Court File and Parties
COURT FILE NO.: FS-18-00001097 DATE: 2019-06-07
IN THE MATTER OF the Child, Youth and Family Services Act, S.O. 2017, c. 14, Schedule 1: AND IN THE MATTER OF the children J.P.F. (d.o.b. […], 2005), and J.I. (d.o.b. […], 2008)
BETWEEN:
Children’s Aid Society of Toronto Applicant/Respondent on Appeal – and – S.A.P. Respondent/Appellant – and – M.I. Respondent on Appeal – and – OCL Respondent on Appeal
COUNSEL: Kenneth Atkinson, for the Applicant/Respondent on Appeal Lenard Kotylo, for the Respondent/Appellant Julie Ralhan, for the Respondent on Appeal Debra Snider, for the Respondent on Appeal, OCL
HEARD: May 15, 2019
Shore, J.
Warning
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87 …
Order excluding media representatives or prohibiting publication
(7) 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, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
WARNING – cont’d
Prohibition re identifying child
(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.
Prohibition re identifying person charged
(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.
142 …
Offences re publication
(3) A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Endorsement
[1] This is an appeal by the respondent mother, S.P., from the final order of Justice Pawagi, dated February 14, 2018, concerning her children, namely J.P.F., born […], 2005 and J.I., born […], 2008, in the child protection application conducted by the Children’s Aid Society of Toronto in the Ontario Court of Justice.
Overview
[2] The first child protection application was commenced by Durham Children’s Aid Society in November 2014, resulting in Ms. P being subject to a temporary supervision order.
[3] Ms. P and the children then moved to Toronto in December 2014.
[4] On February 26, 2015, the Durham Children’s Aid Society apprehended the children from the residence and care of Ms. P in Toronto and they were placed into foster care.
[5] Native Child and Family Services of Toronto commenced a child protection application, dated March 4, 2015, on behalf of Durham Children’s Aid Society, stating that the children were in need of protection based on sections 37(2)(b)(i), 37(2)(b)(ii) (risk of physical harm) and 37(2)(g) (risk of emotional harm) of Ontario’s Child and Family Services Act, R.S.O. 1990, c. C.11.
[6] The Durham Children’s Aid Society, by order of Justice Hughes, placed the children in the interim care of the respondent, M.I., on June 30, 2015. Mr. I is the biological father of J.P.F. and the step father of J.I. The children were six and ten years old at the time.
[7] Both children have remained in his care since June 30, 2015.
[8] The mother successfully completed several counselling programs addressing substance abuse. The boys had gradually increasing access to their mother and, by October 2016, they were seeing her every weekend except for the first weekend of the month, when they remained in Mr. I’s care.
[9] At some point in time, the file was transferred over to the Children’s Aid Society of Toronto.
[10] The Children’s Aid Society of Toronto filed a plan of care which proposed that, as a final disposition, the children be placed into the custody of Mr. I. The respondent mother filed an amended plan of care dated August 20, 2017 that sought to have the children returned to her custody, subject to a supervision order with conditions. All parties agreed that the children were in need of protection.
[11] On September 11, 2017, after reviewing a Statement of Agreed Facts, Justice O’Connell made a final finding pursuant to s. 37(2)(b)(i) and (b)(ii) of the Child and Family Services Act that the children were in need of protection.
[12] The matter was set down for a five day trial before Justice Pawagi to determine what disposition ought to be made having regard to the best interests of the children.
[13] Following a nine day trial in December 2017, Justice Pawagi released her decision dated February 14, 2018. Justice Pawagi made a final disposition order pursuant to section 57.1 of the Child and Family Services Act, placing the children in the custody of the respondent father, Mr. I. Ms. P was given access to the children every weekend, except the first weekend of each month, as well as extended time over school holidays.
[14] During the trial, the children were represented by the Office of the Children’s Lawyer, who also attended as Respondents in this appeal.
[15] The children’s mother, S.P., served and filed a notice of appeal, dated March 12, 2018, seeking to appeal Justice Pawagi’s Order of February 14, 2018, and remit the matter for another trial. She is also asking that the children be returned to her and that Mr. I have access every alternate weekend. Mr. I was also represented by counsel during the appeal.
[16] J.I.’s biological father, J.F., did not participate in the child protection proceedings and was noted in default on the first day of trial.
Grounds of Appeal
[17] The respondent mother raises the following issues on appeal:
a. Whether the judge misdirected herself and erred in law when she did not review that the mother’s position also included that her children were not in need of protection and that the children should be returned to her pursuant to section 57(9) of the Child and Family Services Act.
b. Whether the judge misdirected herself and erred in law in finding that the children were at risk of emotional harm in the future because she used the wrong test for risk of emotional harm.
c. Whether the judge misdirected herself and erred in law because she did not consider the extent and effect of services provided to the parent to allow her to improve the circumstances pursuant to section 57(2) of the Child and Family Services Act.
d. Whether the judge misdirected herself and erred in law because the judge did not consider whether the children could be returned to the care of the parent from whom they had been removed, with appropriate safeguards, pursuant to section 57(3) of the Child and Family Services Act.
e. Whether the judge misdirected herself and erred in law because she did not consider the appropriate weight to be placed on Mr. I’s criminal record, criminal associations and suspended driver’s license, as well as Mr. I’s continued combustible and impulsive behaviour, and the negative effect these factors have had and will have on the best interests of the children.
f. Whether the judge misdirected herself and erred in law because she did not consider the position of Ms. P that if the children were returned to her, she would not sever ties between the children and Mr. I.
