CITATION: Children’s Aid Society of the Niagara Region v. A.C., 2018 ONSC 1111
DIVISIONAL COURT FILE NO.: DC-17-897 DATE: 2018-02-26
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MATHESON, GLUSTEIN and DIAMOND J.J.
BETWEEN:
The Children’s Aid Society of the Niagara Region
Appellant
– and –
A.C. and B.R.
Respondents
Wayne Herter, for the Appellant
Nathalie Fortier, for the Respondents
HEARD at Hamilton: February 9, 2018
REASONS FOR DECISON
DIAMOND J.:
Overview
[1] In this proceeding, the appellant, The Children’s Aid Society of the Niagara Region (the “Society”), seeks leave to appeal, and if leave is granted, an order setting aside the temporary order dated October 23, 2017 of Henderson J. (“the Order”), which placed the respondents’ child (born on […], 2017) in their temporary care subject to specific supervision terms.
[2] Pursuant to section 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. 43 and Rule 38(3) of the Family Law Rules, the Society’s motion for leave to appeal was statutorily combined with and heard together with its appeal before the panel.
[3] The Society also brought a motion seeking leave to file fresh evidence, namely three affidavits. The respondents contested the motion, but put forward new affidavits as well, requesting that they be received if the Society’s motion for fresh evidence was allowed.
The Society’s Record
[4] A brief recitation of the salient facts presented to the Application judge by the Society is appropriate.
[5] The respondents are the biological parents of the child. They reside together and are in a relationship. The father works outside of the home. They live with the child’s paternal grandfather, J.D. (“Mr. D”), who has a history with the Society as a caregiver, and with Mr. D’s stepbrother and his girlfriend.
[6] The Society obtained and executed a warrant to apprehend the child three days after her birth because of child protection concerns related to the respondents. The Society’s plan of care proposed that the child be a ward of the Society for six months. The Society would provide various services to the respondents, and would facilitate access by the respondents.
[7] The Society relied on the mother’s history as a child that included protection concerns related to her mental health and sexual abuse, exposure to drugs, lack of supervision, and her own caregivers’ parenting ability. The mother has a learning disability and, according to the Society, has issues with depression and anxiety. The Society has observed and received reports related to concerns with respect to the mother’s ability to look after herself or a child in her care, although this contention was disputed by the respondents.
[8] The father, now 25 years of age, pled guilty to sexually inappropriately touching his half-sister in 2008, when he was 14 years of age and his half-sister was 4 years of age. Since then, in 2010, he was assessed as “low risk” to sexually offend.
[9] The respondents intended to stay at Mr. D’s home for a year following the birth of the child. Mr. D was part of the respondents’ plan to care for the child. There had been domestic conflict in the home involving Mr. D and his wife that continued up to September 2017. The Society claimed that there was reported drug use by Mr. D and others living in his home.
[10] There was an incident when Mr. D left his 13-year-old daughter with an individual named P.R. (“Mr. R”), who resided in Mr. D’s house for a short period of time. Mr. R was a sexual offender as against his own daughter and had been arrested for breaching terms of his release by residing with Mr. D. In response to the concerns raised by the Society in relation to his association with Mr. R, Mr. D did not deny leaving his daughter alone with Mr. R. There was no evidence that anything inappropriate transpired. The Society’s records also indicated that Mr. D began having sex with a 14 year old girl who subsequently gave birth to his child when she was 17 years of age. This child was the child that the father sexually touched in 2008.
The Respondents’ Evidence
[11] In response to the Society’s application, the respondents filed their own affidavits along with the affidavits of Mr. D, the father’s adult step brother and his 21 year old girlfriend (who both reside at Mr. D’s home).
[12] The mother gave evidence that she was intent upon consulting her family physician to address any potential post-partum depression issues, and that she and the father were attending parenting classes. The mother gave a very different account of what took place in the hospital following the birth of the child, refuting the Society’s evidence relating to how she handled the child. The Society’s evidence was based upon hearsay. According to the mother, the Society never once asked about the support system in place for the respondents, but instead waited until the child was born to “re-assess protection concerns” without any warning. Finally, with respect to the mother’s alleged mental health issues, the mother gave evidence that she does suffer from learning disabilities but none of those issues presented any difficulties in her day to day life.
