COURT FILE NO.: 334/03 (Toronto)

69744/03 (Newmarket)

DATE: 20040621

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, JENNINGS AND SWINTON JJ.

B E T W E E N:

FAMILY, YOUTH and CHILD SERVICES OF MUSKOKA

Applicant (Respondent)

• and -

R.S., J.G., S.S. and A.S.

Respondents (Appellants)

Timothy Graf, for R.S.

Michael E. Thurston, for S.S. and A.S.

Manjusha Pawagi, for the Office of the Children’s Lawyer

Debora Batstone, for the Children’s Aid Society

HEARD: June 21, 2004

O’DRISCOLL J.: (Orally)

NATURE OF THE PROCEEDINGS

1This litigation involves four children: (a) Sb. – d.o.b.: […], 1991, (b) B. - d.o.b.: […], 1993, (c) Sa. – d.o.b.: […], 1995 and (d) M. – d.o.b.: […], 1999.

2J.G., some 27 years of age, is the biological mother of the four children and R.S., now 36 years of age, is their biological father. S.S., now some 64 years of age, and his wife, A.S., now some 57 years of age, are the paternal grandparents of the four children.

3This appeal comes to this Court pursuant to the provisions of s.21.8(1), and its Schedule and s.21.9.1 and s.134 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, and Rule 38(12) of the Family Law Rules.

4On August 16, 2001, the children were apprehended from the care of their mother, J.G. At the time of the apprehension, the father of the children, R.S., was incarcerated for an incident of domestic violence. The children were placed in the care of their grandparents, S.S. and A.S. On August 31, 2001, a temporary order was made by the Court confirming placement. On November 1, 2001, the children were found to be children in need of protection, pursuant to the Child and Family Services Act, R.S.O. 1990, c.C.43, as amended (CFSA) s.37(2)(a)(i) and (ii); s.37(2)(b)(i) and (ii); s.37(2)(d) and s.37(2)(g). On November 1, 2001, a final order of disposition was made placing the children with the grandparents, S.S. and A.S., for a period of three months, subject to the supervision of the Respondent Children’s Aid Society, (CAS).

5At the request of the grandparents, due to a self reported inability to care for the children, due to their high needs, the children were brought into CAS care on January 7, 2002. On February 28, 2002, on a Status Review Application, the Court ordered a period of three months CAS wardship. On August 30, 2002, on a Status Review Application, the Court ordered a further period of three months CAS wardship. In November, 2002, the Society brought a further Status Review application seeking Crown wardship with an order of “no access” to any party for the purpose of placing the children for adoption.

6With all parties being represented by counsel, including the children who were represented by a counsel for the Office of the Children’s Lawyer, the hearing took place before Perkins J. He heard the matter over eight (8) days between October 20 and October 30, 2003. He reserved judgment. On November 28, 2003, the trial judge granted an order for Crown Wardship, without access to any party, for all four children stating his reasons over some thirteen (13) pages.

7On this appeal, the father and the grandparents appeal from the decision of Perkins J. and ask that: (a) the appeal be allowed, the judgment set aside and in its place substitute an order either: (1) placing the four children in the joint care of the father and grandparents subject to supervision by the CAS or, (2) ordering a new trial.

8At trial, counsel for the Office of the Children’s Lawyer supported the position of the father and the grandparents. A different counsel on behalf of the same office now takes the position set out in paragraphs 5 and 6 of her factum:

“5. Counsel for the children submits that with respect to Crown wardship, no reversible error was made by the learned trial judge at first instance.

6. However, with respect to the issue of access, counsel for the children submits that the trial judge erred in refusing access. Counsel for the children requests that the Judgment “without access” be set aside and that a Judgment “with access” be made. In the alternative, counsel for the children requests that the Judgment be made silent as to access.”

9Although the access issue is now brought forward and access is sought by counsel for the Office of the Children’s Lawyer and as a fall-back position by the appellants, at trial, access was never sought by anyone. It is not set out in any notice of appeal or any notice of cross-appeal. However, notwithstanding that, we permitted counsel for the Office of the Children’s lawyer to make submissions on the subject of access.

10Before us, counsel for the CAS seeks an order dismissing the appeal. However, should the appeal be allowed in whole or in part, counsel for the CAS seeks a reasonable opportunity to file affidavit evidence, pursuant to s.69(6) of the CFSA.

11At the time of the trial, the children had been in the care of the Society for a period of nineteen (19) months and out of the care of their parents for a period of twenty-seven (27) months. At the time of this appeal, the children have been in care for a period of thirty (30) months and out of the care of their parents for a period of thirty-four (34) months.

THE TRIAL JUDGE’S REASONS

12Perkins J. summed up the issues in paragraph [3] of his reasons:

3“The central issue is whether the father and grandparents, together, have the skills, motivation and energy necessary to parent these children, the oldest and youngest of whom have significant special needs. The parents have a history of alcoholism and neglect of the children. The grandparents once had the primary care of the children but turned them over to the CAS for placement because they were too much to manage.”

