Citation and Court Information
DIVISIONAL COURT FILE NOS.: DC-11-1759/DC-11-1760
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
WARNING
THIS IS AN APPEAL UNDER THE CHILD AND FAMILY SERVICES ACT AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
(7) The court may make an order, (a) excluding a particular media representative from all or part of a hearing; (b) excluding all media representatives from all or a part of a hearing; or (c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
HACKLAND R.S.J., ROBERTSON and AITKEN JJ.
BETWEEN:
S.N-D. Respondent/Appellant in Appeal
– and –
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant/Respondent in Appeal
Counsel: S.N-D., representing herself Julie Daoust, for the Applicant/Respondent in Appeal
HEARD: January 5, 2012
REASONS FOR JUDGMENT
Nature of the Proceedings
1S.N-D. appeals two orders of Crown wardship made by the Superior Court of Justice in regard to her two children, namely:
(a) The Judgment of Beaudoin J. made on July 14, 2011, following a five-day trial, in regard to her son, A.N. (d.o.b. […], 2010); and
(b) The Judgment of Parfett J. made on August 15, 2011, following a summary judgment motion, in regard to her daughter, A.N-D. (d.o.b. […], 2011).
2At the time of a case conference in regard to these appeals, it was ordered that both be heard at the same time. Each of S.N-D. and the Children’s Aid Society of Ottawa (“the Society”) produced one factum and made one set of submissions in regard to both appeals.
3For the reasons that follow, both appeals are dismissed.
Background
4S.N-D.’s first child, A.N., was apprehended by the Society at the hospital following his birth on […], 2010, and has remained in the Society’s care since his apprehension. Until the final order of Beaudoin J. making A.N. a Crown ward, S.N-D. had supervised access to her son three times a week.
5The grounds upon which the Society sought an order that A.N. was a child in need of protection were that there was a risk that the child was likely to suffer physical harm inflicted by S.N-D. or caused by or resulting from her failure to adequately care for, provide for, supervise, or protect the child.1 Initially, the Society sought three months’ Society wardship. On October 7, 2010, Manton J. ordered S.N-D. to undergo an assessment by Dr. Abe Worenklein in regard to her parenting capacity and mental health. In his report issued February 23, 2011, Dr. Worenklein concluded that S.N-D., at that point in time, did not have the prerequisite skills, judgment and insight required to be a full time parent. Following the release of this report, the Society amended its application to seek Crown wardship for the purpose of adoption.
6In a subsequent note dated March 1, 2011, Dr. Worenklein stated that, at the time, he was not recommending Crown wardship for A.N. Instead, he thought it was in A.N.’s best interest to allow S.N-D. an additional six months to better develop her parenting skills and her ability to attend to A.N.’s needs. He recommended that S.N-D. be allowed to take additional parenting courses provided by community agencies and continue infant stimulation activities at the Society. He recommended that, as the six months drew to a close, a follow-up be conducted to determine whether the concerns in the report had been adequately addressed and corrected. No such follow-up assessment was ever done.
7The trial before Beaudoin J. was held between June 13-17, 2011. In his 56-page Judgment released July 14, 2011, Beaudoin J., after reviewing all of the evidence, ordered that A.N. be made a Crown ward.
8At trial, S.N-D. testified that she had taken two parenting workshops, had recently enrolled in another parenting program, and had recently attended one‑on-one counseling with another person. She testified that she had previously looked for other community-based parenting programs but had been unable to participate in any. She acknowledged that, until shortly before trial, she had refused to sign consent forms allowing the Society to get information from those providing her with assistance.
9In arriving at his decision, Beaudoin J. relied in part on the testimony of Dr. Worenklein who expressed concern about S.N-D.’s ability to parent and to meet the physical and emotional needs of A.N., particularly when she was about to have another child. Dr. Worenklein also expressed concern if S.N-D. had not pursued parenting courses earlier and had not consented to the Society having direct access to those providing her with parenting courses. Finally, he was concerned about S.N-D.’s observed inability to apply what she had been taught.
