WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87 (8) Prohibition re identifying child — 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) Prohibition re identifying person charged — 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 (3) Offences re publication — 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.
AVIS Il s'agit d'un cas en vertu de la Loi de 2017 sur les services à l'enfance, à la jeunesse et à la famille et sous réserve des paragraphes 87(8) et 87(9) de la Loi. Ces paragraphes et le paragraphe 142(3) de la Loi de 2017 sur l'enfance, la jeunesse et les services, qui traitent des conséquences de la non-conformité, se lisent comme suit:
87 (8) Interdiction : identification d’un enfant — Nul ne doit publier, ni rendre publics des renseignements ayant pour effet d’identifier un enfant qui témoigne, qui participe à une audience ou qui fait l’objet d’une instance, ou un parent ou un parent de famille d’accueil de cet enfant ou un membre de la famille de cet enfant.
(9) Interdiction : identification d’une personne accusée — Le tribunal peut rendre une ordonnance interdisant la publication de renseignements ayant pour effet d’identifier une personne accusée d’une infraction à la présente partie.
142 (3) Infraction : publication — Quiconque contrevient au paragraphe 87(8) ou 134(11) (publication de renseignements identificatoires) ou à une ordonnance de non-publication rendue en vertu de l’alinéa 87(7) c) ou du paragraphe 87(9) et l’administrateur, le dirigeant ou l’employé d’une personne morale qui autorise ou permet cette contravention ou y participe sont coupables d’une infraction et passibles, sur déclaration de culpabilité, d’une amende d’au plus 10 000 $ et d’un emprisonnement d’au plus trois ans, ou d’une seule de ces peines.
Court File and Parties
COURT FILE NO.: 4701/21 DATE: January 11, 2022
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
P.W. Appellant – and – CHILDREN’S AID SOCIETY OF ALGOMA Respondent – and – H.M. Respondent
Counsel: S. McCooeye, for the Appellant J. Mealey, for the Respondent Children’s Aid Society of Algoma Appearing personally H.M. Jasmine Gassi Harnden, for the Office of the Children’s Lawyer
HEARD: December 1, 2021
Rasaiah J.
REASONS ON APPEAL
OVERVIEW
[1] This is an appeal by the appellant P.W. (“the father”) of the judgment of the Honourable Justice J.P. Condon (“trial judge”) dated January 27, 2021 following the release of his reasons (“Reasons”) following a 14-day trial.
[2] The trial judge found the children, E.W. born […], 2011 (“EW”) and F.W. (“FW”), born […], 2012, to be in need of protection under section 74 (2)(b)(i) of the Child, Youth and Family Services Act (“CYFSA”) 2017, S.O. 2017, c 14, Sch 1. He placed EW and FW in the custody of their mother, H.M. (“the mother”) with supervised access with the father subject to terms and conditions.
[3] In the notice of appeal, the father seeks that:
- The Protection Application be dismissed.
Alternatively
- The children be placed in the deemed care and custody of the father, and the mother pursuant to section 102 of the CYFSA, and that the children spend an equal amount of time with both parents.
Alternatively
- The children be placed in the care and custody of the father and the mother and that the children spend an equal amount of time with both parents, without any supervision or terms and conditions.
Alternatively
- The children be placed in the care and custody of the father and the mother and that the children spend an equal amount of time with both parents, subject to reasonable terms and conditions of the placement.
Alternatively
- The children be placed in the care and custody of the mother subject to reasonable terms and conditions, including an order that the children spend an equal amount of time with both parents.
Alternatively
The children shall have access with their father specified as to frequency, duration, location, and level of supervision, if any.
Any other remedy which this Honourable Court deems just in the circumstances.
[4] The father identifies in his notice of appeal, the following as the legal grounds for his appeal:
The trial judge erred in his application of section 74(2)(b)(i) of the CYFSA.
The trial judge erred in his application or failure to apply sections 74(3), 104 and 105 of the CYFSA regarding his decision regarding the father's in person access, and telephone access to the children.
The trial judge erred in his application of the best interests test as set out in section 74(3) of the CYFSA.
The trial judge erred in that he misapprehended admissibility of evidence, including but not limited to opinions of the Society workers who were not qualified as experts, and the opinions and perspective of Office of the Children’s Lawyer counsel (“OCL”) who was not qualified as an expert.
The trial judge erred in his application of judicial notice.
The trial judge erred in his application of a risk of emotional harm, when he did not make any such finding.
That the trial judge erred in that he misapprehended the evidence.
[5] The Children’s Aid Society of Algoma’s (“Society” or “CAS”) position is that:
The appeal be dismissed, and the trial judge’s decision be affirmed.