Law and Analysis
[18] The parties agree on the standard of review on this appeal:
a. The standard of review applicable on a pure question of law is that of correctness. Where there has been an error of law, the appellate court is free to replace the trial judge’s opinion with its own.
b. The standard of review applicable to an error of fact is much stricter, being a “palpable and overriding error”. Findings of fact and inferences of fact may be set aside only if the trier of fact is found to be clearly wrong. The standard of review demands strong appellate deference to findings of fact at trial.
c. The standard of review applicable to questions of mixed fact and law can be summarized as follows:
i. If the question involves the trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error.
ii. If the question involves the trial judge’s interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.
[19] A trial judge’s decisions, particularly in matters of family law, should not be interfered with lightly by an appellate court absent an error in principle, a failure to consider all relevant facts, a consideration of an irrelevant factor or a lack of factual support for the judgement. In family law cases, appellate courts have a narrow scope of review due to the fact-based and discretionary nature of the decisions to be made.
[20] Appellate courts must give considerable deference in child protection court cases. The Ontario Court of Justice is akin to a specialized tribunal. Where the standard of appellate review is one of correctness, some deference should be granted to the learned trial judge: Children’s Aid Society of Toronto v. D.S., 2004 34414 (Ont. S.C.); Children’s Aid Society of the Regional Municipality of Waterloo v. C.A.D., 2011 ONSC 2253 at para. 67.
A. The appellant alleges that the judge erred in law by failing to fully review her position, which included that her children were not in need of protection, and that the children should be returned to her pursuant to section 57(9) of the Child and Family Services Act.
[21] First, the parties had already agreed that the children were in need of protection. This agreement was incorporated into the order of Justice O’Connell. The question before Justice Pawagi was whether an order was necessary to protect the children in the future. Whether Justice Pawagi erred in finding there was a need for an order to protect the children in the future is addressed under one of the other grounds of appeal below.
[22] Second, if Justice Pawagi erred in her understanding of Ms. P’s position, it would be an error in fact, not in law. The question therefore is whether Justice Pawagi made a palpable and overriding error in her finding (of fact) that Ms. P wanted a supervision order, as opposed to an order that the children be returned to her.
[23] As documented in the order of Justice O’Connell, Ms. P agreed that her children were in need of protection. Her plan of care, which was not changed prior to trial, clearly requested the children be returned to her subject to a supervision order with conditions. The Judge found that Ms. P was in agreement that the children were still in need of protection. There is no palpable or overriding error and this Court is going to defer to the trial judge.
[24] However, even if there were an error in this finding of fact, Justice Pawagi correctly turned her mind to the analysis under section 57(1), which states that a court may not make a disposition order unless the court “is satisfied that intervention through a court order is necessary to protect the child in the future”. The emphasis was added by Justice Pawagi at paragraph 18 of her order. This shows that Justice Pawagi properly considered the question outlined by section 57(9), which is whether a court order was necessary to protect the child in the future. Justice Pawagi then found that a court order was necessary to protect the children in the future, on the grounds that they would be at risk for emotional harm – a different risk than was considered in the initial protection proceeding. This finding was independent of Ms. P’s position.
[25] The appellant has failed to show a palpable and overriding error in fact.
[26] The appeal is dismissed on this ground.
B. The Appellant alleged that Justice Pawagi gave no basis for the finding that there was future risk of emotional harm to the children because she used the wrong test for emotional harm.
[27] Section 37(2)(g) of the Child and Family Services Act provides that:
A child is in need of protection where, there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i),(ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.
Section 37(2)(f) provides that:
The child has suffered emotional harm, demonstrated by serious,
(i) anxiety,
(ii) depression,
(iii) withdrawal,
(iv) self-destructive or aggressive behaviour, or
(v) delayed development.
[28] Justice Pawagi found that an order was necessary to protect the children in the future, on the grounds that they would be at risk of emotional harm if they were removed from the care of the respondent father. Justice Pawagi discussed the importance of emotional ties between a child and the child’s caregiver at paragraphs 22 and 23 of her Reasons, and referred to Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, a decision by the Supreme Court of Canada. The Supreme Court expressed, at para. 37, that the Child and Family Services Act “seeks to balance the best interests of the children with the need to prevent indeterminate state intervention, while at the time recognizing that the best interests of the child must always prevail”. Because of this goal, the best interests of the child is “an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time: C.M. at para. 37 [emphasis added].