10On […], 2011, S.N-D. gave birth to a daughter, A.N-D. Until the trial before Beaudoin J., she had refused to acknowledge to the Society that she was pregnant. The baby was apprehended at birth and, following surgery to repair a number of heart defects, was placed in foster care. The Society brought a motion for summary judgment on August 5, 2011 seeking Crown wardship, without access, for the purpose of adoption. The Society relied on the findings made by Beaudoin J. in regard to A.N. and evidence that nothing had changed in terms of S.N-D.’s parenting capacity, judgment, and insight. On August 15, 2011, Parfett J. granted the motion for summary judgment, concluding that it was in A.N-D.’s best interest to be made a Crown ward. Like Beaudoin J., Parfett J. carefully reviewed all of the evidence on the motion before rendering her decision. Until that time, S.N-D. had access to her daughter three or four times a week. Parfett J. terminated S.N-D.’s access rights so that A.N-D. could be placed for adoption.
Jurisdiction
11The Divisional Court has jurisdiction to hear these appeals pursuant to s. 69 of the Child and Family Services Act, R.S.O. 1990, c. C. 11 (“CFSA”) and s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”).
Standard of Review
Regarding the Judgment of Beaudoin J.
12In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the Supreme Court of Canada addressed the standard of review on an appeal from a judge’s decision. In summary:
On a pure question of law, the basic rule with respect to the review of a trial judge's findings is that an appellate Court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness (at para. 8).
The standard of review for findings of fact is that such findings 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).
Questions of mixed fact and law are subject to the “palpable and overriding error” standard unless it is clear that the trial judge made some error of law or principle that can be identified independent of the judge's application of the law to the facts of the case. In these circumstances, the error of law is extricable from the questions of mixed fact and law in issue and must be separated out and reviewed on a standard of correctness (at paras. 36-37).
13The Ontario Court of Appeal commented on the definition of a palpable and overriding error in Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201, [2004] O.J. No. 1765 (C.A.) at paras. 296-297, 300:
The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: Housen at 246. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254 at 281.
...Housen provides a detailed analysis of the "palpable and overriding" standard of review… First and foremost, … the "palpable and overriding" standard applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts. This court cannot retry any aspect of this case.
Regarding the Summary Judgment of Parfett J.
14In Catholic Children’s Aid Society of Toronto v. Y.K., [2007] O.J. No. 3080 (S.C.), aff’d 2008 ONCA 27, [2008] O.J. No. 137, the Superior Court of Justice addressed the standard of review on an appeal of a summary judgment made under the Family Law Rules, O. Reg. 114/99, s. 16. In summary:
The standard of review on an appeal of a summary judgment order is correctness, as most issues arising out of a summary judgment hearing are errors in law. Where an error in fact is alleged, the standard of review is less deferential than palpable and overriding error but more deferential than correctness as the judge’s decision is entitled to due respect.
Regarding Cases Involving the Custody of Children Generally
15In Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at para. 12, Bastarache J. stated that the standard of review articulated by the Court in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at paras. 10-12 in regard to support issues, is equally applicable in the context of child custody. That standard is as follows:
When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges…Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate Courts when such decisions are reviewed.
Our Court has often emphasized the rule that appeal Courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.
…Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balance the factors differently.
Grounds of Appeal and Remedies Sought
16In her Factum, S.N-D. stated numerous reasons why the Judgments of Beaudoin J. and Parfett J. should be set aside. The issues raised can be clustered under three headings: (1) constitutional issues; (2) lack of procedural fairness; and (3) lack of evidence of harm.
17In regard to constitutional issues, S.N-D. submits that sections of the CFSA dealing with child protection are ultra vires because they usurp the exclusive jurisdiction of the Federal Government to make laws in relation to child protection, and, more particularly, they infringe on the Federal Government’s exclusive authority over criminal law. As well, they infringe ss. 7, 11(d), and 15 of the Charter of Rights and Freedoms2 (“Charter”). Consequently, she seeks a declaration that such sections are unconstitutional, they have no force and effect, and they must be struck down. At the same time, S.N-D. seeks an order that the Society’s allegations against her regarding child protection issues be retried in criminal court.
