Children's Aid Society of Simcoe County v. J.D., 2010 ONSC 3542

• Judge: McCombs, Molloy and Hambly, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: Thursday June 17, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONSC 3542;(2010), 265 O.A.C. 197 (DC)

CAS v. J.D. (2010), 265 O.A.C. 197 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. JL.047

The Children's Aid Society of Simcoe County (applicant/respondent in appeal) v. J.D. (respondent/appellant)

(240/10; 2010 ONSC 3542)

Indexed As: Children's Aid Society of Simcoe County v. J.D.

Court of Ontario

Superior Court of Justice

Divisional Court

McCombs, Molloy and Hambly, JJ.

June 17, 2010.

Summary:

The appellant appealed from a decision which granted Crown wardship orders without access for the appellant's two youngest children.

The Ontario Divisional Court dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - [See Guardian and Ward - Topic 819].

Guardian and Ward - Topic 819

Public trustee or guardian - Appointment - Child or adult in need of protection - Evidence - A mother appealed from a decision which granted Crown wardship orders without access for her two youngest children - The mother argued that the trial judge erred by not permitting her to testify about her intention to control her drinking in the future by taking a drug called antabuse - The Ontario Divisional Court rejected the argument - What the trial judge said was that the mother was not qualified as an expert to testify about the medical or chemical effects of this substance - The mother had the opportunity to bring an expert witness but did not do so - The trial judge applied the correct legal test in refusing to allow the mother to give evidence on her proposed treatment - See paragraphs 13 to 15.

Guardian and Ward - Topic 905

Public trustee or guardian - The hearing - In camera hearings - [See Guardian and Ward - Topic 973].

Guardian and Ward - Topic 973

Public trustee or guardian - Practice - Transcripts or recordings - A mother appealed from a decision which granted Crown wardship orders without access for her two youngest children - The mother argued that the trial judge erred in refusing to allow her to tape record the trial proceedings - The Ontario Divisional Court rejected the argument - The Child and Family Services Act (CFSA) was clear that hearings were to held in private, unless the court ordered otherwise - There was also a prohibition on identifying a child or parent in a proceeding under the CFSA - The trial judge was concerned that if the proceedings were to be recorded and then information were to be released either to the children or to another member of the public, the potential harm would far outweigh any benefit the mother would gain from taping the proceedings - The trial judge's decision was based on legitimate privacy concerns - He applied the correct legal test and undertook the requisite balancing of the children's and parties' privacy interests with those of the mother - There was a solid evidentiary foundation for his conclusion - In any event, his decision not to permit the mother to tape the proceedings did not alter the outcome of the trial in any way - See paragraphs 7 to 12.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 18].

Children's Aid Society of Toronto v. K.K. et al. (2006), 208 O.A.C. 5 (C.A.), refd to. [para. 19].

Counsel:

David M. Winnitoy, for the respondent in appeal, The Children's Aid Society of Simcoe County;

Brian Bond, for the appellant;

J. Tremain and Lori Aylwin, for the Office of the Childen's Lawyer.

This appeal was heard on June 17, 2010, at Toronto, Ontario, before McCombs, Molloy and Hambly, JJ., of the Ontario Divisional Court. The following judgment of the Divisional Court was delivered orally by Molloy, J., on June 17, 2010, and was released on July 12, 2010.