Children’s Aid Society of Northumberland v. A.S.W., 2011 ONSC 810

CITATION: Children’s Aid Society of Northumberland v. A.S.W., 2011 ONSC 810

DIVISIONAL COURT FILE NO.: DC-08-092575-00

DATE: 20110106

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT - NEWMARKET

JENNINGS, HERMAN, HARVISON YOUNG JJ.

BETWEEN:

CHILDREN’S AID SOCIETY OF NORTHUMBERLAND Applicant (Respondent in Appeal)

– and –

A.S.W. Respondent (Appellant in Appeal)

Ian Mang, Counsel for the Applicant (Respondent in Appeal)

Lorne Glass, Counsel for the Respondent (Appellant in Appeal)

HEARD: September 20, 2010

BY THE COURT

Background

1A.S.W. appeals from an order which made his two children, N., born October 10, 2000, and E., born June 16, 2002, Crown wards without access. The trial judge made the order following a seven day trial. In order to protect the identity of the children, initials rather than names are used throughout these reasons.

2The Children’s Aid Society of Northumberland (the “CAS”) had first become involved with the family in 2003 over concerns about domestic disturbances and A.S.W.’s health. At that time, A.S.W. was living with the children’s mother, H.T. The trial judge’s reasons set out the chronology of the significant CAS involvement with the family between 2003 and 2005. During this period, H.T. and A.S.W. separated and reconciled several times.

3During one period early in 2003, the children were placed under H.T.’s care pursuant to a written agreement with the CAS, and A.S.W. had supervised access to the children and a temporary supervision order was made in February, 2003. The children were brought into care in August, 2003 because their mother was unable to care for them. In the fall of that year, A.S.W. was in prison for two months for criminally harassing a girlfriend. In December, 2003, the children were placed in A.S.W.‘s care, subject to a supervision order which was ultimately terminated June, 2005. H.T. and A.S.W. separated for the last time in approximately 2006.

4By the time of the separation, A.S.W. was living with a new partner, A.P.. As the trial judge noted, she had an extensive history with CAS, having parented 4 children, all of whom had been made Crown wards, without access.

5The children were apprehended the day after A.S.W. and A.P. were arrested on drug charges on October 30, 2006. A temporary care order was made at that time which gave both H.T. and A.S.W. access to the children. H.T. exercised access until December, 2006, when she stopped. She has played no role in these proceedings. A.S.W. began exercising weekly, supervised access after his release from jail on bail on November 26, 2006.

6The children were found to be in need of protection on March 23, 2007 pursuant so ss. 37(2)(b)(i) and ss. 37(2)(g) of the Act. They were made CAS wards for 4 months. The parents were granted supervised access but H.T. did not exercise access. By this time, A.P. was 4 months pregnant by A.S.W.. Their child, born August 20, 2007, was apprehended at birth and made a Crown ward without access by court order dated November 17, 2008.

7In May, 2007, A.P. pleaded guilty to possession of oxycodone and received a conditional discharge and one-year probation. A.S.W. pleaded guilty to possession of cocaine and to possession of oxycodone for the purpose of trafficking. He was sentenced to 4 months custody, followed by 18 months probation.

8In its Status Review Application dated July 5, 2007, CAS requested Crown Wardship of the children, without access to the parents. As indicated above, the trial judge heard that matter and, following a 7-day trial, ordered that both N. and E. be made Crown wards without access to their parents. As of the time of the hearing of this appeal, the foster families of both children wished to adopt them. After reading the materials filed and hearing the submissions of the parties, we have concluded that the appeal should be dismissed. Our reasons follow.

Standard of Review

9As the Supreme Court of Canada set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the applicable standard of review on an appeal from a trial judge’s determination of a point of pure law is correctness (para. 8). Findings of fact are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”: Stein v. The Ship “Kathy K”. (at para. 10). A question of mixed fact and law should be accorded deference, subject to clear error in law or principle or palpable or overriding error of fact.

Issues

10The appellant raises three main grounds of appeal. First, he argues that there was no basis for the finding of risk. Second, he argues that the trial judge erred in granting the wardship order without considering, pursuant to ss.57(3) of the CFSA, whether the CAS or another agency had made efforts to assist the children or the family before intervention. Third, he argues that the trial judge erred in failing to consider less intrusive alternatives to that of wardship without access.

11Each ground will be addressed in turn.

Analysis

(a) There was no basis for the finding that the children were at risk.

12The appellant pointed to the fact that the CAS had withdrawn its supervision in 2005 and that there had been no reported problems until his arrest in October, 2006, with A.P. when the children were apprehended. He argued that that there were no new facts at that time, apart from the arrest and incarceration of A.S.W., that could justify the draconian result of a Crown wardship order. We disagree. We note that there was no suggestion by the appellant that the trial judge’s synopsis of the history prior to 2006 was wrong in any way.