[29] Justice Pawagi concluded that the children will suffer emotional harm in the future if they are removed from Mr. I’s custody after so many years, given the strong bond that has developed between them. There was a risk that the children would suffer emotional harm in relocating to live with their mother, as it would cause a change in residence and school.
[30] Further, Justice Pawagi concluded that leaving the children with Mr. I would be in their best interests. At paragraph 29 of the Reasons, it states “One of the most significant factors in this case is continuity of care (factor 7). The children have had many changes in their lives; being apprehended from their mother’s care, living in foster care and now living with their father. They are settled and doing well in his care. It would not be in their best interest to disrupt that placement”. As noted, the best interests of the child are a determining element of the decision as to the need of protection.
[31] Although the appellant refers to this ground as an error in law, at best, it is a mixed question of law and fact. In any event, the appellant has failed to prove either an error of law or of fact.
[32] The appeal is dismissed on this ground.
C. The Appellant alleged that the Judge misdirected herself and erred in law because she did not consider the extent and effect of services provided to the parent to allow her to improve the circumstances pursuant to section 57(2) of the Child and Family Services Act.
[33] Ms. P alleges that the reasons of Justice Pawagi do not include consideration for the services and any beneficial effects as provided by the Children’s Aid Society. I disagree.
[34] At paragraph 8 of her Reasons, Justice Pawagi specifically acknowledges that Ms. P “successfully completed” several counselling programs. The reasons proceed to list the programs completed by the mother. Further, paragraph 31 of the Reasons state:
In conclusion, I acknowledge that the respondent mother has made significant progress since her first involvement with society. She has overcome her involvement with drugs, escorting, and abusive partners.… The reality is, however, that during the time that this has taken, the children settled into their placement with their father. It would be in their best interests have that placement be permitted.
[35] The appeal is dismissed on this ground.
D. The Appellant alleges that the Judge misdirected herself and erred in law because the Judge did not consider whether the children could be returned to the care of the parent from whom they had been removed, with appropriate safeguards, pursuant to section 57(3) of the Child and Family Services Act.
[36] The trial proceeded solely on the issue of disposition. The legal test for making a disposition order is found at s. 57(1) of the Act:
Where the court finds that a child in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:
[37] Sections 57.1(1) and (7) of the Act read:
(1) Subject to (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
(7) Subsection 57(3) applies for the purposes of this section.
[38] Section 57(3) provides:
There 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.
[39] At paragraph 24 of the order, Justice Pawagi begins a careful review as to whether a custody order under section 57.1(1) would be in the best interests of the children and refers to the factors set out at section 37(3) of the Act. Justice Pawagi considers and evaluates the plans put forward by both Ms. P and Mr. I, along with the evidence presented by both the Children’s Aid Society of Toronto and the Office of the Children’s Lawyer. Paragraph 28 even starts off with “[i]n comparing the merits of the two plans…”. She concludes by specifically referring to the paramount purpose of the Act, the wording of which is very similar to section 57(3), in that section 1(2) reads:
The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are: … 2. To recognize that the least disruptive course of action that is available and that is appropriate in a particular case to help a child should be considered.
[40] Nonetheless, Justice Pawagi still concludes that it would be in the best interests of the children for the placement with Mr. I to be made permanent. As mentioned above, she clearly turned her mind to the balance between section 57(3) and the best interests of the children.
[41] There is no error in either fact or law.
[42] The appeal is dismissed on this ground.
E. The Appellant alleges that the Judge erred in law in not considering the appropriate weight to be placed on Mr. I’s criminal record, criminal associations and suspended driving license, as well as his continued combustible and impulsive behaviour and how they negatively can affect and have affected the best interests of the children.
[43] It is clear from both the record and the decision that a lot of evidence was presented at trial with respect to Mr. I’s past criminal record as well as his alleged abusive behaviour. All of the evidence was before Justice Pawagi at trial.
[44] Justice Pawagi specifically addresses these concerns at paragraph 25 of her reasons. She clearly turned her mind to these issues and still determined that it is in the best interests of the children to remain in Mr. I’s custody. The weight to be given to specific facts is part of the trial judge’s role in finding the facts. The primary role of a trial judge is to weigh and assess the evidence. As stated by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 25:
Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review.
[45] There is no palpable or overriding error in the weight given to this evidence.
[46] The appeal is dismissed on this ground.
F. The appellant alleges that the judge misdirected herself and erred in law because she did not consider that if the children were returned to their mother’s care she would not sever ties between the children and Mr. I.
[47] Justice Pawagi did not make any specific finding of fact on this issue. However, failing to do so is not an error.
[48] Section 37(3) provides that the Court “shall take into consideration those of the following circumstances of the case that he or she considers relevant” (emphasis added). There are thirteen circumstances that may be considered in determining the best interests of the child. Justice Pawagi reviewed many of the factors set out in paragraph 37(3) and highlighted those that she found most relevant. From the wording of the Act, it is clear that it is not an error in law to fail to refer to each and every factor.
[49] The appellant failed to prove an error of law or fact.
[50] The appeal is dismissed on this ground.
Order
[51] Appeal dismissed.
Shore, J. Released: June 07, 2019
