Court File and Parties

CITATION: B.H. v. Children’s Aid Society of Ottawa, 2017 ONSC 6590

DIVISONAL COURT FILE NO.: DC-17-2298

DATE: 2017/11/14

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT – ONTARIO

RE: B. H., Appellant

AND:

Children’s Aid Society of Ottawa, Respondent

BEFORE: Aitken, Mackinnon and Linhares de Sousa JJ.

COUNSEL: Deanna Paolucci; Lisa Sharp, for the Appellant

Danielle Marchand; Marie-Josee Ranger, for the Respondent

HEARD: November 1, 2017

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Endorsement

By the Court

Overview

[1] This is an appeal from the final order of a judge of the Superior Court of Justice dated March 13, 2017. The trial judge granted Crown wardship with no access for the purpose of adoption of the child (“M.”). The child was born on […], 2015. He has been in the care of the Society since birth.

[2] The appellant (“Father”) requests that the trial decision be set aside. He submits that the trial judge made errors of law, and errors of mixed fact and law. If successful the Father asks this Court to substitute an award of joint custody of his son, to himself and M.’s paternal aunt (“Aunt”). In the alternative, the Father seeks a sole custody order for the Aunt, who would then seek to adopt M.

[3] The respondent (“Society”) requests that the appeal be dismissed.

[4] The child’s mother (“Mother”) did not participate in these proceedings. She was incarcerated for committing an aggravated assault against the Father on December 29, 2015, and has not yet been released.

[5] The plan presented in the Father’s Answer and Plan of Care, amended January 25, 2017, was that M. would live with him full-time in Montreal (supplemented by a supervision order if necessary). During the trial he presented two additional plans, namely that he and the Aunt would have joint custody of M.; or that the Aunt would have custody with a view to adopting him.

[6] The trial judge rejected each of these proposals. He found the plans of care were “based more on hopes than realities”, that the Father was likely to relapse and abuse drugs in the future, that the Aunt was misinformed about the severity of the Father’s drug dependency, and that she could not adequately protect M. from the Father.

[7] On appeal, the Father is only advancing the second and third options he advanced at trial. He does not challenge the finding that the child is in need of protection. He concedes that at present he is unable to assume full custodial care of his son.

Issues

[8] The parties have framed the issues as follows:

1. Did the trial judge err in law by failing to provide adequate reasons for his decision?

2. Did the trial judge err in law and fact by

a. disregarding material evidence; or

b. misapprehending the facts?

3. Did the trial judge err in law by failing to properly consider whether an order for Crown wardship was the least intrusive course of action?

Court’s Jurisdiction

[9] A three-member panel of the Divisional Court has jurisdiction to hear the appeal based on the combined effect of s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and s. 69(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”).

Standard of Review

[10] The parties agree that the standards of review from Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, apply to this case. Accordingly, questions of law are reviewed for correctness. Questions of fact, as well as true questions of mixed fact and law, are not overturned without a palpable and overriding error.

Fresh Evidence on Appeal

[11] The Father is seeking to have various pieces of fresh evidence admitted. The evidence includes affidavits from the Father and the Aunt, updated drug screens, the Aunt’s adoption application, an “openness agreement” between the Father and the Aunt, and affidavits from family members and friends.

[12] The Society is seeking to have three affidavits admitted. The affiants are the Child Protection Worker, an Adoption Supervisor, and M.’s foster mother. This evidence is mainly focussed on the Aunt’s visits with M. and her adoption plan.

[13] The Supreme Court of Canada set out the criteria for admitting fresh evidence on appeal in Palmer v. The Queen (1980), 1979 8 (SCC), [1980] 1 S.C.R. 759, 196 D.L.R. (3d) 212, at p. 775:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

3. The evidence must be credible in the sense that it is reasonably capable of belief.

4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[14] The Father relied on CAS Algoma v. S. (T.), [2011] O.J. No. 856 (S.C.J.) in support of the submission that evidence of facts that could have been adduced at trial may still be admitted on appeal if the evidence is relevant to the child’s best interests. That court relied on the Supreme Court of Canada decision in C.M. v. Catholic Children’s Aid Society of Metropolitan Toronto, 1994 83 (SCC), [1994] 2 S.C.R. 165 where it approved the approach taken in Genereux v. Catholic Children’s Aid Society of Metropolitan Toronto, 1985 1969 (ON CA), [1985] 53 O.R. (2d) 163 (C.A.).

[15] Section 69(6) of the current CFSA limits further evidence on appeal to events “after the appealed decision.” Genereux was decided under s. 43 (8) of the Child Welfare Act, R. S.O. 1980, c. 66. That section provided that further evidence relating to matters both preceding and subsequent to the decision under appeal may be received at the appeal. The Court of Appeal held, at para. 6:

6 The judge on appeal, bearing in mind that he is dealing with the welfare of children, may determine that he will exercise his discretion and will hear further evidence so long as it is relevant to a consideration of the best interests of the child. The decision will be based upon the circumstances of the particular case. In some instances, the reasons of the provincial court judge may, for example, be founded upon a consideration of the safety of the child. In such a case, the judge on appeal might well decide to exercise his discretion by refusing to hear further evidence relating to the behaviour of the child or its bonding with the foster mother. If the judge on appeal so exercised his discretion for those expressed reasons, it is unlikely that an appellate court would interfere with his decision.

[16] The Court in Algoma did admit evidence of events occurring prior to trial, on the basis of relevance to the child’s best interests. In so doing it relied on the following extract from the C.M. decision, at para. 20 :

Although I doubt that Genereux, supra, intended to depart significantly from the test of Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, and Stolar, supra, its approach is to be commended. In my view, Genereux, supra, is not only consistent with the jurisprudence of this Court but is better suited to the child-centred focus of the CFSA, as it recognizes the importance of having accurate and up-to-date information on children whose fate often hangs on the determination by judges of their best interests. In light of this Court's broad discretion to admit fresh evidence and the wording and the spirit of the statute, Genereux, supra, is very attuned to the philosophy and objectives of the Act. Although it might be more in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance. If Genereux, supra, has enlarged the scope of the admission of fresh evidence on appeal, it has done so, in the present case at least, with regard to the final arm of the Stolar test, that is, whether the fresh evidence may affect the result of the appeal when considered with the other evidence. If that is so, and the fact that the admission of up-to-date evidence is essential in cases such as the one at hand, Genereux, supra, should be applied in cases determining the welfare of children.

[17] The reference to “the final arm” of the test is to the requirement that the evidence if believed, when taken with the other evidence adduced at trial, be reasonably expected to have affected the result. The Supreme Court was not directing its comments to the first arm of the test. It specifically doubted that Genereux intended to depart significantly from the Palmer test. Its specific ruling did apply the first arm of that test:

23 After reviewing the new evidence sought to be introduced before us, there is no doubt that it meets the test for admission. In particular, it could not have been adduced before, …

[18] The Father did not establish that evidence of events predating the trial decision were incapable with due diligence, of having been adduced at trial. The Father submitted it had not been adduced due to an agreement with the Society that the Aunt’s parenting abilities and her suitability as a placement for the child in the event the Father’s plan was not accepted, were not in issue. We were not persuaded that any such agreement existed.

[19] In the result, fresh evidence with respect to events occurring after the trial was admitted by way of affidavits from the Father and the Aunt, and from Dr. Marek as to his post-trial methadone treatment of the Father. Also admitted were an Ontario Adoption Application by the Aunt, the Father’s consent to it, and an Openness Agreement between the Father and Aunt, as evidence of their intention to proceed with an adoption of the child by the Aunt, if possible.

[20] The panel declined to receive tendered evidence that consisted of hearsay, speculation and inadmissible opinion.

[21] The panel allowed the Society’s motion to introduce fresh evidence as to events after the trial decision in order to bring the court up to date as to contact between the Father, the Aunt and the child. The panel also received affidavit evidence on behalf of the Society responding to assertions made on behalf of the Father with respect to the legal requirements pertaining to an adoption of M. by the Aunt, in Quebec, her province of residence.

Issue 1: Did the trial judge err in law by failing to provide adequate reasons for his decision?

[22] The Father submits that the Reasons of the trial judge are inadequate because they do not allow for meaningful appellate review or demonstrate the path taken through confused and conflicting evidence. The governing decision is R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 where the Supreme Court addressed the issue of adequacy of reasons in relation to appellate review. In summary the court held: “The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision.” See para. 55.8.

[23] The Father submits that the trial judge’s Reasons were insufficient to allow this court to review the correctness of the trial decision and did not demonstrate the path taken by the trial judge to reach his conclusion.

[24] We disagree. First, the Reasons addressed all statutory requirements of s. 53 (1) of the CFSA which provides as follows:

Reasons, etc.

53 (1) Where the court makes an order under this Part, the court shall give,

(a) a statement of any terms or conditions imposed on the order;

(b) a statement of every plan for the child’s care proposed to the court;

(c) a statement of the plan for the child’s care that the court is applying in its decision; and

(d) reasons for its decision, including,

(i) a brief statement of the evidence on which the court bases its decision, and

(ii) where the order has the effect of removing or keeping the child from the care of the person who had charge of the child immediately before intervention under this Part, a statement of the reasons why the child cannot be adequately protected while in the person’s care.

[25] Second, the trial judge made cogent findings adverse to the Father’s credibility on key issues of fact. He did not refer to the Father’s addictions expert by name, but was alive to her testimony. In paragraph 27 of his Reasons, the trial judge found facts which the Father did not challenge and which supported the trial judge’s conclusion, contrary to the expert’s opinion, and that the Father had not been in stable remission with respect to drug use. These facts were that the Father’s September 12, 2016 urine sample had been tampered with, his September 26, 2016 urine sample was suspicious, and admittedly not the Father’s urine, and that the Father tested positive for cocaine use on September 24, 2016 and again on October 3, 2016. The Father also admitted to misusing his methadone in January 2017 by using it to self-medicate.

[26] The addictions expert’s opinion was that six clean months, allowing for one slip, was the marker for stable remission. The trial judge was entitled to conclude on the facts he found that the marker had not been met by the Father in the six months leading up to the trial.

[27] The Father’s methadone physician also testified. He was questioned by the Father’s counsel in an effort to show that two consecutive tests, positive for cocaine, might be indicative of one slip only. He did not agree and answered that “generally for cocaine to persist in the urine for two weeks, it usually follows a period of sustained use. A one-time use does not typically lead to positive results two weeks later.”

[28] Accordingly, whereas the Father’s submission on appeal was that the key issue to be determined at trial was whether or not the Father had achieved stability, the trial judge made clear, supportable findings that he had not achieved stability prior to trial. The trial judge went on to consider, if the Father had been stable since the January methadone misuse, whether that period of stability would be sufficient to place his son in his full time care.

[29] We do not agree that there was other evidence supporting the Father’s case that the trial judge had to consider and reconcile in order to have provided adequate reasons. The trial judge did not mischaracterize the key issue for trial. He addressed that issue, namely whether the Father was stable enough to provide full time care to a child M.’s age in paragraphs 46, 47, 48, 50 and 58.

[30] The trial judge also addressed the two alternative plans that had been articulated during the trial, with respect to the Aunt. His Reasons make clear that he found the plan to be a recent one, that time had not enabled an assessment of her plan by the Quebec authorities to be completed, and that the Aunt seemed to be unaware of all of the Father’s problems and to minimize his responsibility for those she knew about.

[31] It is also very clear from his Reasons that the trial judge, based on detailed findings, did not believe the Father’s testimony. This case is not at all similar to the case the Father relied on, Dovbush v. Mouzitchka, 2016 ONCA 381, where the trial judge’s entire consideration of the central issue of credibility was:

28 …I found the Mouzitchkas credible. On the contrary, I found Dovbush and his brother, Faltschuk, to be incredible. They (the brothers) made assertions of fact which simply made no sense in the normal course of business conduct. Where the evidence differs as between the brothers and the Mouzitchaka's, I prefer the latter.

[32] We would not give effect to this ground of appeal.

Issue 2: Did the trial judge err in law and fact by (a) disregarding material evidence, or (b) misapprehending the facts?

[33] As a second ground of appeal, the Father submits that the trial judge made a “palpable and overriding error” of fact in that he disregarded material evidence in coming to his findings of fact on which his decision was based.

[34] Specifically, the Father submits that, in the first place, the trial judge failed to consider relevant evidence relating to the Father’s mental health (his PTSD and anxiety), the state of the Father’s stability in his drug abuse recovery at the time of the trial, and the fact that the Father was a victim of domestic assault.

[35] In the second place, the Father submits that the trial judge failed to assess the credibility of all of the evidence (particularly the evidence corroborating the Father’s evidence) in coming to his conclusion that the Father was not to be believed.

[36] The Father further submits that, in his assessment of the expert evidence given at trial about the Father’s stability in his drug abuse recovery, the trial judge erred in preferring the evidence of Dr. Wood over that of Dr. Lea in the area of addictions and mental health. The Father submits that Dr. Lea was the only qualified expert on addictions and mental health.

[37] Finally, the Father submits that the trial judge made a “palpable and overriding error” in that he misapprehended material evidence in coming to the finding of fact supporting his decision relating to the sustainability of the father’s drug abuse recovery.

[38] Specifically, the Father submits that a key issue at trial was the sustainability of the Father’s recovery from addictions and mental health issues. On this issue, by preferring the evidence of Dr. Wood over that of Dr. Lea, for the reasons stated earlier, he committed a palpable and overriding error.

[39] With respect to the second ground of appeal, the Society submits that it is a question of mixed fact and law and hence to be examined by this court on a narrow scope of review, allotting considerable deference to the decision of the trial judge.

[40] The Society submits that the trial judge’s factual conclusions relating to credibility and the sustainability of the father’s recovery could reasonably be supported by all of the evidence presented at trial.

[41] Furthermore, the Society submits that the trial judge did not misapprehend the evidence in preferring the evidence of Dr. Wood, who had been qualified as an expert in the fields of parenting and mental health.

[42] The Society submits that, based on the reasons delivered by the trial judge, one can only conclude that the trial judge appropriately considered and weighed all of the evidence presented at trial, both on behalf of the Society and on behalf of the Father. Even though he did not mention in his Reasons every witness by name and every piece of evidence, he was not required so to do.

[43] A full transcription of the proceedings was filed for this court’s global examination and review. In view of the second and third grounds of appeal, it was incumbent on this court to examine in detail some of the evidence presented at trial as it pertained to the material issues. Furthermore, there was also available for review substantial documentary evidence, such as police reports, that, as the trial judge recognized, was admitted on consent for the truth of its contents.

[44] The jurisprudence is clear and all counsel do not disagree that the trial judge in his or her reasons is not obligated to mention every piece of evidence presented at trial. The Reasons of the trial judge (specifically paragraph 6 and the lengthy findings of fact including a detailed factual background of the parents found in the Reasons for Judgment) clearly indicate that the trial judge had considered evidence from the whole panoply of witnesses at trial, including the two principal expert witnesses, the Family Court Clinic psychiatrist (Dr. Wood) and an addiction physician (Dr. Lea) although, in his opening paragraph under the heading of FACTS, he does not mention either one of them by name.

[45] We cannot find that the trial judge committed a palpable or overriding error in disregarding material evidence, particularly as it related to one of the key issues at trial, namely the sustainability of the Father’s drug abuse recovery and the state of his overall mental health. That the Father was the victim of a stabbing by the Mother and that the Father was in a very dysfunctional relationship with the Mother was not lost on the judge and was part of his factual findings.

[46] Considering all of the evidence, we find that the trial judge could reasonably decide that it was too short a time to conclude that the Father had attained remission and stability in his long recovery from severe drug abuse so that his plan to undertake the primary care of M. or even half-time joint care of M. would be a viable option in the child’s best interest.

[47] Findings of credibility by a trial judge, who has had the benefit of observing the witnesses being both examined and cross-examined ought to be given substantial deference. For the reasons given and found in paragraphs 27 and 35 to 40 inclusive of the Reasons for Judgment, the trial judge found that he could not believe and accept all of the Father’s testimony and, when it conflicted with other evidence, particularly written evidence, he preferred that evidence to that of the Father.

[48] We find the conclusion of the trial judge with respect to the Father’s credibility was not conclusory in nature, without explanation. His conclusion is grounded in the evidence. In his Reasons for Judgment the trial judge makes specific reference to that evidence in coming to his conclusion about the credibility and reliability of the Father’s evidence. There was also objective medical evidence before the trial judge strongly suggesting that the father may have frequently underreported his longstanding misuse of medication and addiction issues. Based on that evidence, the trial judge could reasonably have come to the conclusion that he did.

[49] For this reason we cannot find any error in the trial judge’s assessment of credibility.

[50] We have next considered the Father’s submission that the trial judge misapprehended the material evidence in his acceptance of the evidence of Dr. Wood with respect to the Father’s mental health and addictions. Contrary to the oral submissions of counsel for the Father, the evidence before the trial judge was that Dr. Wood was a qualified psychiatrist, tasked by the court to do a parenting assessment of the Father. As such, he was qualified by the court to also give an opinion with respect to the Father’s mental health as well as personality traits based on the Father’s psychological testing that took place during the Family Court Clinic assessment process. Dr. Wood provided his opinion in both his written report and in his oral evidence.

[51] It is clear in examining the complete evidence of both Dr. Wood and Dr. Lea, that Dr. Wood was fully cognizant of the fact that Dr. Lea had given evidence about the sustainability of the Father’s drug abuse recovery and that there was a belief on her part that the Father was not using substances. (Compendium of the Respondent in Appeal The Children’s Aid and Society of Ottawa, volume 1, page 363.). But Dr. Wood was also aware of evidence to the contrary, including the Father’s own reporting. All of this evidence led Dr. Wood to conclude in his written assessment:

“Furthermore, due to B.H.’s complex and extensive medical, mental health, and addictions history, we are pessimistic in regards to his long-term stability, thus impacting his ability to provide a stable consistent environment for M., particularly if distressed or exposed to stressors with minimal support. B.H. has also been reported to be inconsistent in his attendance of access visits and , when he does attend, his presentation is variable for unclear reasons, which also raises concerns regarding his ability to parent fulltime on his own.” (Book of Exhibits, volume 6, page 41)

[52] Dr. Wood was well qualified, as a parenting specialist and a mental health specialist, and so qualified by the court on an uncontested basis, to render such an opinion to the court. In doing so, he did not exceed the parameters of his qualified expertise.

[53] When the trial judge accepted the testimony of Dr. Wood that “paranoia is one of the side-effects of drug abuse”, that conclusion was supported by the evidence as a whole and was well within Dr. Wood’s expertise.

[54] In accepting this evidence and other evidence of Dr. Wood, the trial judge did not misapprehend the evidence before him. Dr. Wood’s evidence did not, in any way, necessarily completely reject the testimony of Dr. Lea concerning what she considered progress in her treatment of the Father and his stability. The evidence as a whole is more nuanced than that.

[55] Nor was the trial judge necessarily required to choose the testimony of Dr. Wood over that of Dr. Lea. Nor did he in his Reasons necessarily choose between them. Dr. Lea, in her testimony, in response to questioning about treatment and stability, also indicated that it takes a long time and it’s a long process (Compendium of the Respondent in Appeal the Children’s Aid Society of Ottawa, volume 2.)

[56] Consequently, on the whole of the evidence before him, the trial judge could reasonably come to the conclusion that even accepting that the Father, at the time of the trial was demonstrating some stability in his drug abuse recovery, it was too short a time to render his plan a viable one in the best interests of the child.

[57] Finally, in the fresh evidence admitted by this court in the form of the affidavit of the Father, dated 31 August, 2017, the Father clearly concedes that, because of his ongoing health issues, he is not in a position to care for the child on his own and would need the assistance of the Aunt. This concession is consistent with the trial judge rejecting the Father’s primary plan of care as a viable plan in the best interests of the child. In this court’s view, it also is consistent with the trial judge rejecting the Father’s alternate plan to have joint custody and care of M. with the Aunt because this plan, although presented with very little precision of how it would work, also necessarily involves, on a partial basis at least, that the Father be given the care of M., which the Father concedes he cannot do on his own.

Issue 3: Did the trial judge err in law by failing to properly consider whether an order for Crown wardship was the least intrusive course of action?

[58] As a third ground of appeal, the Father submits that the trial judge, in coming to his final decision, failed to properly consider the legislative requirements of the CFSA to consider the least intrusive order (ss.1(1) and (2) of the CFSA) that was in the best interests of the child (s. 37(3) of the CFSA), namely the option available to the court under section 57.1 of the CFSA, or other legislative options, to place the child in the care of the Aunt. The Father asks this court to replace the order of the trial judge with an order placing the child in the joint care of the Father and the Aunt or, alternatively, in the sole care of the Aunt for the purpose of having her adopt the child. The Father submits that this result, rather than Crown wardship for the purpose of adoption, would more appropriately be in the best interests of the child and would also be consistent with the legislative requirement (s. 57(4) of the CFSA) of seeking out an extended family placement wherever possible.

[59] With respect to the third ground of appeal, it is the position of the Society that the trial judge appropriately and substantially considered the legislative imperative to seek the “least intrusive course of action” and to apply the “best interests” test as found in ss. 1, 2 and 37(3) of the CFSA. Furthermore, the Society submits that, in specifically assessing the proposal of the Aunt on the court’s own initiative, the trial judge proactively considered and supported the potential for placement of M. with an extended family member pursuant to s. 57.1. The Society submits that, for the reasons given by the trial judge, he rightly concluded on the evidence, and could reasonably have concluded on the evidence, that such a plan was “unsuitable with respect to sufficiently mitigating the protection concerns in the foreseeable future” (paragraph 61 of the Reasons for Judgment).

[60] Finally, it is the position of the Society that the trial judge did not err in fully considering whether safeguards could be put into place to ensure that the Aunt and the extended H. family could protect the child from the Father’s potentially harmful future contact. In support of this submission, the Society relies on the fresh evidence admitted at trial relating to the child’s second birthday party in the foster home, subsequent to the trial, when the extended family, the Aunt included, did not protect the child from Facebook contact with his Father, contrary to the conditions governing that visit.

[61] The third ground of appeal concerned the submission that the trial judge incorrectly applied the best interests test and failed to correctly consider the least intrusive course of action available, namely to place the child with the extended family. Both the Father and the Aunt have demonstrated their wish to have M. placed in the care of the Aunt so that she may proceed with a family adoption of the child. Having M. placed in the care of the Aunt is the substituted order sought on this appeal by the Father.

[62] This court sees little merit in the argument. It is clear from the Reasons for Judgment that the trial judge was alive to the law and the legislative imperatives governing his decision. We cannot find any error, using the standard of correctness, in his statements of law relating to the principles on which his decision was to be made (paragraphs 52 to 54 inclusive of the Reasons for Judgment). This includes the following: the factors to be considered when examining the best interests of the child (s. 37(3) of the CFSA), the consideration of what help was given to the father by the Society to facilitate M. remaining in the care of the parent (s. 57(2) of the CFSA), the trial judge’s obligation to consider the least intrusive alternative plan of care that would still address the protection concerns in the best interests of the child (s. 57(4) of the CFSA), and a positive obligation to consider placement of the child with extended family, if possible, and if the protection concerns can be addressed (ss. 57(4), 37(3), 37(5) and 1(1)and (2) of the CFSA).

[63] In paragraph 55 of his Reasons for Judgment, the trial judge considered all of the plans of care that were before the court in light of these legislative principles, including the plan put forward to have M. in the care of his extended family, namely the Aunt.

[64] The evidence, including the fresh evidence permitted on this appeal, shows that, with respect to the plan of care to have the child placed in the custody of the Aunt, an assessment of her as a parent for the child and of her home could not be completed by the time of the trial, despite everyone recognizing that this assessment was required whether for a kinship placement or for ultimate adoption by the Aunt. The assessment could not be completed at the time of trial mainly for two reasons. The first, recognized by the trial judge, is because the identification of and commitment to this plan came up late in the child protection process. The second reason, also recognized by the trial judge, is that just prior to the commencement of the assessment, the Aunt separated from her spouse. As a result, before embarking on an assessment of the Aunt, the agency carrying out the assessment in Montreal required a period of adjustment to ensure stability in the home. That period of adjustment delayed any assessment until well beyond the time of the trial.

[65] While acknowledging the absence of an assessment of the Aunt, the trial judge, in keeping with his obligation to consider placing the child with extended family, took it upon himself to assess the plan on the basis of the evidence he had before him. For the reasons he gave, he found the plan to be insufficient in the circumstances to protect the child, in light of the Aunt’s lack of appreciation of and insight into her brother’s problems.

[66] Based on the totality of the evidence, including the testimony of the Aunt about her relationship with her brother, her role in supporting her brother, the role of other family members in the support of the Father, and how she came to know the details of his medical and addiction circumstances, and including the judge’s assessment of the Father’s credibility, it was reasonable for the trial judge to conclude that this alternative plan was not in the child’s best interests and that Crown wardship was the least intrusive disposition.

[67] In addition to this, the court cannot ignore the fresh evidence admitted on this appeal regarding the birthday party incident. This incident clearly damaged the trust and positive working relationship the Society had had with the Aunt until that point. The Society relies on this evidence as a reinforcement of the trial judge’s conclusion that this last alternative plan of care was not in M.’s best interests as it was insufficient to meet child protection concerns.

[68] This third ground of appeal also fails.

Disposition

[69] For all of these reasons, this court cannot find any error in law or fact to justify setting aside the judgment of the trial judge and substituting it with another order. The appeal on all grounds is dismissed.

[70] We also endorse the trial judge’s closing comments expressing concern with the passage of time and impact of delay on a young child. We note that M. has been in temporary care well beyond the statutory allowable duration. Far from being led into error by this concern, we agree with the trial judge when he said, “The same attention and energy now being directed towards lowering time to trial in the criminal sphere should also be turned to this sort of case.”

Costs

[71] The Society is the successful party and advised the court at the end of the hearing that it was not seeking costs. Accordingly, the appeal is dismissed without costs.

Aitken J.

Mackinnon J.

Linhares de Sousa J.

Date Released: November 14, 2017