 44 ] I will defer discussion of the fifth criterion at this stage, as it is my hope that, by the end of my reasons, the totality of my analysis will make it clear that the father is unable to establish that he has a meritorious case for relief. [ 45 ] I turn to the fourth criterion, which in essence is really about the best interests of the children, and whether the status review application, if allowed to proceed, would accomplish those best interests. [ 46 ]

Section 1 of the Act provides [my emphasis]: 1. Paramount purpose.—

(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children . In determining best interests, what better place to start than subsection 37(3) of the Act [13] [my emphasis]:

(3) Best interests of child.— Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant : 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and possible effect on the child of disruption of that continuity. 8.

The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child’s remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13.

Any other relevant circumstance. [ 47 ] In the circumstances of this case, I consider the most relevant factors to be paragraphs number 1, 5, 6, 7, 8, 10, 11 and 12. • Paragraph 37(3)¶1 — physical, mental and emotional needs The undisputed evidence is that the children are happy, contented and doing well in their foster home. They are fully integrated into the only family they have known for the past six years. They are very much loved by and attached to their foster parents.

On the other hand, the father has presented little or no evidence that he would be able to meet his children’s physical, mental and emotional needs. Instead, his evidence in this regard can be more objectively characterized as his “wish list”, his “promises” or his set of hopes. In essence, his evidence is little more than a collection of bare statements about how he would like to see the future unfold. • Paragraphs 37(3)¶5 and 37(3)¶6 — children’s relationship with their parents and family The father is the natural parent of the two children.

An adoption would indeed terminate any right on his part to future involvement in the children’s lives. [14] However, he has had no contact with his children for years, so that any so-called existing “relationship” is confined to biology alone. As for the children’s extended biological family members, they also have had no contact with the children for several years, so that it would be a stretch to characterize the children as having any relationship whatsoever with extended family members, biology aside. • Paragraphs 37(3)¶7 and 37(3)¶8 — children’s continuity of care and merits of competing plans

As I stated previously, the children have been in the same home for approximately six years. For these two children, that time represents almost all of their lives. For all practical purposes, these foster parents are the only real parents whom the children have known. [15] Their lives are settled and their schooling and relationships are in place and well established. The foster parents are intending to adopt both girls, the result of which would be that the stability that they have enjoyed until now would become permanent.

The importance of all of this must be weighed against what the father is proposing, namely, that he be given a “chance” to parent, by setting aside the adoption order and instituting a regime of access in the father’s favour. One can only imagine the emotional devastation the children would likely suffer were they to be dislodged from their current placement, thereby losing the opportunity for permanency with the people who have become their real family. • Paragraph 37(3)¶10 — delay One of the tragedies of this case is that the children have been in legal limbo for almost all of their lives.

Section 70 of the Act imposes strict timelines for the finalization of child protection cases, for the very reason that children need permanency planning without undue delay. Unfortunately, the appeal process in this case took two years to complete following the release of the trial decision.

I say this not to criticize either the appeal process or the appellate courts themselves. [16] But now, more than two years after those appellate routes have been exhausted, the on-the-ground reality for these children is that the father’s status review application would have the effect of further delaying the children’s permanency planning.

In my view, such a result would be clearly contrary to the best interests of these children. • Paragraphs 37(3)¶11 and 37(3)¶12 — risk and degree of harm to the children I have already discussed the risk of emotional harm to the children were they to be removed from their current foster home, the home where, if the adoption were to be finalized, they would be able to enjoy the benefits of a permanent family, where their familial futures would no longer be in doubt.

As to risk of emotional or physical harm to the children were they to be placed with the father, I return to the father’s statements, where he insisted that he was a “good” father, that he never did anything to “hurt” the children and that he was a “loving and caring parent to the children”. [17] Nowhere in his evidence in support of his leave motion does the father acknowledge that any of his criminal acts might have been harmful to his children. His only criticism of himself was that he was a “lousy partner”.

In order the better to understand the disconnect between the father’s view of his violent behaviour and the objective reality of that behaviour, it will be helpful to cite a number of extracts from the reasons for judgment at trial that deal with this very issue: □ At paragraph [31] [my emphasis]: [31] In March 2002, the mother met [the father]. Shortly afterwards, [the father] was convicted of assaulting his former girlfriend and, as a result, in November 2002, he was incarcerated.

He remained in jail until January 2003. [One month after Taishauna Ra.-Ro.’s birth] . . ., the mother made a complaint that [the father] had threatened to kill her. The society attended at her home in order to apprehend Taishauna Ra.-Ro., at which time [the father] became very aggressive with the society, all the while holding Taishauna Ra.-Ro. in his arms . □ At paragraph [39] [my emphasis]: [39] Detective Constable Julie Tint is currently assigned to the domestic violence division of the Toronto Police Services. She has had approximately 15 years of police experience.