[13] The father testified that since pleading guilty to the charge of sexual touching as a teen, he successfully completed the STOP and Anger Management programs, along with adaptive coping strategy sessions and related treatment. He has been fully discharged of his youth criminal record, has graduated high school and college and is employed on a full-time basis. Like the mother, the father took significant issue with the Society’s hearsay account of what took place in the hospital following the birth of the child.
[14] Mr. D gave evidence relating to his role in assisting the father through his criminal conviction, post-conviction rehabilitation treatment and probation period. Mr. D did have a history with the Society commencing when the father was criminally charged. No protection application was ever initiated by the Society with respect to Mr. D’s children. Mr. D detailed the strong supports within his family ready to assist the respondents, including the father’s stepbrother and his girlfriend.
The Order Sought to be Appealed
[15] The matter came before the Application judge on October 23, 2017. Pursuant to s. 51(2)(b) of the Child and Family Services Act, R.S.O. 1990 c. C-11 (“CFSA”), the Application judge ordered the child to be placed in the care of the respondents, pursuant to terms of supervision. Among other terms, he imposed a term that the child not be left in the sole care of the mother and/or Mr. D for more than two hours at a time until the Society approved. He contemplated that the Society would gradually approve longer periods of time as the mother learned to care for the child.
[16] The Application judge correctly set out the applicable legal test in section 51(2) of the CFSA, noting as follows:
“It is important to remember the legal test that is to be applied on a temporary care and custody hearing. Section 51(2) gives the court four possible orders that can be made. Subparagraphs 2(a) and (b) provide that the child could be returned to the parents in this case with or without a supervision order. Then Section 51(3) states that the court should not make any other order, and I quote, ‘…unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause 2(a) or (b).”
[17] In its application, the Society raised three separate concerns relating to the possible risk to the child: (1) the mother’s mental health issues, (2) the father’s prior conviction for sexual touching of a young child, and (3) the limited family supports for the mother and father. While the Application judge did find the presence of reasonable grounds to believe that there was a risk that the child would likely suffer harm if returned to her parents, he was not convinced that the Society discharged its burden to show that the child could not be adequately protected by attaching terms to any order returning the child to her parents.
[18] The Application judge addressed each of the concerns raised by the Society. With respect to the father, the Application judge found that since the father’s prior conviction for sexual touching he had significantly matured. He had graduated from college and was employed on a full-time basis. The Application judge found that although the father may be inexperienced as a parent, there was reliable evidence that he was able to learn and apply parenting skills.
[19] With respect to the mother, the Application judge found the evidence as to the nature and extent of the mother’s alleged mental health issues to be “mixed and somewhat vague.” The Application judge found that any parenting failings by the mother were likely “caused by inexperience rather than a mental health issue.”
[20] With respect to Mr. D, the Society argued before the Application judge that given the “question marks” surrounding Mr. D, there was limited family support for the mother and father. However, the Application judge considered the possibility that Mr. D may have permitted a friend charged with sexual assault to live in his residence and found that Mr. D had at least some sense of responsibility given his involvement in assisting the father during the time of the father’s previous criminal charge and conviction. As well, the two other adults living in the residence were found by the Application judge to be willing to assist the mother and father, something the Application judge considered to be a “luxury that we do not often see in child protection cases.”
[21] The Society sought leave to appeal the Order and brought a motion for an interim order for the child’s care and custody pending the disposition of the contemplated appeal pursuant to section 69(4) of the CFSA. The motion included a request for leave to file fresh evidence. The motion proceeded before Ramsay J. on November 1, 2017. Ramsay J. ordered that the child remain in the care and custody of the Society until the earlier of the disposition of the proposed appeal or February 12, 2018 at 12:00 p.m. At the hearing before this Court, the panel extended this order until 10 days after the release of these Reasons for Decision.
