CAS v. C.M. (1994), 165 N.R. 161 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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C.M. (appellant) v. Catholic Children’s Aid Society of Metropolitan Toronto and the Official Guardian (respondents)
(23644)
Indexed As: Catholic Children’s Aid Society of Metropolitan Toronto v. C.M.
Supreme Court of Canada
La Forest, L’Heureux-Dubé, Sopinka,
Gonthier, Cory, McLachlin and Iacobucci, JJ.
May 5, 1994.
Summary:
Between February 1987 and August 1989 an infant child was periodically apprehended by the Society, then returned to the mother under a supervisory order. The Society provided assistance to the mother, but was not satisfied she was capable of properly caring for the child. In December 1989, the Society applied for a status review, seeking Society wardship without access, for the purposes of adoption. The mother opposed the application.
The Ontario Provincial Court ordered that the child be returned to the mother (Child and Family Services Act, s. 57(9)). The court stated that court intervention was no longer necessary, as the mother was capable of acquiring adequate parenting skills. The Society appealed.
The Ontario Court of Justice, General Division, dismissed the appeal. The Society appealed and applied to introduce fresh evidence on the appeal.
The Ontario Court of Appeal allowed the application to adduce fresh evidence and allowed the appeal. The court granted Society wardship without access. The mother appealed.
The Supreme Court of Canada dismissed the appeal. The court stated that applying the proper test on a status review hearing, the Society established the continued need of protection for the child and that it was in the child’s best interests to grant Society wardship.
Guardian and Ward – Topic 816
Public trustee or guardian – Appointment – Child in need of protection – Permanent appointment – A child born in September 1986 had been primarily cared for by foster parents since she was one month old – Bonding was between the child and the foster parents, not the birth mother – Attempts to assist the mother to achieve adequate parenting skills had been unsuccessful – The Children’s Aid Society sought a Society wardship order, with no access, for the purpose of adoption by the foster parents – The child did not wish to see the mother – There was no evidence that the mother acquired the skills necessary to properly care for the child – The Supreme Court of Canada held that the Court of Appeal rightly concluded that continued intervention was required to protect the child’s physical, emotional and psychological well-being – Additionally, it was in the best interests of the child to be made a Society ward, with no access to the mother, with a view to her adoption by the foster parents – See paragraphs 42 to 46.
Guardian and Ward – Topic 820.1
Public trustee or guardian – Appointment – Review of temporary appointment or supervisory order – The Supreme Court of Canada stated that the function of a court on a status review hearing under the Child and Family Services Act was not to retry the original need for protection order – The status review hearing was a two-fold examination – First, it must be determined whether the child continued to need protection – Secondly, the best interests of the child were to be determined by balancing the considerations in s. 37(3) of the Act, as well as the criteria in s. 65(3) – The court rejected the submission that the best interests of the child were to be considered only if it was first established that the child continued to be in need of protection – See paragraphs 24 to 41.
Guardian and Ward – Topic 820.1
Public trustee or guardian – Appointment – Review of temporary appointment or supervisory order – [See
Guardian and Ward – Topic 816
].
Guardian and Ward – Topic 945
Public trustee or guardian – Appeals to courts – Admission of “new evidence” – The mother of a child subject to a Society wardship order appealed – The Supreme Court of Canada admitted “fresh evidence” (events occurring since the hearing before the Ontario Court of Appeal) on the appeal and stated that the Court of Appeal was likewise entitled to do so – The court stated that s. 69(6) of the Child and Family Services Act provided that “the court may receive further evidence relating to events after the appealed decision” and s. 62(3) of the Supreme Court Act gave the court a discretion to admit fresh evidence – The court stated that admission of fresh evidence in child protection proceedings was governed by more flexible rules than provided for in R. v. Palmer and R. v. Nielsen and Stolar – The court stated that “the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance” – See paragraphs 17 to 23.
Practice – Topic 9031
Appeals – Evidence on appeal – Admission of “new evidence” – [See
Guardian and Ward – Topic 945
].