13The trial judge pointed out in paragraph [2] of his reasons:

2“The mother and father are no longer living together. They came into the trial with separate plans of care, each one seeking that the four children be placed with them, under supervision if need be. The grandparents supported the father’s plan and put forward their own claim for access, just in case. Near the end of the trial, the mother withdrew her separate plan and all the respondents together urged me to place the children in the joint custody of the father and grandparents, again under supervision if need be.”

14At paragraph [21] of his reasons, the trial judge noted that, pursuant to s.50(b) of the Act, he had admitted into evidence the typed reports and summaries, compiled from the case notes of a CAS worker, namely, Ms. Cate Schenk, who was, because of illness, unable to attend at the trial to testify. We find no error in the trial judge’s ruling regarding s.50(b) of the Act.

15From paragraphs [22] to [41] of his reasons, the trial judge reviews the evidence that had been called at the trial. Counsel for the three appellants submit that the trial judge’s reasons show that he misconstrued various pieces of evidence. We agree with what is set out on this topic in the factum of counsel for the CAS and the factum of counsel for the Office of the Children’s Lawyer. Assuming that to be so, the evidence and the facts involved were not material and certainly not crucial to the issues in this case.

16At paragraph [42] of his reasons the trial judge commences::

“[42] Suddenly, after the evidence for the CAS, the father and the grandparents was in, the CAS plan of Crown wardship for purposes of adoption was met with a new, joint plan for care by the father and grandparents together. No one called reply evidence. Much of the evidence dealt with the mother as a potential primary parent, or the father as a potential sole parent. It is nevertheless not difficult to assess the joint plan against the evidence.

43The father is an untreated alcohol abuser in denial. The August fight was the latest in a long series of alcohol related incidents. His denial is supported by the grandfather. The grandmother is not a factor on this issue. The mother, also an untreated alcohol abuser, joined in the denial and supports it. When he was first released from jail, the father articulated some of the need he had to get control over his life. It may be that there are or were issues behind the alcohol addiction. We will never know, though some day the father might. Certainly there are concerns about depression as an issue for the father, as well as the torch he continues to carry for the mother. Right now he is in no shape to deal with the issue of separation from the mother (which was clearly still a raw wound as recently as August), alcohol, the need to find work and the need to provide day to day care for four children, as well as acquainting himself with and understanding their special needs and seeking out the resources to try to address them. He acknowledged in his evidence that he needed to go to counseling more and get his life in order. What has stopped him for the last 22 months? Why would I think that he is any more ready now, or will ever be even six months or a year from now, than when he had just got out of jail and actively sought out help? When after all these years of being a parent is he going to begin to learn about and understand the special needs of the children?

44Nor are the grandparents the answer. The grandfather has never shown the inclination to be the steadying home influence that is needed. He continues to work in construction to support the family. The grandmother gave the children up to the CAS because he would not support her efforts. The grandmother herself is not able to bear the burden.

45The combination of the three adults is likewise not enough. Even the family friend called by the grandparents thinks that the arrangement would only work if there was an outside agency ready to swoop down the moment there was trouble – and clearly she thought (and I agree) there was likely to be trouble. The proposed arrangement of joint custody of the children is not really a new one. The parents have lived with the grandparents before. When the parents were living on their own, the grandparents have always stood behind them, bailing them out from time to time and offering weekend care for the children. The arrangement did not work then to provide what the children need and there is no reason to think that it will be any better now.

46And I must not forget the mother, even though she is not put forward as a caregiver for the children. She does, however, want to be involved in their lives and still be the mother. She is engaged to a man the CAS lawyer described, I think fairly, as a violent time bomb. She has taken no more initiative than the father to acquaint herself with the children’s issues. She has not addressed the underlying problem of her substance abuse. The father remains ever hopeful that she will come around and return. The prospect of resumed chaos, in the form of another reunion marked by arguments and another separation, looms large.

47In the meantime, the children cannot wait. They have been in limbo for 22 months, are acutely aware of the court case involving them and are expressing both the love they feel for their family and the need they have for safety, stability, structure and support in dealing with their own individual needs, which are considerable. There is no doubt that the children love their parents and grandparents, and that they love their children. But even the children are showing some recognition that they need more than their parents or grandparents can offer them.

48Adoption is not guaranteed, of course. The children will be hard to place, given their ages, number and special needs. It is possible that they may be in foster care for a long time to come. It is possible that no adoption placement will ever be found for some or even all of them. It is acknowledged that in placing the children for adoption in two or more homes, no legal means exists for the CAS to guarantee sibling contact. These are all risks of emotional loss or harm to the children. Yet I find that entrusting any or all of the four adults in this case with the care of the children poses a greater probability of serious emotional harm to the children than the risk of a Crown wardship order. The best that these four adults could do, working cooperatively until the summer of 2001, was not nearly good enough for these children. All of the children have exhibited delays or problems as a result. None of the adults has made any significant gain since then. The situation is not really different now from what it was then so far as the children are concerned, as they were in difficulty then and they still have difficulties now, and the father and grandparents are unprepared now, as the grandparents were then, to meet the challenges these children pose.

