Court File and Parties

Court File No.: 139/09

Released: 20090821

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: CHILDREN AND FAMILY SERVICES FOR YORK REGION (Appellant)

• and -

H.C., C.S. and R.C. (Respondents on Appeal)

Before: Carnwath, Swinton and Low JJ.

Counsel: Amelia M. James for the Appellant Michael Polisuk for the Children’s Lawyer Elizabeth W. Mark and David P. Miller for H.C. Tammy Law for C.S. Kerri Joffe for the Intervenor, the Canadian Hearing Society

Heard at Toronto: August 19 and 20, 2009

Amendment to reflect omitted name of counsel David P. Miller, for H.C, released August 20, 2009.

This has been corrected to: Elizabeth W. Mark and David P. Miller, for H.C, dated September 1, 2009

ENDORSEMENT

[1] Children and Family Services for York Region (“the Society”) appeals from the decision of Olah J. dated August 12, 2008, in which she ordered that the child H was a child in need of protection pursuant to s. 37(2)(b)(ii) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“the Act”). She ordered that H be returned to the care and custody of her mother under the supervision of the Society, subject to a number of terms and conditions, for a period of 12 months. In December 2008, the trial judge gave detailed reasons for her decision.

[2] The order has been stayed since August 2008 pending the appeal, and H has continued to live in a foster home, where she has resided since September 2006. The child is now seven years old. She was first apprehended by the Society in November 2005.

[3] At the end of oral argument in this appeal, we indicated that the trial judge’s decision would be affirmed, with the exception of one term discussed below, with reasons to follow. We gave our decision in order that the parties could immediately make arrangements for the child’s reintegration to her mother’s care before the commencement of the school year.

[4] The Society argues that the trial judge made palpable and overriding errors in making her findings of fact, and that therefore, her decision should be overturned, and the child should be made a Crown ward without access. The Children’s Lawyer supports the position of the Society.

[5] Fresh evidence was filed by the Society and by both parents on this appeal. This evidence was admitted, as we concluded that evidence of post-trial events, as imperfect as that evidence might be, would assist in determining the best interests of the child (Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 83 (SCC), [1994] 2 S.C.R. 165 at para. 23). We note that no cross-examinations on the affidavits took place.

[6] The standard of review on an appeal of a trial judge’s decision is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31. On questions of law, the judge must be correct. Findings of fact are not to be reversed unless it is established that the judge made a palpable and overriding error (paras. 8 and 10).

[7] The Society argues that the trial judge erred in failing to find that H was a child in need of protection pursuant to s. 37(2)(g), which reads:

there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

[8] The trial judge held that there was no evidence that the child was likely to suffer emotional harm resulting from the actions, failure to act or pattern of neglect on the part of her parents (Reasons, para. 35). The trial judge observed that the child’s disorganized attachment and severe behaviours, which were noted in the evidence of the child’s therapist and of the parenting assessor, were not present when the child was in the care of the mother, but only became present well after apprehension.

[9] The Society was unable to point to any evidence that the child suffered behavioural problems while she had been in the care of her mother. Likewise, it was unable to point to any evidence either from the assessor or the therapist asserting that the child was likely to suffer emotional harm from any actions, failure to act or pattern of neglect on the part of the parents. Moreover, it has failed to show that the trial judge misapprehended the evidence that it urges ought to have led the trial judge to draw an inference respecting the risk of emotional harm caused by the mother.

[10] The Society also argues that the trial judge erred in the disposition she made with respect to the child, as she failed to give adequate weight to the best interests of the child.

[11] We reject this submission. The trial judge gave detailed reasons showing that she did, indeed, consider the best interests of the child. She considered the various factors in s. 37(3) of the Act and weighed the evidence before her. She also considered s. 57(3), which provides that a court shall not make an order removing a child from the care of a person who had charge of him or her before the intervention unless satisfied that alternatives less disruptive to the child would be inadequate to protect the child.

[12] While the Society argued that the trial judge did not consider specific portions of the evidence, it is clear from the reasons that the trial judge did consider the significance of RD’s past history, as well as the mother’s history of alcohol and drug use and her depression.

[13] The Society is, in effect, asking this Court to reweigh the evidence and to substitute our decision for that of the trial judge. That is not the function of this Court on appeal. This is particularly the case in a child protection matter (Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at para. 12; Children’s Aid Society of Toronto v. C. (S.A.), 2005 43289 (ON SC), [2005] Carswell Ont 5932 (Ont. S.C.J.)).

[14] The trial judge made her decision after a 20 day trial in which she was able to hear all the witnesses and evaluate all the evidence. We are not satisfied that she made any palpable and overriding errors in her assessment of the evidence and her findings of fact. Even if she misstated some details of the evidence, none of the errors complained of by the Society are material or serious.

[15] In the alternative, the Society argues that the new evidence shows that the best interests of the child now require an order of Crown wardship without parental access. That evidence included a test from Motherisk in February 2009 indicating that the mother had consumed alcohol extensively in the preceding months. As well, the mother had missed a number of supervised access visits with H.

[16] The mother has provided an explanation for her missed visits and described her alcohol and drug use in her most recent affidavit. There is no evidence that the consumption of these substances occurred post apprehension while the child was in her care.

[17] The evidence also shows that the access to both parents was positive and has been beneficial for the child. The mother continues to be in a stable and positive relationship with R.D, and she has had part-time employment since October 2008.

[18] We are not satisfied that the new evidence would be sufficient to alter the result at trial, or that it alone is sufficient to reverse the trial judge’s decision. Therefore, we would not interfere with the disposition made by the trial judge.

[19] The Society argues that the trial judge had no jurisdiction to include as a term of her order the following: that the Society assign a family worker who is familiar with American Sign Language (“ASL”). Paragraph 57(8)(c) of the Act permits the court to impose reasonable terms on the Society that will supervise the placement “but shall not require the society to provide financial assistance or purchase any goods or services”.

[20] While the intervenor Canadian Hearing Society argued that the order was consistent with the Society’s obligations under the Human Rights Code, there was no finding made of a violation of the Code nor was there any discussion in the reasons about the extent of the Society’s obligations with respect to reasonable accommodation.

[21] More fatal to that part of the order under appeal, counsel were not given an opportunity to make submissions on the question, nor was there any indication from the trial judge that such an order was under consideration. Therefore, this aspect of the appeal is allowed, and s. 2(ii), the term relating to a family worker familiar with ASL, is quashed.

[22] The effect of the Human Rights Code on the interpretation of s. 57(8)(c) of the Act is best left to another day, when the issue can be considered in light of a full record and submissions of counsel.

[23] The order of the trial judge with the exception of paragraph 2(ii) is affirmed. We have been informed that s. 2(iii) has been satisfied.

[24] If the parties cannot agree on costs, they may make brief written submissions through the Divisional Court Office in Toronto within 30 days of the release of this endorsement.

Carnwath J.

Swinton J.

Low J.

Released: August 20, 2009 - Amended September 1, 2009 as described on Page 1