Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 (1994)

Catholic Children's Aid Society of

Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165

C.M. Appellant v.

Catholic Children's Aid Society of Metropolitan

Toronto and the Official Guardian Respondents

Indexed as: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.)

File No.: 23644.

1993: December 7; 1994: May 5.

Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for ontario

Family law -- Appellate court status review under Child and Family Services Act -- Child taken into protection and ultimately made Crown ward with access to birth parent denied in anticipation of adoption -- Child's status subject to review under Act -- Whether fresh evidence admissible on status review -- Whether status review reconsideration of initial decision or assessment of current situation -- Interplay between Act's requiring preservation and integrity of family unit if possible and its requiring consideration of best interests of the child -- Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1, 37(2)(f), (g), (3), 57(1), (3), (9), 58(1)(a), (b), 59(2)(a), (b), (c), (d), 65(1)(a), (b), (c), (3)(a), (b), (c), (d), (e), (f), (g), 69(6), 70(1), (3)(a), (b).

Respondent society took S.M. into protection on several occasions and supervised her mother (C.M.) on the skills of parenting. S.M. has been in the respondent society's care from February 1989 when she was made a ward of the society, on consent, for four months. Throughout this wardship, the society continued to work with C.M. and facilitated regular visits with S.M. Nonetheless, the bonding -- the development of an interactive relationship and the attachment between S.M. and her birth mother -- remained minimal. In December 1989, after a second four-month wardship, the respondent society brought a status review application seeking an order of Crown wardship without access for the purposes of adoption. The appellant opposed the motion and the matter was dealt with sporadically throughout 1991. On February 17, 1992, the Ontario Court (Provincial Division) ordered that S.M. be returned to the appellant on the basis that court intervention was no longer necessary to protect the child. The judge considered C.M. capable of acquiring the skill to care for her daughter adequately. The respondent society obtained a stay of the order and unsuccessfully appealed to the Ontario Court (General Division). The Court of Appeal granted a stay of the order for return pending appeal and a motion for the introduction of fresh evidence. It allowed the appeal, set aside the order for the return of the child to the mother and ordered that the child be made a Crown ward, without access, for the purposes of adoption. The appellant birth mother, C.M., appealed this order. The main issue was the interpretation of Ontario's Child and Family Services Act, particularly with respect to status review applications. An incidental question concerned the introduction of fresh evidence on appeal. The new evidence sought to be admitted concerned the consistent and repeated assertions of the child that she regarded her foster family as her real family, that she did not want to see her birth mother and that attempts to implement access visits with the birth mother had become almost impossible because of the child's negative reactions -- emotional, psychological and physical going to her very well-being -- to them.

Held: The appeal should be dismissed.

(a) Fresh Evidence on Appeal

Section 43(8) of the Child Welfare Act deals with the admission of fresh evidence on appeal. The test formulated in Re Genereux and Catholic Children's Aid Society of Metropolitan Toronto with respect to similar remedial legislation, that the judge on appeal may exercise his or her discretion and hear further evidence so long as it is relevant to a consideration of the best interests of the child, probably did not intend to depart significantly from the four-part test in R. v. Palmer and R. v. Stolar. It is very attune to the philosophy and objectives of the Act and should be applied in cases determining the welfare of children where accurate and up-to-date information is essential. Although it might be more in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child ...

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