She was the investigating officer in the culminating incident [which led to the 13 convictions in November 2005]. She testified that she spoke with the mother on a number of occasions and the mother appeared quite frightened of Mr. [the father], specifically, that [the father] might come after her for having co-operated with the police. She testified that the facts of this case were so serious that, of her more than 160 cases that proceeded to court that year, which could have been prosecuted by either

summary conviction or by indictment, this was the only one in which the Crown attorney chose to proceed by indictment, in the Superior Court of Justice . □ At paragraph [40] [my emphasis]: [40] . . . It is beyond dispute that [the father] is a very dangerous man. By only 21 years of age, he had accumulated a lengthy criminal record for violent offences. He has committed crimes while on bail and while on probation, as well as at other times. He has demonstrated by his conduct that he has a complete and utter disregard for court orders.

Of his many acts of violence against the mother, a number have occurred in the presence of his children . □ At paragraph [42] [my emphasis]: [42] [The mother] testified that [the father] committed acts of domestic violence against her “maybe twice a week”. On 17 November 2004, he held a knife to her throat and threatened her in the presence of one of her children . . . . □ At paragraph [47] [my emphasis]: [47] . . . [The mother] observed [the father] to threaten [the paternal grandmother] frequently and once saw him push [the paternal grandmother] into a bathroom door.

Even though much of this behaviour was occurring in the paternal grandmother’s home where the mother and the children were living, she testified at trial that she failed to report any of this because these incidents, although witnessed by the children, were not harmful to them. Why did she believe this? Because the children were not immediately adjacent to [the father] when he committed these acts of violence . . . . □ At paragraphs [50] and [51] [my emphasis]:

[50] . . . In April 2005, Taishauna Ra.-Ro. reacted badly when she saw [the foster mother] with a corkscrew. Again, in June 2005, Taishauna Ra.-Ro. became frightened and shielded her face when she was shown garden hose nozzles. In both cases, she had to be reassured that no harm would come to her. [The foster mother] also testified that, when the society provided a female volunteer driver to take Taishauna Ra.-Ro. to access visits with her parents, she was very comfortable.

However, when a male driver was provided, [the foster mother] had to constantly assure her that she would be fine and that no harm would come to her. [51] All of the foregoing is consistent with a child’s having lived in a household in which weapons, including knives and guns, were a regular part of the scenery and where the brandishing of such weapons was done by a male person, in this case, her father . . .

And yet, despite doubtless having read the reasons for judgment, despite being aware of all these findings, the father states that he was a “good” father, that he never did anything to “hurt” the children and that he was a “loving and caring parent to the children”. Perhaps more than anything else, these assertions, in the face of the court’s findings, reveal a disturbing lack of insight by the father, a deficiency that stands in stark contrast to his professed love for his children, as well his perception that, before he went to prison, he was a “good” father and a “loving and caring parent to the children”.

He not only has an extremely violent history, but he appears to have no understanding whatsoever how his violent behaviour affected his daughters. [ 48 ] It is abundantly clear from the analysis of the factors set out in subsection 37(3) that the best interests of the children require that they be given the opportunity to be adopted by the present foster family.

Moreover, even if the present foster family is unable, for any reason, not to move forward with the adoption, it is equally apparent that any plan involving the father in the foreseeable future would not only be contrary to the children’s best interests, but would pose a very real risk of harm to the children. [ 49 ] The father entirely fails to demonstrate that his status review application would meet the best interests of the children.

On that ground alone, I would conclude that the father has not established that there is any merit to his case, [18] and I would have dismissed his leave motion and his status review application. [19] However, in the particular circumstances of this case, I feel compelled to make some further observations about the father’s plan, in connection with my earlier-expressed scepticism about the bona fides of his status review application. 6: FURTHER OBSERVATIONS ABOUT THE FATHER’S PLAN [ 50 ] It is noteworthy that the father’s plan very much involves his own mother, the children’s paternal grandmother.

He says, “I have the assistance of my mother. . . . .She resides in Toronto and is on disability”. [ 51 ] The paternal grandmother was the person who appealed the trial decision to the Superior Court of Justice and then to the Ontario Court of Appeal when the trial court rejected her plan to have the children placed with her.

In order to understand why the court rejected that plan, once again I cite from the reasons for judgment at trial: • At paragraphs [46] and [47] [my emphasis]: [46] . . . the paternal grandmother herself witnessed a number of assaults by [the father] against her. [The mother] testified that the paternal grandmother and one of her sons once grabbed the telephone away from her when she attempted to call the police following a violent incident.

In an affidavit that she swore during the course of these proceedings, she deposed that she saw “handguns, switchblade knives, cocaine and weed while at [the paternal grandmother’s home].” . . . [47] . . . even when the paternal grandmother saw [the father] holding a knife to her throat, the paternal grandmother tried to “encourage me [the mother] to work things out rather than go to the police” . [The mother] observed [the father] to threaten [the paternal grandmother] frequently and once saw him push his mother into a bathroom door . • And at paragraph [86] [my emphasis]: [86] The paternal grandmother admitted that she has had great difficulty in managing [the father’s and his brother’s] behaviour .

