Prospective Adoptive Parents v. Mugford, [1970] SCR 261

Supreme Court of Canada

Prospective Adoptive Parents v. Mugford, [1970] S.C.R. 261

Date: 1969-11-17

The Prospective Adoptive Parents and The Children’s Aid Society of Ottawa Appellants;

and

Sylvia Elaine Mugford Respondent.

1969: November 6, 7; 1969: November 17.

Present: Cartwright C.J. and Fauteux, Abbott, Mart-land, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Infants—Crown ward—Application by natural mother for custody of child—Dismissal of application by Juvenile and Family Court Judge based upon misapprehension as to meaning of s. 35(3) of The Child Welfare Act, 1965 (Ont.), c. 14.

APPEAL from a judgment of the Court of Appeal for Ontario[1], dismissing an appeal by the Children’s Aid Society of Ottawa from an order pronounced by Honeywell Co.Ct.J., who allowed an appeal by the respondent natural

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mother from an order dismissing respondent’s application for custody of a child. Appeal dismissed.

P.J. Brunner, for the appellants, the Prospective Adoptive Parents.

J.B. Chadwick, for the appellant, the Children’s Aid Society of Ottawa.

J.F. Foreman, for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—This is an appeal by the prospective adoptive parents of the infant, David John Mugford, and the Children’s Aid Society of Ottawa from the unanimous decision of the Court of Appeal for Ontario¹, dismissing an appeal by the Children’s Aid Society of Ottawa from an order pronounced by His Honour, Judge Honeywell, who allowed the respondent’s appeal from an order made by His Honour, Judge Good, dismissing the respondent’s application for production and delivery to her of the said infant.

In my opinion, the judgment of the Court of Appeal ought not to be disturbed. While recognizing that the learned Juvenile and Family Court Judge who first heard the respondent’s application had the advantage of seeing and hearing the witnesses before reaching his conclusion, it is my opinion that his conclusions were based upon a misapprehension as to the meaning of s. 35(3) of The Child Welfare Act, 1965 (Ont.), c. 14, as applied to the circumstances of this case, and that that subsection was properly applied by Judge Honeywell and by the Court of Appeal.

I would dismiss the appeal. The infant should be restored to the custody of the respondent, as directed by the order of His Honour, Judge Honeywell, within fifteen days from the date of this judgment. The respondent should have the costs of this appeal as against the appellant, the Children’s Aid Society of Ottawa. There should be no costs payable by or to the other appellants.

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Appeal dismissed with costs.

Solicitors for the appellants—The Prospective Adoptive Parents: Gowling, MacTavish, Osborne & Henderson, Ottawa.

Solicitors for the appellant—The Children’s Aid Society of Ottawa: Burke-Robertson, Urie, Butler, Weller & Chadwick, Ottawa.

Solicitors for the respondent: Jeffery, Brown, Beattie & Gunn, London.