Practice – Topic 9095
Appeals – Supreme Court of Canada – Hearing of fresh evidence – [See
Guardian and Ward – Topic 945
].
Cases Noticed:
Stein Estate et al. v. Ship Kathy K et al., [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 8].
R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (Eng.); 17 C.R.(3d) 34 (Fr.), refd to. [para. 17].
R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46; 62 C.R.(3d) 313; [1988] 3 W.W.R. 193, refd to. [para. 17].
R. v. Price (S.L.), [1993] 3 S.C.R. 633; 157 N.R. 378; 145 A.R. 231; 55 W.A.C. 231, refd to. [para. 17].
Nova Scotia (Minister of Community Services) v. S.M.S. et al. (1992), 112 N.S.R.(2d) 258; 307 A.P.R. 258; 41 R.F.L.(3d) 321 (C.A.), refd to. [para. 17].
V.G. v. Catholic Children’s Aid Society of Metropolitan Toronto (1985), 9 O.A.C. 398; 53 O.R.(2d) 163 (C.A.), refd to. [para. 18].
Children’s Aid Society of Renfrew County v. L.P.W. et al. (1989), 32 O.A.C. 394 (C.A.), refd to. [para. 18].
M.M. v. B.M. (1982), 37 O.R.(2d) 716 (C.A.), refd to. [para. 18].
Sheena B., Re (1992), 58 O.A.C. 93; 43 R.F.L.(3d) 36 (C.A.), refd to. [para. 28].
Woods v. Racine and Racine, [1983] 2 S.C.R. 173; 48 N.R. 362; 24 Man.R.(2d) 314, refd to. [para. 28].
King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275; [1985] 3 W.W.R. 1; 44 R.F.L.(2d) 113; 16 D.L.R.(4th) 576, refd to. [para. 28].
King v. Low – see King v. Mr. and Mrs. B.
Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 28].
Martin v. Duffell, [1950] S.C.R. 737, refd to. [para. 28].
Children’s Aid Society of Stormont, Dundas and Glengarry (Municipalities) v. K.L. (1988), 12 R.F.L.(3d) 76 (Ont. Dist. Ct.), refd to. [para. 29].
Children’s Aid Society of Ottawa (City) v. G.M. (1978), 3 R.F.L.(2d) 226 (Ont. Div. Ct.), refd to. [para. 33].
Catholic Children’s Aid Society of Metropolitan Toronto v. C.G., [1986] O.J. No. 1746 (Prov. Ct.), refd to. [para. 33].
Children’s Aid Society of Halifax v. M.A. (1986), 76 N.S.R.(2d) 18; 189 A.P.R. 18 (Fam. Ct.), refd to. [para. 33].
Children’s Aid Society of Winnipeg (City) v. F., [1975] 2 W.W.R. 27 (Man. C.A.), refd to. [para. 33].
McGrath, Re, [1893] 1 Ch. 143 (C.A.), refd to. [para. 38].
Moores v. Feldstein (1973), 12 R.F.L. 273 (Ont. C.A.), refd to. [para. 38].
Catholic Children’s Aid Society of Metropolitan Toronto (Municipality) v. K.H. (1987), 6 R.F.L.(3d) 1 (Ont. Fam. Ct.), revd. (1988), 21 R.F.L.(3d) 115 (Dist. Ct.), affd. (1989), 23 R.F.L.(3d) 300 (C.A.), refd to. [para. 39].
C.G. v. J.H. – see Catholic Children’s Aid Society of Metropolitan Toronto (Municipality) v. K.H.
A.G. v. Catholic Children’s Aid Society of Metropolitan Toronto (Municipality), [1990] W.D.F.L. 1222 (Ont. Gen. Div.), refd to. [para. 39].
New Brunswick (Minister of Social Services) v. G.C.C., [1988] 1 S.C.R. 1073; 85 N.R. 10; 85 N.B.R.(2d) 252; 217 A.P.R. 252, refd to. [para. 39].
