Catholic Children’s Aid Society of Toronto v. R.E.: Not Every Breach Demands a New Trial – The Court of Appeal Redraws the Lines

In Catholic CAS of Toronto v. R.E., 2025 ONCA 623, the Court of Appeal confronted a familiar but often misunderstood tension in child protection litigation: what happens when a procedural fairness breach affects only one piece of a complex trial outcome? Does it unravel the entire order? Or may the appellate court cure the error directly?

In this thoughtful and pragmatic decision, the Court of Appeal confirms that procedural fairness breaches do not automatically mandate a new trial, particularly where the record allows the appellate court to resolve the discrete issue itself. And it underscores—again—the legal consequences of access holder status for parents of children in extended Children’s’ Aid care.

The Road to the Court of Appeal

The child, now five years old, was taken into care in 2021. The trial judge ultimately ordered extended Catholic Children’s Aid Society of Toronto (the “Society”) care, authorizing the Society to plan for adoption, while providing the mother with at least monthly access. Crucially, the trial judge designated the mother an access recipient, rather than an access holder. That designation matters: only access holders can apply for openness orders under s. 196(1) Child, Youth and Family Services Act (the “CYFSA”) during the adoption process (para. 15). “This means that, if the mother is only an access recipient and not an access holder, she would not be allowed to apply to have access rights to see the child during the adoption process. Once the child is adopted, only the Society or the child could make such an application.”

On appeal to the Superior Court, the judge upheld extended Society care but found that the mother had been denied procedural fairness in the determination of her access status: the father—not the Society—raised for the first time in closing submissions that the mother should be demoted to an access recipient (para. 23). She had no notice and no opportunity to address the issue through evidence or cross-examination (para. 24). The appeal judge corrected the result and made the mother an access holder (para. 25).

The mother then appealed again—this time arguing that the fairness breach required a new trial on all issues, including whether extended Society care should have been ordered at all (paras. 3, 26).

Fresh Evidence: The Barendregt Lens

Both parties sought to introduce fresh evidence regarding the mother’s more recent circumstances, supervised access, and interactions with the father (paras. 7–8). Applying s. 121(6) CYFSA and the flexible framework affirmed in Barendregt v. Grebliunas, 2022 SCC 22, the Court of Appeal admitted the evidence, emphasizing that appellate courts in child protection matters require “more context” where best interests are at stake (paras. 9–10).

While helpful for context, the evidence did not undermine the trial judge’s core findings about the mother’s ongoing instability, cognitive and mental health challenges, and the volatility of her relationship with the father, including recent criminal charges involving both parties (paras. 37–38).

The Central Issue: Does a Procedural Fairness Breach Require a New Trial?

The Court of Appeal decisively rejected the mother’s argument that a fairness breach automatically requires a full retrial. The governing statute—s. 134(1) Courts of Justice Act—provides a suite of remedial tools: the appellate court may order a new trial, but it may also make the order that should have been made or any other just order (para. 28).

Why No New Trial Was Required

1. The breach was discrete, not systemic.
   It related only to the mother’s access status—not to the merits of extended Society care or the overall best-interests analysis (paras. 29–31).
2. The evidentiary record was complete.
   The appeal judge had everything she needed to decide the access holder question directly (para. 30).
3. The Society supported the mother being an access holder.
   This further reinforced that the issue could be corrected without a retrial (paras. 23, 25, 30).
4. This was not a case of tribunal-wide taint such as apprehension of bias.
   Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82—relied on by the mother—involved a defect tainting the entire proceeding. That was not the case here (para. 31).
5. The mother herself conceded she was not seeking a new trial on access if the broader argument failed.
   This narrowed the Court’s remedial focus (para. 33).

The Court therefore upheld the Superior Court’s limited intervention: correcting the access status without disturbing the trial’s outcome on extended Society care (paras. 34, 36).

Why the Mother Became an Access Holder

The appeal judge—and the Court of Appeal—recognized that access holder status is not automatic. Courts weigh the risk that an access holder might undermine the child’s adoption prospects, considering attributes such as aggression, lack of support for caregivers, dishonesty, unreasonable litigiousness, mental health or substance issues, and instability (para. 21).

Here, the evidence showed:

• The mother had worked to cooperate with the Society, signed agreed facts, and engaged with supports (para. 25).
• The mother did not demonstrate the kind of disruptive, undermining, or chaotic behaviour that would jeopardize an adoptive placement (para. 25).
• There was a strong, positive bond between mother and child (para. 25).

The appeal judge therefore found it in the child’s best interests for the mother to be an access holder. The Court of Appeal endorsed this conclusion (paras. 25, 30).

Why Extended Society Care Remained Appropriate

The mother’s challenge to extended Society care failed for reasons familiar in child protection jurisprudence:

• Appellate courts must defer to trial findings of fact and mixed fact and law absent palpable and overriding error (paras. 11–13, 36).
• Despite the mother’s consistent efforts and loving bond, she continued to face persistent barriers to providing a safe, stable home: cognitive difficulties, mental health concerns, drug use, unstable housing and employment, and a volatile relationship with the father (para. 38).
• The fresh evidence did not show a material improvement in these areas (para. 37).
• Delay had already far exceeded CYFSA timelines for children under six (para. 39).

Accordingly, continued extended Society care remained in the child’s best interests (paras. 36–39).

Key Takeaways for Child Protection Practitioners

1. Fairness errors must be carefully calibrated to the remedy.

Not every breach requires a full new trial—especially where the error is narrow and the appellate court has a complete record (paras. 28–31).

2. Access holder status is a high-stakes designation.

It governs who may seek openness orders during the adoption process (para. 15). Practitioners should ensure all parties’ positions on access status are clearly identified from the outset to avoid fairness issues like those in this case.

3. Fresh evidence remains broadly admissible in child protection appeals.

Consistent with Barendregt, appellate courts will admit post-decision evidence that illuminates best interests—even if it does not alter the underlying outcome (paras. 7–10, 37).

4. Delay is itself a best-interests harm.

The Court was openly concerned about the statutory delay in this case (para. 39). Counsel should be vigilant about time limits in extended Society care matters.

5. Strong parental bonds do not displace ongoing safety and stability concerns.

The Court acknowledged the deep affection between mother and child but emphasized the persistent risks preventing reunification (para. 38).

Conclusion

Catholic CAS v. R.E. is a measured and practical articulation of appellate remedial discretion in child protection cases. It confirms that procedural fairness matters—but so does proportionality. Where a discrete error can be corrected without undermining the integrity of the trial’s broader findings, appellate courts may and should do so.

The decision also reinforces the essential nature of access holder status, the flexible approach to fresh evidence in best-interests cases, and the continued emphasis on permanency and timeliness for children in care.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.