A child protection proceeding is conducted under the CYFSA which is remedial legislation which should be interpreted broadly with a view to achieving the purposes of the Act.
Section 1 of the CYFSA provides that the court is to "promote the best interests, protection and well-being of children.
The paramount purpose of the CYFSA is the best interests of children.
The court can (and should) choose a flexible approach that would admit evidence arising at any time up to and including during the trial.
Best interests of children are paramount.
To be overly technical could put children at risk.
Taking this approach (flexible approach) prevents multiplicity of proceedings.
To do otherwise could bring the administration of justice into disrepute.
The flexible approach facilitates an accurate assessment of present circumstances.
The flexible approach permits the parents as well to bring in evidence related to concerns.
A more rigid approach makes child protection proceedings more of a game.
A flexible approach is child focused and consistent with the remedial purposes of the Act.
The rigid approach is problematic. The more rigid approach reduces the hearing process to a judicial game with formal and rigid rules regardless of outcome and policy considerations.
The flexible approach focuses on the best outcome for the child within an evidentiary framework that fosters use of evidence for an appropriate outcome. It is obvious from the legislation that "risk" can be caused by a variety of different circumstances and conduct. In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.
The flexible approach follows the Supreme Court of Canada's direction in Catholic Children's Aid Society of Metropolitan Toronto v. M (C.), [1994] 2 SCR 165, para 195.
The facts support a finding that the children are in need of protection and require the disposition ordered.
The facts support the need for a flexible approach related to finding the children in need of protection.
Both the father and the mother were clearly in the joint charge of the children at the time of intervention by the CAS.
[6] OCL’s position is that:
The trial judge completed a comprehensive analysis of extensive evidence related to risk of harm, including the evidence of the father. He found that taken together, the evidence supported a finding of risk of harm due to the father’s anger and irrational behaviors which have continued throughout the past four years.
The trial judge did not make any palpable and overriding errors in his finding of facts or the weight he gave to the evidence before him, and he applied the correct legal analysis.
There are no errors or fact or law that would have a significant impact on the finding.
The facts demonstrate that the only order in the children’s best interests was to place them in the custody of their mother with supervised access to the father.
The court should dismiss the appeal and confirm the finding that the children are in need of protection and are likely to suffer physical harm while in the charge of the father.
The court should confirm the order for custody to the mother and supervised access to the father.
The children are doing well in their mother’s care, and while child protection concerns still exist, they have a loving and affectionate relationship with their father. They desire to maintain a relationship with him which is best facilitated through supervised access.
[7] The mother chose to make no submissions on this appeal, although offered the opportunity to do so.
STANDARD OF REVIEW
[8] The court owes a special duty to protect the safety and well-being of children. The best interests of the children are the paramount concern in child protection proceedings: Children's Aid Society of Toronto v. V.L., 2012 ONCA 890, 249 O.A.C. 388. at para. 15; Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at para 33.
[9] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 the standard of review is identified as correctness, for questions of fact, and palpable and overriding error, and for questions of mixed law and fact. When a legal principle can be extracted from the question of mixed law and fact, the standard for that question is correctness. When the issue is applying the correct legal principles to the facts, the standard is palpable and overriding error.
[10] Appellate courts owe a high degree of deference to the trial judge's decision. The trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings: Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at para 33.
ANALYSIS
Issues
[11] I do not find that the trial judge incorrectly applied s. 74(2)(b)(i) of the CYFSA.
[12] I agree that the trial judge considered a period during which the father had charge of the children jointly with the mother and went on to consider events and behaviour that followed, to and including the time of trial in making the finding. I do not find that this was an error. All this evidence was available for consideration with the flexible approach the trial judge adopted in respect of the finding. The approach was available to the trial judge to take.
[13] The trial judge was very much alive to the issue concerning the evidence he ought to consider on the application, specifically with respect to the finding, and which findings were being sought.
[14] With respect to the findings, the trial judge clearly communicated that he was adopting and applying the flexible approach. He accurately set out the law concerning the flexible approach. The trial judge recognized that there was some conflict in the caselaw by citing a case that refers to same. He preferred the flexible approach. It was open to the trial judge to prefer that approach. He did not err in his application of this approach.
[15] The flexible approach was available based on the principles driving the CYFSA and objectives of the Act, which must be kept in mind in child protection cases.
[16] The paramount purpose of the Act is clearly articulated in the Act, namely promoting the best interests, protection and well being of children. In addition, the other purposes emphasize action that is appropriate in a particular case with respect to the least disruptive course of action purpose [emphasis mine].
[17] I agree with Justice Czutrin, as he stated in Children’s Aid Society of Hamilton-Wentworth v K.R., [2001] O.J. No. 5754, para. 49, when he wrote:
… Restricting the relevant date for a finding to the start date is an interpretation that conflicts with the other sections of the Act and may be contrary to the best interests of protecting children from harm. It is contrary certainly to the direction of the Supreme Court of Canada,
and at para. 50:
… the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date. This is consistent with the act and certainly consistent with the Supreme Court of Canada decision. [Emphasis added.]
[18] I agree that to be overly rigid and technical could put children at risk.
[19] While I appreciate the father’s arguments, in my view, they advocate principles of interpretation that fail to incorporate the direction of the Supreme Court of Canada’s in Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165. When interpreting the predecessor legislation, the Supreme Court of Canada wrote:
As a starting point for this analysis, one must look at the Act as a global legislative scheme whose purpose and rationale should not be overshadowed by an unduly restrictive and strict interpretation of the sections of the Act, which would be at cross purposes with the whole philosophy of the Act.
[20] I observed that the trial judge was alive to the issue of who had charge of the children. He uses the word “charge” in respect of the finding and included a time frame wherein unquestionably the father, albeit jointly with the mother, had charge of the children. As such, in my view reading the Reasons as a whole, the trial judge was alive to that “element” as the father categorizes it. Further it appears the same argument was made at trial reading the trial judge’s summary of the father’s position.
[21] There is no question that the father and mother had joint charge of the children at the time of intervention.
[22] The father argues that the issue of who has “charge” of the children should be determinative of the evidence that should be considered to make the finding. First, I disagree generally, given the breadth/spirit of the flexible approach as aforesaid and outlined by the case authorities filed for my consideration. Second, this argument in my view, also fails to incorporate the aforesaid direction from the Supreme Court of Canada. I appreciate the argument for limiting state intervention purposively and that this is a goal. But again, paramountcy has been enunciated for the promotion of the best interests, protection and well being of children at the forefront. So, I do not see this as a case that “sometimes we forget what the statute sets out” or counterintuitive considerations were taken. This is a particular case where a rigid application could do a disservice to the paramount purpose of the legislation itself and the subject children.
[23] This was one of those cases where the circumstances of the particular case called for the application of the flexible approach, which circumstances subject to consideration could include and ought to have included, amongst other evidence, the evidence of the historical relationship between the mother and the father, the mother’s passive nature and fear of the father, the September 2017 motor vehicle driving incident (“driving incident”), the Form 2 occurrence from which no mental health care followed for the father, the access occurrences outlined in the evidence, the March incident, the “closing of the access centre” incident, the father’s court outbursts, the father’s behaviours in the courthouse, CAS workers’ communicated fears of the father, the father’s communicated thoughts concerning the mother, and the father’s considerable disdain and anger demonstrated towards the five women identified in the Reasons, one of whom included the mother.
[24] In sum, I find that the trial judge’s analysis started with the driving incident and accorded with the flexible approach, and in this case it was open to the trial judge to consider the evidence of the behaviour of the father that followed the driving incident in assessing the extent to which any need for protection alive at the initial stage had been resolved over the course of the litigation or whether other grounds for protection had emerged over time. It is clear from paragraph 95 of the Reasons that the trial judge was starting with the time the father was in charge of the children, which included the driving incident, an occurrence from which the finding was made.
[25] The court must assess the extent to which any need for protection found at the initial stage has been resolved over the course of the litigation or whether other grounds for protection have emerged over time: Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8 at para. 129.
[26] The fact that the children were at risk of harm initially when in the joint charge of the father and mother, as a result of the father’s behaviour, can support a finding of need for protection under s. 74(2)(b)(i) of the CYFSA, and even if resolved or ameliorated by placing the children in the charge of the mother as suggested by the father, does not change the court’s ability to make a finding of need for protection pursuant to s. 74(2)(b)(i) CYFSA: Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8 at para. 129.
[27] The driving incident would have been sufficient to make the finding the trial judge made. This is one of those cases, based on the aforementioned circumstances, where a rigid technical approach could potentially put children in need of protection and potentially at risk, potentially causing further CAS involvement that would not be in the best interests of the children if the flexible approach was not applied. It cannot be in the best interests of these children to create such a scenario. There was extensive evidence that the father in this case lacked and continued to lack insight regarding his behaviour up to and including the time of trial.
[28] I give no effect to the argument that the judge erred in his application of judicial notice, which I observed was with respect to the location of the driving incident. Whether it was an error or not it would be one of insignificance given the evidence concerning the driving itself, who was in the car, and the purpose of the manner of driving set out in paragraph 84 of the Reasons. Those factors in and of themselves would have been sufficient to support the finding.
[29] I do not find that the trial judge failed to apply s. 93(2) of the CYFSA.
[30] The evidence considered by the trial judge, the father argues related only to the disposition of the matter and therefore should not have been considered in determining if the children were in need of protection.
[31] The barrier set by s. 93(2) of the CYFSA as I read it is “evidence relating only to the disposition” [emphasis added].
[32] The trial judge found that the evidence he considered did not relate only to the disposition. The evidence related to the finding as he applied the flexible approach as aforesaid. The considerations fell into the context of analyzing the finding of risk of physical harm within the flexible approach.
[33] I do not find that the trial judge erred with respect to the disposition.
[34] I note first that when one looks at s. 101 of the CYFSA it is apparent even if a finding is made on considerations or evidence from a limited period or a more fulsome period, that it does not set the disposition. There remains the disposition that follows a finding, that could result in no order being made if the court is not satisfied that intervention through a court order is necessary to protect the child in the future.
[35] I observed the trial judge to apply the best interests test in determining the disposition.
[36] First, I do not find that the trial judge “added or found a risk of emotional harm to the disposition but failed to make the necessary and corresponding finding of emotional risk pursuant to s. 74(2)(h) of the CYFSA” as argued.
[37] The trial judge’s decision ought not to be considered in a vacuum when looking at the disposition, which is where I find this argument finds itself. In addition, it does not consider the applicable test.
[38] First, the trial judge was alive to the CAS request for a finding of emotional harm. In paragraph 73 of the Reasons, he identifies same. At paragraph 76, the trial judge acknowledges the father’s argument with respect to this request. At paragraph 129, the trial judge analyzes the request. He declines to make the finding in paragraph 146 of the Reasons. That finding was declined after a careful and thorough analysis of the evidence and the standard for making such a finding per s. 74(2)(h) of the CYFSA. Accordingly, in interpreting these reasons, the trial judge was alive to and in fact declined to make a finding risk of emotional harm.
[39] I acknowledge that in the disposition analysis, the trial judge considered the “emotions” and “emotional well being” of the children when he was assessing the appropriate disposition. At this stage, the disposition stage, it is important to remember that the best interests of the children factors are engaged.
[40] If the court has made a finding, which the trial judge did, and is satisfied that an order is necessary to protect the child in the future, the court shall make one of the stipulated orders in the children’s best interests.
[41] This appeal ground in my respectful view creates a suggestion that if an emotional harm finding is not made in a child protection application, that when determining a disposition, a judge should not consider the emotions/emotional well being of a child when determining an appropriate disposition.
[42] The disposition stage is a different stage altogether. Any circumstance of the case relevant to a child’s emotional needs is a statutory factor in determining his or her best interests. Accordingly, it is very appropriate and required, in determining the best interests of children to consider their emotions and their emotional well being when considering and deciding the disposition.
[43] As for the disposition itself, the disposition that the trial judge made was open to him to make pursuant to the CYFSA. There is no question when one looks at ss. 101, 102 and 104 of the CYFSA.
[44] There was more than ample admissible evidence to support the disposition on the record before him, including but not limited to the direct observations of the behaviours of the father from intervention to and including trial, as I briefly summarized above when I addressed the appeal issues concerning the finding. I see no error in the determination that joint parenting is not supported as being in the best interests of the children and also with respect to the access provisions, given the father’s attitude towards the mother and his lack of insight regarding his behaviours that appeared to be continue to be present at trial. It was appropriate for the trial judge to consider these factors. The evidence supported concern for the children if the in-person and telephone access were not controlled.
[45] I reviewed the appeal record against the decision. I am not satisfied that the father has established that the trial judge misapprehended admissibility of evidence, including but not limited to evidence of the Society workers that would alter the end result. The trial judge completed a comprehensive analysis of extensive admissible evidence related to risk of harm and disposition, including the evidence of the father. It is clear that the trial judge analyzed all of the evidence and the limitations. He noted the provision of different versions of events by the father and objections. The trial judge did not accept the father’s evidence and stated this clearly. The trial judge found the evidence of four Society workers to be credible along with other evidence. Many of the considerations relate to these workers observations and direct observations of the father, including the trial judge’s direct observations concerning the father. The noted that the trial judge found internal inconsistencies, and that the father’s evidence was delivered in a way that was almost always favourable to him and that left out details that were unflattering or negative. The trial judge was in the best position to observe the litigants and witnesses. The findings attract deference in these circumstances.
[46] Further, I am not persuaded that the trial judge incorrectly reviewed, treated and/or considered the submissions of OCL. The OCL’s role includes presenting the wishes and preferences of the children, which the OCL did then and at this hearing. Ultimately, it is for the trial judge to independently decide the issue, which I observed he did, considering all the evidence that was properly before him.
[47] For all the above stated reasons, the appeal is dismissed, and the finding and disposition are affirmed.
Rasaiah J. Released: January 11, 2022