She acknowledged that they were abusive to each other and that the abuse even included the use of weapons . She acknowledged that the society became involved in her family because there were, as she described it, “serious issues” in her home, including child management problems. It is revealing that the paternal grandmother, although acknowledging the constant fighting in her home, says that the younger children were not affected by it because they were not in the physical presence of the combatants at the time of the actual fighting.

By this statement, she displays her lack of understanding of the impact of violence on children who live in a home where violence is a regular feature. The impact of violence on children goes beyond whether or not the children are physically present during all of the incidents. The immediate victims of violence live in the same home where the children live. The violence becomes a part of the lives of those victims. It becomes a part of how they act, how they conduct themselves, how they interact with others.

And all the other persons who live in the home, the children included, cannot help but be affected by that violence-infused dynamic. [ 52 ] There were other incidents of violence that occurred in the grandmother’s home, incidents of which she was aware and

that she took no steps to report, even though she had been warned by the society that, if she permitted violence to occur in the home, thesociety would apprehend the children. [53] The culminating incident in January 2005[20] was the father’s use of a handgun and the discharge of that gun adjacent tothe paternal grandmother’s doorway entrance, an incident of which the paternal grandmother claimed at trial to have no knowledge, eventhough the police discovered weapons and ammunition in her own home.[21] [54] One of the more revealing pieces of testimony at trial that pertained to the grandmother and her ability to control her son’sbehaviour occurred when she was asked whether she thought that her son — given his violent history — would stay away from her if sheasked him to do so, to which she replied: “I don’t think he would listen to me”. [55] The inescapable conclusion from all of this is that the grandmother has the same lack of insight as her son into howviolence affects young children.

Like her son, the paternal grandmother seems to believe that, unless you physically strike a child, youare not harming her. Violent acts that are “merely” committed in the child’s presence, or in the same home as the child, do not harm thechild in any way. [56] What is disturbing about this motion for leave is that the grandmother may be trying to accomplish through the back doorwhat she was unable to achieve through the front door.

When she failed in her appeals, she then apparently assured her son[22] that shewould support him in his application for a status review of the Crown wardship order, which effectively seeks the same — or similar —outcome that the grandmother herself attempted to achieve at trial and in the subsequent appeals. [57] This comes very close to an abuse of process.[23] In McGowan v. City of Toronto, 2010 ONCA 362, 70 M.P.L.R. (4th)193, [2010] O.J. No. 2029, 2010 Cars​well​Ont 3224 (Ont. C.A.), the Court of Appeal stated: [3] . . .

An action can also be an abuse of process when the party seeks to challenge thecorrectness of a conviction without seeking to directly set it aside:[24] see Toronto (City) v. CanadianUnion of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63 , [2003] 3 S.C.R. 77 And in In Motion Investments Ltd. v. Theravitae Inc., 2010 ONCA 892, [2010] O.J. No. 5574, 2010 Cars​well​Ont 9695 (Ont.

C.A), theCourt of Appeal stated: “Abuse of process includes a misuse of the court's procedure in a way that would be manifestly unfair to a partyto the litigation” [my emphasis]. [58] Neither of these two Court of Appeal decisions were child protection cases. However, in my view, what the father isdoing in this case, with his mother in tow, could be interpreted as an attempt by the grandmother to challenge the correctness of theoriginal trial decision and the correctness of the subsequent appeals. In the case of In Motion Investments Ltd. v.

Theravitae Inc., theCourt of Appeal referred to the kinds of proceedings that would be “manifestly unfair to a party”. It is one thing for an adult party to beon the receiving end of manifest unfairness; it is another thing entirely for two small children to be so victimized, especially when theyhave absolutely no control over, or any say in the outcome.

In my opinion, whatever the rights of a party may be in a piece of civillitigation, it would be difficult to argue that those rights are any greater than the rights of two young children who, although not parties,have their very lives and their futures hinging on the outcome of the litigation, such as the case here. 7: CONCLUSION [59] As I stated earlier, there is no merit whatsoever in the father’s status review application.

In fact, on all the evidence, it isdifficult to conclude that his application is a product of anything other than wishful thinking on his part.[25] To allow the status reviewapplication to proceed past this point, thereby creating further delay for these children would be abusive in the extreme. And the victimsof that abuse would be the children themselves. These young girls, while fortunate to have been able to remain in the same home for thepast six years, have had no certainty whatsoever as to where they would be living next month, next year, or five years from now.

Tocompound that historical uncertainty with the insult of even further delay, would not only be contrary to their best interests but would runcounter to everything that the Act stands for, and counter to everything that child protection law in Ontario attempts to accomplish for thebenefit of children in this Province. [60] The father’s leave motion and the status review application are both dismissed.