13In addition, we agree with the respondent CAS which submitted that there were some significant new developments by the time the CAS became involved again in November, 2006. It pointed to A.S.W.’s relationship with A.P., as well as his incarceration on drug charges, both of which were significant new developments. The trial judge also noted that at apprehension, there were many indications that the children had received inadequate care, were lagging developmentally and were suffering emotionally (para 87), including the fact that they were dirty and unkempt at the time.

14The appellant also submitted that the trial judge should not have considered the pre-2006 history in her assessment of whether the children were at risk. The trial judge found that:

A.S.W. has a continuing pattern of dangerous liaisons with domestic partners who abuse alcohol or drugs or both. He has a history of significant emotional traumas and mental health disability for which he has received inadequate treatment and currently receives no treatment. He has self-medicated his emotional pain with illicit drugs. He has a history of domestic violence and other criminal activity frequently leading to his incarceration. The result is that N. and E. have been and continue to be at risk of physical and emotional harm from their father’s actions. (para. 86)

I find on the evidence that the father’s pattern of mental instability, substance abuse, turbulent lifestyle and inappropriate domestic partners put N. and E. at continued risk of physical and emotional harm….(para91)

15We disagree with the appellant. The fact that some of the evidence relied on related to circumstances existing before 2005 does not mean that those circumstances are not probative for the purpose of assessing present or ongoing risk to the children. The cumulative history was clearly relevant and probative in the assessment of the continuing risk to these children. In short, there was ample evidence before the trial judge, which she reviewed carefully and extensively, to ground her conclusion that the children were at risk. The fact that the current factors repeated or continued earlier patterns was properly considered by the trial judge. We find no error of law or principle, or palpable or overriding error of fact that would warrant interfering with the trial judge’s conclusion on this issue.

(b) The trial judge erred in failing to consider whether CAS or another agency made efforts to assist the children or the family before intervention pursuant to s.57(2) of the CFSA.

16The appellant argued that the trial judge failed to comply with s. 57(2), which reads as follows:

In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13(4).

17We disagree. At paragraph 92 of her reasons, the trial judge stated that “[t]he CAS and other agencies have offered assistance to this family on an ongoing basis”. She reviewed the history of such assistance in that regard, and concluded that such assistance had not reduced the risks to these children. In our view, this clearly responds to the requirements set out in s. 57(2). We find no error of law or principle in the trial judge’s application of this provision to the circumstances before her.

(c) The trial judge erred in failing to consider less disruptive alternatives to an order of Crown wardship without access as required by s.57(3) of the CFSA.

18Section 57(3) provides as follows:

The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c. 2, s. 15(1).

19The appellant submits that the trial judge erred in law in failing to consider less disruptive alternatives to Crown wardship without access. We disagree. The trial judge extensively reviewed the evidence led in this matter, and she expressly considered the question as to whether less disruptive alternatives to Crown wardship might be made. She stated at paras. 93-94:

93No family or other person, apart from A.S.W., has come forward with a plan of care for N. and E.. Their mother is unwilling or unable to care for them. Her mother was contacted by CAS and is not interested in providing care. Neither J.W. nor S.W. is able to care for the children.

94The only available, less disruptive alternative to Crown wardship for these children is a return to their father’s care, with or without a supervision order. That has been tried in the past. It is not in the best interests of these children now.

20With respect to E., the trial judge referred to signs that E. was troubled by access and sometimes had “emotional meltdowns” following access. She noted that N. had often been upset by incidents during access. She also expressed concern that continuing access would perpetuate his hope and belief that he will be returning home, and encourage him in thinking (as he had commented at one point) that there was no point in trying to do well in school because he would be leaving to return to his father’s home. She concluded that both children need a permanent home.

21In our view, the judge properly considered less disruptive alternatives, and did so within the context of the evidence before her which bore on what those, realistically, entailed. She found that there were no less intrusive alternatives, a conclusion that she was entitled to reach on the evidentiary record before her.

22In conclusion, we find no error of law or principle, or any palpable or overriding error of fact that could justify interfering with the order made by the trial judge, and the appeal is dismissed. There will be no order as to costs.

JENNINGS J.

HERMAN J.

HARVISON YOUNG J.

Released:

CITATION: Children’s Aid Society of Northumberland v. A.S.W., 2011 ONSC 810

DIVISIONAL COURT FILE NO.: DC-08-092575-00

DATE: 20110106

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT - NEWMARKET

Jennings, Herman, Harvison Young JJ

BETWEEN:

CHILDREN’S AID SOCIETY OF NORTHUMBERLAND Applicant (Respondent in Appeal)

– and –

A.S.W. Respondent (Appellant in Appeal)