18In the alternative, if the relevant sections of the CFSA are not struck down, S.N-D. asks for a retrial of the proceedings regarding A.N. and A.N-D because the earlier proceedings violated her rights under ss. 7(d), 11 and 15 of the Charter. Finally, she asks for a stay of the orders of Crown wardship in regard to both children until such time as a new trial has been completed.
19More specifically, in regard to issues of procedural fairness in the trial before Beaudoin J., S.N-D. listed her arguments regarding procedural fairness as follows:
(a) The trial judge would not let her submit her evidence in chief by way of an affidavit.
(b) After she had completed her evidence, the trial judge would not let S.N-D. return to the witness box to submit further exhibits - more particularly those relating to parenting programs she had taken or recently started.
(c) The trial judge put words into the mouth of Jane Scharf, one of the witnesses called by S.N-D.
(d) The trial judge failed to require the Society to call certain witnesses on their witness list whom S.N-D. wished to cross-examine.
(e) The trial judge failed to subpoena Dr. John Bradford so that S.N-D. could cross-examine him.
(f) The trial judge refused to let Joshua Cohen, another proposed witness of S.N-D., testify.
20S.N-D. did not provide any additional arguments relating specifically to the proceedings before Parfett J. aside from stating that Parfett J. should not have relied on any of the findings of fact of Beaudoin J. and should have assigned greater weight to other evidence presented by S.N-D. at the time of the summary judgment motion.
Analysis
Constitutional Arguments3
21It is well-settled law that custody and access, including issues relating to child welfare and child protection, fall under provincial jurisdiction by virtue of s. 92(10) of the Constitution Act: “property and civil rights in the province”.4 Consequently, this ground of appeal has no validity.
Criminal Court
22It is also well-settled law that the criminal court is not the forum to hear a child protection matter. Section 45(3) of the CFSA provides that child protection hearings must be held separately from criminal proceedings.5 The reason for this is that the focus of child protection proceedings is the safety and well being of children. This is not an area of law filled with presumptions for the adults involved. There is no presumption of innocence in child protection proceedings, as suggested by S.N-D. No order will be made for a retrial of these actions in criminal court.
Procedural Issues Regarding the Trial before Beaudoin J.
23The Charter applies in matters under the CFSA, including summary judgment motions: New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 653 (SCC), [1999] 3 S.C.R. 46; Chatham-Kent Children’s Services v. J.K. (2009), 2009 ONCJ 589, 79 R.F.L. (6th) 225 (Ont. C.J.); Catholic Children’s Aid Society of Hamilton v. C.R. (2009), 2009 34047 (ON SCDC), 69 R.F.L. (6th) 69 (Ont. C.A.). Therefore, S.N-D. had the right to expect procedural fairness at the hearings relating to both Crown wardship applications.
24As a general comment, we note that S.N-D. decided in the period leading up to the hearing of these appeals that she did not require any transcripts from the two proceedings to effectively argue the appeals. Instead, she preferred that the appeals be heard without any further delay. Consequently, she did not provide to this Court any transcripts to support her allegations as to unfair procedural practices in the courtroom at the time of either proceeding. In circumstances where neither the Reasons for Judgment nor the record otherwise produced offers any suggestion of lack of procedural fairness, this Court cannot be expected to intervene on the basis of mere allegations. This observation in essence deals with all grounds of appeal based on procedural issues; nevertheless, we will briefly address each to the extent that we can based on the limited record provided to us on these appeals.
(a) Affidavit Evidence
25What appeared to be of greatest concern to S.N-D. was that Beaudoin J. required her to provide her evidence in chief orally; she was not permitted to simply file an affidavit with exhibits. This ground for appeal must fail.
26It is standard procedure at all trials that witnesses provide their evidence orally. That being said, there are certain limited circumstances where witnesses may be permitted to provide their evidence by way of affidavit. In regard to family law proceedings, of which child protection proceedings are an example, in the absence of the consent of both parties, one of the circumstances in which a witness at trial may be allowed to give evidence by affidavit is if it is in the interests of justice to do so. (See r. 23(20)(d) of the Family Law Rules.) The trial judge has considerable discretion in determining whether it would be in the interests of justice for a witness to provide evidence by way of affidavit.
27At a trial management conference shortly before the trial relating to A.N., Polowin J. explained the trial process to S.N-D. and directed the Society to provide by fixed dates its evidence in chief by way of affidavit so that S.N-D. would have notice of the Society’s case. This is a common practice in child protection proceedings to add efficiency to the trial process in circumstances where much of the evidence from professionals relates to specific dates, times, and occurrences recorded in contemporaneous notes kept by Society workers. It is a procedure contemplated under r. 17(6)(b) of the Family Law Rules dealing with trial management conferences. The Society complied with the order of Polowin J. and provided S.N-D. in advance with copies of the relevant affidavits. At the trial management conference, no order was made for S.N-D. to provide her evidence in chief by way of affidavit. Consequently, it was not anticipated by the Society or by the trial judge that S.N-D. would be trying to provide her evidence in this fashion.
28In his Reasons for Judgment, Beaudoin J. explained in detail why he would not allow S.N-D. to provide her evidence in chief by way of affidavit – a procedure that would have been highly unusual in regard to the evidence of a parent in a child protection case. It was apparent to the trial judge that the level of English used in the affidavit and accompanying documents that S.N-D. wished to file was remarkably higher than the limited command of the English language exhibited by S.N-D. in the courtroom. It was evident to Beaudoin J. that someone other than S.N-D. had prepared these documents or had assisted substantially in their preparation; nevertheless, S.N-D. insisted that she had prepared all of these documents herself without any assistance from anyone else. It was well within the mandate of the trial judge in managing the proceedings to refuse S.N-D.’s request to file an affidavit and accompanying documents when he was not confident that the affidavit, in fact, represented her evidence instead of someone else’s summary of what her evidence should be.
29We note that, in order to ensure that S.N-D. had the opportunity of providing her evidence as fully and clearly as possible, Beaudoin J. encouraged her to consider testifying in French – her mother tongue – in that he, the court staff, and the Society’s counsel were all fluently bilingual. It is evident from his Reasons for Judgment that Beaudoin J. wanted S.N-D. to testify in the language in which she was most proficient. S.N-D. rejected this suggestion and insisted on providing her evidence in English. She took the same stance on the summary judgment motion before Parfett J., another bilingual judge. When arguing the appeals, S.N-D. also insisted on speaking English. The Court provided her with a certified interpreter in case she changed her mind and wished to proceed in French or in case she needed any assistance in expressing herself or having herself understood in English. S.N-D. insisted on making her submissions in English and advised the Court that she might need the assistance of the interpreter only to help on occasion with the pronunciation of certain English words.
30Beaudoin J., at the trial, went on to explain to S.N-D. that, if she wanted to refer to any materials or audio recordings during her oral testimony, she could do so, and those items would be made exhibits in the normal course. Therefore, S.N-D. had ample opportunity at the trial before Beaudoin J. to provide her evidence in a fulsome fashion and to introduce into evidence any relevant exhibits. The fact that, in retrospect, she wished she had provided additional evidence does not mean that she was not afforded procedural fairness in this regard.
(b) Reply Evidence
31S.N-D. raised a concern about not being able to return to the witness box after she had completed her evidence in order to enter further exhibits regarding parenting courses she had taken or had tried to take. This would have been a highly unusual step, in that S.N-D. had already testified, had been cross‑examined, and had been given the opportunity to enter her exhibits. It is for a trial judge to manage the proceedings. Trial judges have considerable discretion in deciding whether a witness should be recalled during the course of a trial. We have not been persuaded that the trial judge made any error in refusing to exercise his discretion in this regard. In any event, it is clear from the Reasons of Judgment of Beaudoin J. that S.N-D. had already testified about her efforts to take various parenting courses after Dr. Worenklein had issued his report and her attendance at some such programs.
(c) Jane Scharf
32S.N-D.’s complaint in regard to the evidence of Jane Scharf appeared to be that the trial judge did not believe aspects of Ms. Scharf’s testimony. As in all judge-alone trials, the judge has the right to make credibility assessments and is not under any obligation to accept the evidence of any witness.