New Brunswick (Minister of Health and Community Services) v. S.G. and S.A. (1989), 100 N.B.R.(2d) 357; 252 A.P.R. 357 (C.A.), refd to. [para. 41].
Children’s Aid Society of Halifax v. Y.L. and R.W. (1993), 122 N.S.R.(2d) 352; 338 A.P.R. 352 (C.A.), refd to. [para. 41].
Child and Family Services of Winnipeg v. A.C.F. et al. (1992), 81 Man.R.(2d) 149; 30 W.A.C. 149; 42 R.F.L.(3d) 337 (C.A.), refd to. [para. 41].
Tearoe et al. v. Sawan (1993), 32 B.C.A.C. 133; 53 W.A.C. 133 (C.A.), refd to. [para. 41].
Statutes Noticed:
Child and Family Services Act, R.S.O 1990, c. C-11, sect. 1(a), sect. 1(b), sect. 1(c), sect. 1(d)(i) [para. 5]; sect. 37(2) [para. 26]; sect. 37(2)(f), sect. 37(2)(g), sect. 37(3) [para. 5]; sect. 40 [para. 26]; sect. 57 [para. 6]; sect. 57(1), sect. 57(3), sect. 57(9), sect. 58(1), sect. 59(2) [para. 5]; sect. 64 [para. 7]; sect. 64(1) [para. 27]; sect. 65 [para. 9]; sect. 65(1), sect. 65(3) [para. 5]; sect. 69(6) [para. 17]; sect. 70 [para. 12]; sect. 70(1), sect. 70(3) [para. 5].
Child and Family Services Act, S.O. 1984, c. 55, sect. 53(9), sect. 61(3) [para. 6].
Child Welfare Act, R.S.O. 1980, c. 66, sect. 43(8) [para. 18].
Children and Family Services Act, S.N.S. 1990, c. 5, sect. 49(5) [para. 17].
Rules of Court (Ont.), Ontario Provincial Court (Family Division) Rules, R.R.O. 1980, Reg. 810, rule 70 [para. 6].
Supreme Court Act, R.S.C. 1985, c. S-26, sect. 62(3) [para. 17].
Authors and Works Noticed:
Barnhorst, Richard F., Child Protection Legislation: Recent Canadian Reform, in Children’s Rights in the Practice of Family Law (Barbara Landau, ed.) (1986), p. 255 [para. 25].
Coleman, Phyllis, A Proposal for Terminating Parental Rights: Spare the Parent, Spoil the Child (1993), 7 Am. J. Fam. L. 123, p. 133 [para. 37].
Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 25].
MacKinnon, Jennifer, Best Interests of the Child in Protection Hearings: A Move Away From Parental Rights? (1980), 14 R.F.L.(2d) 119, p. 124 [para. 33].
McCall, M.L., An Analysis of Responsibilities in Child Welfare Systems (1990), 8 Can. J. Fam. L. 345, generally [para. 28].
Wilkins, H.D., Status Review Applications, Canadian Bar Association (Ontario), Continuing Legal Education Program on The Child and Family Services Act (March 22, 1986), generally [para. 31].
Counsel:
Ian R. Mang and T. Michele O’Connor, for the appellant;
Marvin M. Berstein and Allan S. Maclure, for the respondent, Catholic Children’s Aid Society of Metropolitan Toronto;
Elaine Freedman, Q.C., and Catherine Bellinger, for the respondent, the Official Guardian.
Solicitors of Record:
Mang, Steinberg & Skultety, Toronto, Ont., for the appellant;
Catholic Children’s Aid Society of Metropolitan Toronto, for the respondent, Children’s Aid Society of Metropolitan Toronto;
Office of the Official Guardian, Toronto, Ont., for the respondent, the Official Guardian.
This appeal was heard on December 7, 1993, before La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada.
On May 5, 1994, L’Heureux-Dubé, J., delivered the following judgment in both official languages for the Supreme Court of Canada.