Test for Leave to Appeal
[22] The Society moves under Rule 62.02(4)(b) of the Rules of Civil Procedure for leave to appeal, taking the position that (i) there is good reason to doubt the correctness of the Order, and (ii) the appeal involves such matters of importance that leave to appeal should be granted.
[23] The threshold to be met under the first element of Rule 62.02(4)(b), ie. good reason to doubt the correctness of the Order, is whether the correctness is open to serious debate. It is not necessary to conclude that the Order is wrong or probably wrong.
[24] With respect to the second element of Rule 62.02(4)(b), as held in Mudry v. Danisch, 2014 ONSC 4335, temporary orders relating to interim custody and access typically meet the test of importance for consideration by an appellate court.
Test for Leave to file Fresh Evidence
[25] A party who seeks to introduce fresh evidence on an appeal may move pursuant to Rule 38(29) of the Family Law Rules and section 134(4) of the Courts of Justice Act for such relief by way of motion. That motion is to be made to the panel hearing the appeal.
[26] Pursuant to section 69(6) of the CFSA, a Court may receive further evidence relating to events after the appeal decision. As well, fresh evidence may be admitted on an appeal as set out by the Supreme Court of Canada in Palmer v. The Queen, 1979 (SCC). Those four criteria are as follows:
a. 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;
b. the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
c. the evidence must be credible in the sense that it is reasonably capable of belief; and
d. the evidence 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.
[27] However, in Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 83 (SCC), the Supreme Court of Canada held that in appeals dealing with child protection under the CFSA, the test is more relaxed.
[28] Recent Ontario appellate authority has also confirmed that the Palmer test is to be relaxed when hearing motions for leave to file fresh evidence in family law appeals where the interests of children are front and center. In such cases, the rules governing the admission of fresh evidence are to be applied more flexibly. As the Court of Appeal stated in Salehi v. Tawoosi, 2016 ONCA 986:
“We begin this part of our reasons by underlining that they do not apply to fresh evidence motions brought in family law appeals in which there are issues involving children. In order for the court to discharge its obligation to consider the best interests of the children, the rules governing the admission of fresh evidence in such appeals are relaxed.”
[29] As held in CAS of Haldimand and Norfolk v. S.L.T. and D.W.H., 2011 ONSC 4990 (S.C.J.), where there is fresh evidence, the appeal should first be considered without it and then, only if it would be dismissed, the impact of any admitted fresh evidence should be considered.
Standard of Review
[30] The parties agree that the standard of review is as established by the Supreme Court of Canada in Housen v. Nikolaisen 2002 SCC 33. There is no dispute between the parties that the issues on the appeal are of mixed fact and law. The Society does not assert that the Application judge made an error of law. Accordingly, the applicable standard is palpable and overriding error.
Decision
[31] As summarized above, the Application judge considered the Society’s three concerns relating to the possible risk to the child: (1) the mother’s mental health issues, (2) the father’s prior conviction for sexual touching of a young child, and (3) the limited family supports for the mother and father. The Application judge found the presence of alleged reasonable grounds to believe that there was a risk that the child would likely suffer harm if released to her parents without a supervision order. However, he further found that the Society had not discharged its burden to show that the child could not be adequately protected by attaching terms to any order returning the child to her parents. There was evidence to support these findings.
[32] With respect to the father, the Application judge found that the father had matured and while he may be inexperienced as a parent, there was reliable evidence that he was able to learn and apply parenting skills. With respect to the mother, he found that any parenting failings by her were likely caused by inexperience rather than a mental health issue. In addition, there was evidence showing sufficient family supports.
[33] The Society places great emphasis upon the following paragraph found at page 38, line 23 of the Application judge’s Reasons for Decision:
“I find that (the mother) on her own without any supervision may have some difficulties parenting (the child). I would certainly want to see more medical information about (the mother) before I left her alone in charge of (the child) without supports.”
[34] The Society argues that the above finding is inconsistent with the Application judge’s decision to impose restrictive terms that permit the mother to have access up to two hours alone with the child, and as a result the Application judge made a palpable and overriding error by imposing terms which were irreconcilable with the facts as he found them.
[35] I disagree. The Society seeks to take the above paragraph out of context. When read with the balance of the Application judge’s Reasons, it is apparent that what the Application judge was concerned about was leaving the mother and the father in charge of the child alone on a full time basis (i.e. not living with Mr. D and others as their “supports”). While the Application judge did express some concerns with aspects of the residential arrangements of the mother, I do not agree with the Society’s submission that a finding was made that the mother could not be alone with the child at all.
[36] The Application judge identified the proper test and applied it correctly. He considered the child’s age, vulnerability and inability to protect herself from harm, and imposed supervision conditions proposed by the Society that were agreeable to the respondent parents. With respect to the Society’s position that terms be imposed prohibiting the child to be left alone with the mother or Mr. D, the Application judge carefully considered the evidence and limited unsupervised access by the mother and Mr. D to two hours per day. I find that the Application judge made no palpable and overriding errors in arriving at such terms.
[37] The Society also argues that the Application judge failed to specifically state the plan(s) of care he applied, and specifically the plan(s) related to which person would be caring for the child in the absence of the mother or Mr. D. The Application judge afforded the parties an opportunity to negotiate agreeable supervision terms amongst themselves before he would impose them unilaterally. At page 45 of his Reasons, the Application judge was asked to resolve the outstanding supervision terms upon which the parties could not agree. He did just that, and as the Order did not have the effect of removing the child from a person who had charge before intervention, I find that his reasons were sufficient.
[38] Accordingly, in the absence of the proposed fresh evidence, the appeal ought to be dismissed. There remains the issue of the fresh evidence.
[39] The respondents did not object to the filing of two of the three sworn affidavits sought to be introduced by the Society, specifically the affidavits of Lisa Turcotte and Natalie Masterson, both child protection workers employed by the Society. The respondents’ position was accepted by the Court. Pursuant to section 69(6) of the CFSA, a Court may receive further evidence relating to events after the appealed decision. These two affidavits generally provide an account of events that have transpired since the temporary order of Ramsay J., and in particular observations of the child both in her foster home and during access visits with the respondents. As such the Society was granted leave to file the affidavits of Lisa Turcotte and Natalie Masterson.
[40] The Society further requests leave to file the affidavit dated October 26, 2017 of Sherri Moore (“the Moore affidavit”). Moore is a child protection supervisor employed by the Society. Moore interviewed and included information from three people – the minor (at the time) with whom Mr. D is alleged to have had sexual relations, the ex-wife of Mr. D, and an employee at the youth shelter where the mother resided on a number of occasions. Ms. Moore also obtained and included police information regarding Mr. D’s convictions, and information supplied by the Victim Witness Program regarding Mr. R. Some of the information from these third parties included alleged serious concerns about both Mr. D and Mr. R. Much of the Moore affidavit is hearsay from people who could not be considered to be impartial.
[41] In the event the Society’s motion for leave to file the Moore affidavit is granted, the respondents seek leave to file two additional affidavits of the father and Mr. D, both sworn October 31, 2017 in response to the Society’s motion for an interim stay before Ramsay J. These two further affidavits of the father and Mr. D dispute (or on occasion give further context to) the majority of the hearsay evidence included in the Moore affidavit.
[42] The respondents submit that the Moore affidavit is not fresh evidence, in that (a) all the information contained in this affidavit was available before the argument of the motion before the Application judge, (b) the subject matter of the Moore affidavit was already presented to the Application judge at the motion, and (c) the affidavit only provides further details about information that was already presented to the Application judge.
[43] In opposing the Society’s request for leave to file the Moore affidavit as fresh evidence, the respondents have filed the affidavit affirmed February 3, 2018 of Abrirahman Mohamed, a law clerk employed by counsel for the respondents. The Mohamed affidavit attaches numerous exhibits from the Society’s files in support of the respondents’ position that the evidence in the Moore affidavit was available to the Society as at the hearing date before the Application judge on October 23, 2017.
[44] The respondents argue that the evidence contained in the Moore affidavit could have been adduced before the Application judge at the original motion had the Society exercised due diligence and reviewed its own records. The Moore affidavit was prepared and signed mere days after the hearing before the Application judge, and for use at the Society’s motion for a stay of the order of the Application judge pending this appeal. At paragraph 16 of her affidavit, Moore states:
“Subsequent to the hearing and decision the Society conducted a further investigation and review of the affidavit material filed by the respondent’s (sic) and in particular of paternal grandfather Mr. D.”
[45] Other than for the purpose of bringing its motion before Ramsay J., there is no specific evidence in the Moore affidavit explaining why the Society decided to conduct a further investigation subsequent to the hearing before and decision of the Application judge and as such the Society’s evidence to support the first criteria of the relevant test is lacking. While the documentation provided by the Niagara Regional Police was not received by the Society until October 25, 2017 (i.e. two days after the hearing before the Application judge), there is no evidence to suggest that the Society’s request for that documentation could not have been made before the hearing date.
[46] The Society has led no evidence as to why, with due diligence, it could not have adduced the evidence contained in the Moore affidavit. The Society has the onus to lead such evidence. That said, in applying the Palmer test flexibly where a child’s best interests are squarely at issue, I am not prepared to dismiss the Society’s motion for that reason.
[47] The main fresh evidence sought to be relied upon by the Society at the hearing of the appeal was the documentation received from the police regarding Mr. D’s conviction for aiding Mr. R’s breach of recognizance when Mr. D allowed Mr. R to reside with Mr. D.
[48] While that evidence is arguably relevant and capable of belief, its relevance is marginal. Even though the fact that Mr. D was convicted of the above offence was not before the Application judge, he considered and addressed the issues raised regarding Mr. D, including his decision to allow Mr. R to reside temporarily in the home. This was one of many factors considered by the Application judge. I do not find that the documentation showing Mr. D’s criminal conviction, taken with the other evidence adduced before Henderson J, would have affected the result.
[49] The rest of the proposed fresh evidence contained in the Moore affidavit consists of hearsay based upon Moore’s interviews with third parties, and did not form part of the focal point of the Society’s submissions on the appeal.
[50] In my view, the proposed fresh evidence does not meet the governing test. It could not reasonably be expected to have affected the result. The Society’s motion for leave to introduce the Moore affidavits as fresh evidence is therefore dismissed.
[51] With respect to the Society’s request for leave to appeal, as that motion was heard concurrently with the appeal itself, it is somewhat artificial to separately consider the merits for the purpose of the test under Rule 62.02(4)(b). Given my findings, I would have seriously considered denying leave to appeal. However, even if leave to appeal was granted, the appeal is dismissed.
[52] In summary, leave to file the affidavits of Lisa Turcotte and Natalie Masterson is granted, the balance of the Society’s motion for leave to file fresh evidence is dismissed, and the Society’s appeal is dismissed.
Costs
[53] With respect to costs, the Society confirmed at the hearing that it is not seeking costs. Given the dismissal of the Society’s motions and appeal, if the parties cannot agree upon the issue of costs, they may exchange written costs submissions (totaling no more than four pages including a Costs Outline) in accordance with the following schedule:
a) the respondents may serve and file their costs submissions within 10 business days of the release of these Reasons, and
b) the Society shall thereafter have an additional 10 business days from the receipt of the respondents’ costs submissions to deliver its responding costs submissions.
Diamond J.
I agree _______________________________
Matheson J.
I agree _______________________________
Glustein J.
Released: February 26, 2018
CITATION: Children’s Aid Society of the Niagara Region v. A.C., 2018 ONSC 1111
DIVISIONAL COURT FILE NO.: DC-17-897 DATE: 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATHESON, GLUSTEIN and DIAMOND J.J.
BETWEEN:
The Children’s Aid Society of the Niagara Region
Appellant
-and-
A.C. and B.R.
Respondents
REASONS FOR DECISION
Released: February 26, 2018