49Crown wardship orders are not to have an access order attached to them unless the court is satisfied that access will not impair the child’s future opportunities for a permanent or stable placement. The evidence in this case is clear that an access order would make an already difficulty placement much more difficult.

50As for sibling access, the CAS can work out means for the sisters to be kept in touch if the need arises to place them for adoption in different homes. These arrangements are not legally binding but are the subject of negotiations and informal arrangements with prospective adoptive parents. I would not want to impose a sibling access order for the same reason that I would not impose an access order for a parent or grandparent.

51While the children are in foster care and even while they are placed for an adoption that has not been made final, the CAS as the custodial parent of the children retains the right to control who has access to the children and who does not, and on what terms. I leave it to the CAS to determine whether that power should be used in favour of any of the other children or any of the adult parties to this case.”

OUR CONCLUSIONS

17Throughout his reasons, the trial judge was conscious of and applied the “paramount purpose” and “other purposes” set out in CFSA, which states:

s.1(1) “The paramount purpose of this Act is to promote the best interests, protection and well being of children.”

18We are not persuaded that the trial judge failed to take into consideration any of the relevant circumstances set out in s.1(2) of the Act, nor any of those set out in s.37(3), 1-13 inclusive, of the CFSA, as he determined what was in the best interests of the children.

19In our view, the trial judge listened to, understood and balanced all the interests that were at play in this case. We would agree substantially with what counsel for the CAS said at paragraph [28] of her factum:

“28. In determining bests [sic] interest the court balanced all of the children’s needs with their stated views and preferences as required by the legislation. The appellants and the Office of the Children’s Lawyer asked the court to place considerable, if not all, emphasis on the love that the children have for their family and their stated desire to see their family. The learned trial judge correctly applied the best interests test in taking a broader and more global view that the children’s needs could only be met by a permanent plan ….. In a further recognition of the children’s views and preferences the Court stated, “But even the children are showing some recognition that they need more than their parents or grandparents can offer them.” It is respectfully submitted that the Court was entitled to reply on the evidence of the behaviours of the children as well as their stated oral views and preferences as given through the witnesses.

29. As the Court did consider the views and preferences of the children, the learned trial judge did not violate Section 7 of the Canadian Charter of Rights and Freedoms.”

20This case, as we see it, is fact driven. In Fletcher and Fletcher v. Manitoba Public Insurance Company [1993] S.C.R. 191, 204, Wilson J. said:

“These authorities, in my view, make crystal clear the test for determining when it is appropriate for an appellate court to depart from a trial judge’s findings of fact: appellate courts should only interfere where the trial judge has made a “palpable and overriding error which affected his assessment of the facts”. The very structure of our judicial system requires this deference to the trier of fact. Substantial resources are allocated to the process of adducing evidence at first instance and we trust the crucial task of sorting through and weighing that evidence to the person best placed to accomplish it.”

21The evidence, in our view, is overwhelming that the biological mother and the biological father had, by reason of their past, present and likely future attitudes and conduct, disqualified themselves from being able to take adequate and proper care of any of these four children. The paternal grandparents, although perhaps willing, had demonstrated that the task was beyond their capabilities. Indeed, they had earlier admitted that to be the case.

22In regard to the access order, in her factum, counsel for the CAS sums up what took place at trial:

“33. The Child and Family Services Act, s.59(2) recognizes that if a child is to be made a Crown Ward, there shall not be an Order for access unless a two-prong test can be met. It is submitted by the respondent Society that the parties must make it clear from the outset of the trial that they intend to request such an Order and meet the two-prong test. At this trial the parties’ positions were like shifting sands. At the outset of trial the mother was seeking a placement with her and the father was seeking a placement with him; the grandparents were not seeking a placement with them. As the trial progressed, matters changed.”

23Section 59(2) of the CFSA states:

“The court shall not make or vary an access order with respect to a Crown ward under section 58 (access) or section 65 (status review) unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child’s future opportunities for a permanent or stable placement.”

24With respect, we agree with what the trial judge said at para. [49] of his reasons which I have already read. Even though at trial no one asked that an access order be made, we are of the view that the trial judge was quite alive to s.59(2) of the CFSA and the onus set out in that section. We find no error in his disposition of the matter of access.

25The trial judge saw the witnesses, viewed the exhibits and made assessments of credibility and reliability and findings of fact. He applied the relevant law to the facts as found. We find no material error in his findings of fact nor in his application of the relevant law to those facts. Nor do we find any improper exercise of judicial discretion. In the result, the appeal is dismissed.

26With the concurrence of my colleagues, I have endorsed the back of the Appeal Book and Compendium of the appellants as follows: “This appeal is dismissed for the oral reasons

(recorded). We heard submissions from all counsel as to the costs of this appeal. After considering the submissions, we are of the view that there should be no order as to costs.”

O’DRISCOLL J.

JENNINGS J.

SWINTON J.

Date of Reasons for Judgment: June 21, 2004

Date of Release: July 20, 2004

COURT FILE NO.: 334/03 (Toronto)

69744/03 (Newmarket)

DATE: 20040621

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT