COURT FILE NO.: DC-09-337
DATE: 2009-09-29
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT.
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Children’s Aid Society of Hamilton Applicant/Respondent in Appeal
AND: S.M. Respondent, Applicant in Appeal
BEFORE: J. Wilson, S. Lederman, D. Aston JJ.
COUNSEL: H. James Wood, for the Applicant/Respondent in Appeal Joseph M. Chrolavicius, for the Respondent/Appellant in Appeal
HEARD AT TORONTO: September 17, 2009
ENDORSEMENT
Aston J.
Background and Nature of the Appeal
[1] On April 30, 2008, after a 16 day trial, Lafreniere J. rendered a comprehensive oral judgment. She concluded that the most appropriate disposition of the Status Review Application before her was an order for crown wardship, without access to the two children by the mother. The mother appeals that decision.
[2] The children had already been found to be “in need of protection” within the meaning of s.37 of the Child and Family Services Act, so the only issue before the trial court was to determine what order, if any, would reflect the best interests of each child. See s.65(1) of the Act.
[3] S., now 5 years old, has only been in her mother’s care for about 15 months of her life and has otherwise been in the intermittent care of the respondent Society, including 39 of the last 40 months. D., now 4, has been in the care of the Children’s Aid Society since he was about 9 months old. Due to the time the children had already been in care, the dispositional options were limited to the four possible orders identified by the trial judge early on in her reasons: that the children be returned to the mother, with or without terms of supervision or that they be made Crown Wards, with or without access.
Standard of Review and Grounds for Appeal
[4] It is not the function of the appellate court to retry the case and substitute its own view of the facts. Our task is to review the record to determine if the trial judge made an error of law, applied an incorrect test, or committed palpable and overriding error by disregarding or misapprehending relevant evidence or making findings unsupported by any evidence.
[5] Counsel for the mother submits that the trial judge erred as follows:
(a) failing to find the apprehensions of the children were unfounded and granting a disposition that unfairly punished the mother for the conflict between the mother and the last two workers assigned to work with her;
(b) failing to take into account Dr. Archer’s critique of the s.54 assessment report, or to adequately address the critique in her reasons; and
(c) failing to take into account the potential support the maternal grandmother could provide to the mother.
Apprehensions of the Children and Fair Treatment of the Mother by the Society Workers
[6] The trial judge addressed the warrantless apprehensions of the children and whether the mother had been treated fairly by the Society, even though those issues had little or no relevance to what was in the best interests of the children by April, 2008. Quite properly, the trial judge was not distracted by those issues. Rather, she framed her findings and conclusions from a child-focused perspective, recognizing their best interests as the paramount consideration. Furthermore, there is ample evidence to support the trial judge’s conclusion that:
…both Ms. Moester and Ms. Robertson tried to work with the mother, and I am satisfied that they both presented accurate evidence to the Court and that they both tried to be frank and evenhanded. Ms. Moester went to great lengths to support the placement of S. in her mother’s care. I accept her evidence that she did what she did on September 1st to avoid a reapprehension.
I am satisfied that the apprehension of S. and D. in May of 2006 was appropriate and warranted and supported by the evidence. … I am satisfied that Ms. Robertson acted appropriately on October 18th. The mother’s words and actions described by Ms. Robertson, and verified for the most part by the maternal grandmother and the mother herself, demonstrated that the mother was no longer prepared to work cooperatively with the Society and no longer prepared to take direction from the workers. … Her behaviour was escalating and she was not able, at that point, to interact in a rational way with the society.
Dr. Archer’s evidence
[7] Though the reasons of the trial judge do not specifically address the particulars in Dr. Archer’s critique, both Dr. Archer and Dr. Ashbourne testified at the trial. Dr. Ashbourne was cross examined at some length on all aspects of Dr. Archer’s critique, including the mother’s previously diagnosed attention deficit disorder. It is obvious from the reasons that the trial judge took Dr. Archer’s evidence into account before concluding:
Dr. Archer did not offer any opinion as to the best interests of the children or the mother’s ability to parent the children. In cross-examination by the mother’s counsel Dr. Ashbourne responded to the criticisms raised by Dr. Archer in her critique. Dr. Archer’s critique did not seriously challenge Dr. Ashbourne’s conclusion or recommendations, and I accept Dr. Ashbourne’s assessment and report.
[8] Furthermore, the trial judge found “the conclusions reached by Dr. Ashbourne are amply supported by the evidence of the Socitey workers”. The conclusions of the trial judge included, but were not limited to, the opinion evidence of Dr. Ashbourne.
The Maternal Grandmother
[9] Dr. Archer opined that the maternal grandmother, C.M., should have been interviewed as part of the s.54 assessment. Counsel for the mother submits the grandmother was summarily dismissed by Dr. Ashbourne and the Society because of her physical disability, and that they failed to consider her success in raising her own children. It is evident the trial judge considered and rejected this submission.
[10] C.M. testified at trial and the trial judge had full opportunity to consider the possible support or assistance she could provide to the appellant. There is evidence to support the trial judge’s conclusion that:
…the maternal grandmother cannot assist the mother in meeting her deficiencies in parenting. The maternal grandmother’s evidence was that she cannot persuade the mother to keep the litter box clean; she cannot calm her down when she gets angry unnecessarily. The maternal grandmother stated the mother cannot be reasoned with when she is angry. I find as well that the maternal grandmother insome ways enables the mother. She also thinks that D. is fructose-intolerant; she also does not accept that D. has global delays or that S. has any delays.
Conclusions
[11] After canvassing the evidence and making findings of fact the trial judge reviewed the positions of the parties and their plans for the children. She specifically addressed the submissions made by the mother’s counsel. She considered all the relevant factors under s.37(3) of the Act, though without specific reference to the section itself. She considered each child separately.
[12] When considering the four available orders, the trial judge began with the “least intrusive” dispositions, proposed by the mother. The Crown Wardship disposition was arrived at because less drastic orders would fail to meet the best interests of the children. She then applied the correct test in relation to ongoing access to the children by the mother.
[13] There was an abundance of cogent evidence to support the findings of the trial judge. The appellant has failed to demonstrate that the trial judge made any error at law, misapprehended or ignored relevant evidence or that there is any palpable and overriding error in her findings or conclusions.
[14] The appeal is therefore dismissed.
J. Wilson J.
S. Lederman J.
D. Aston J.
DATE: September 29, 2009