(d) Other Society Witnesses
33S.N-D. argued that the trial judge should have required the Society to call certain witnesses on their original witness list, but not on their final witness list, so that she had the opportunity of questioning them. The Society was not obliged to call all potential witnesses. There was nothing stopping S.N-D. from summonsing a witness who had evidence relevant to the issues in dispute at trial.
(e) Dr. John Bradford
34Prior to the trial, S.N-D. had served a summons to witness on Dr. John Bradford, a psychiatrist at the Royal Ottawa Hospital who, at some point in the past, had seen R.M., a man with whom S.N-D. was associated at the time of A.N.’s birth. The trial judge cancelled the summons to witness on the grounds that any evidence Dr. Bradford might be able to provide regarding R.M. was irrelevant to the issues before him because R.M. was not a party to the proceedings and he had not been identified in S.N-D.’s plan of care.
35It appeared that S.N-D. thought evidence relating to R.M. was relevant on the Crown wardship applications because reference had been made to R.M. not being an appropriate person for A.N. to be around in the documents submitted by the Society to justify A.N.’s apprehension. In the documents filed by S.N-D. on these appeals, she alleged that A.N. had been apprehended on the basis of false information, including false information about R.M. As the trial judge pointed out in his Reasons for Judgment, the basis for the apprehension was no longer an issue at trial. There were two findings that A.N. was a child in need of protection and the Society was seeking an order of Crown wardship based on evidence of S.N‑D.’s parenting capacity – not on the basis of anything having to do with R.M. Consequently, Beaudoin J., quite appropriately, considered evidence regarding R.M. irrelevant to the issues before him at trial and therefore inadmissible at the trial.
(f) Joshua Cohen
36In the same vein, the trial judge would not let Joshua Cohen testify regarding R.M. because such evidence was irrelevant to the issues at trial. In the Reasons for Judgment, Beaudoin J. stated that Mr. Cohen acknowledged that he had no factual information with respect to S.N-D.’s parenting capacity. Again, we have not been persuaded that the trial judge made any error in ruling that the evidence of Joshua Cohen was inadmissible.
No Evidence of Harm
37In her final submissions, S.N-D. argued that the Society, and ultimately the courts, should not be allowed to take away her children in the absence of any concrete evidence that she had harmed them in any way. It is clear from this submission that S.N-D. does not understand the law relating to children in need of protection. A child can be found to be in need of protection if there is a risk that the child is likely to suffer physical harm caused by or resulting from a parent’s failure to adequately care for, provide for, supervise, or protect the child.6 This provision in the CFSA is forward-looking and speaks of current risk of future harm; it does not speak of past harm. It was on this basis that Beaudoin J. and Parfett J. concluded that A.N. and A.N-D. were children in need of protection and decided that it would be in their best interests to be made Crown wards.
Disposition
38For these Reasons, both appeals are dismissed, without costs.
Hackland, R.S.J.
Robertson, J.
Aitken, J.
Released: March 28, 2012
CITATION: S.N-D. v. Children’s Aid Society of Ottawa, 2012 ONSC 1888
DIVISIONAL COURT FILE NOS.: DC-11-1759/DC-11-1760
DATE: 2012/03/28
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N:
S.N-D. Respondent/Appellant in Appeal
- and –
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant/Respondent in Appeal
REASONS FOR JUDGMENT
Released: March 28, 2012
Footnotes
- Child and Family Services Act, R.S.O. 1990, c. C-11, s. 37(2)(b)(i).
- Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.
- We note that there was inadequate proof that proper notice was given to the provincial and federal governments in regard to this issue; nevertheless, we will easily dispose of it.
- Supra note 2. See Reference Re The Adoption Act, 1938 2 (SCC), [1938] S.C.R. 398; R. v. Dowdell, 1932 367 (BC SC), [1932] 3 W.W.R. 297 (B.C.S.C.), and R. v. Chief (1963), 1963 596 (MB QB), 42 D.L.R. (2d) 712 (Man. Q.B.) aff’d (1964), 1963 648 (BC SC), 44 D.L.R. (2d) 108 (Man. C.A.).
- Section 45(3): “A hearing shall be held separately from hearings in criminal proceedings”.
- Supra note 1.
