R.D. v. CAS

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Abella, Borins and Armstrong, JJ.A.
• Citation: (2003), 178 O.A.C. 69 (CA)
• Date: 17 October 2003
• Subject Matter: GUARDIAN AND WARD

R.D. v. CAS (2003), 178 O.A.C. 69 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. OC.056

The Children's Aid Society of Owen Sound and the County of Grey (applicants/respondents in appeal) v. R.D. (respondent/appellant)

(C39153)

Indexed As: R.D. v. Children's Aid Society of Owen Sound and Grey County

Ontario Court of Appeal

Abella, Borins and Armstrong, JJ.A.

October 17, 2003.

Summary:

The Ontario Superior Court, in a judgment reported [2002] O.T.C. Uned. 871, dismissed a father's appeal of a Crown wardship order, having also dismissed his application to introduce fresh evidence on the appeal. In a subsequent judgment reported [2002] O.T.C. 992, the court awarded costs against the father. The father appealed.

The Ontario Court of Appeal dismissed the appeal notwithstanding the error in refusing to admit the fresh evidence. The result of the appeal would not have changed had the evidence been admitted. The court allowed the costs appeal. There was no reason to award costs against the father.

Guardian and Ward - Topic 945

Public trustee or guardian - Appeals to courts - Admission of "new evidence" - The Ontario Superior Court dismissed a father's appeal of a Crown wardship order - The child had been apprehended at birth - Wardship was ordered not because of perceived parenting incapabilities on the father's part, but because he was not the primary caregiver and the child could not be left alone with the mother - The court dismissed the father's application to introduce fresh evidence on the appeal - The evidence was that subsequent to the wardship order, the father and mother separated and the father wished to raise the child as a single parent - The Ontario Court of Appeal dismissed the father's appeal - The fresh evidence should have been admitted on the appeal - The evidence could not have been introduced at the wardship hearing, it was highly relevant and credible and was "potentially decisive" - However, the father had not seen the child since 2001 - At the time of the appeal, the child had been in foster care for 17 months and had bonded with the foster parents, who proposed to adopt him - The fresh evidence would not have changed the result - It was not in the child's best interests to return him to the father - The court set aside an award of costs against the father as being without reason.

Guardian and Ward - Topic 969

Public trustee or guardian - Practice - Costs - [See Guardian and Ward - Topic 945 ].

Cases Noticed:

Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, appld. [para. 13].

Counsel:

Clayton J. Conlan and John A. Kirby, for the respondents;

Catherine Bellinger, for the child;

Carol A. Allen, for the appellant.

This appeal was heard on May 13, 2003, before Abella, Borins and Armstrong, JJ.A., of the Ontario Court of Appeal.

On October 17, 2003, Abella, J.A., delivered the following judgment for the Court of Appeal.