DATE: 20020930 DOCKET: C38300

COURT OF APPEAL FOR ONTARIO

IN THE MATTER OF the Child and Family Services Act, c. C. 11, R.S.O. 1990, amended by S.O. 1992, c. 32, s.3; S.O. 1993, c. 27, sched.; S.O. 1994, c. 27, s. 43(2); S.O. 1996, c. 2, s. 62; S.O. 1996, c. 25, s. 9(1); S.O. 199, C. 2

AND IN THE MATTER OF the child L.B.M, born January 9, 1993, P.B.M., born March 4th, 1995, D.B.M., born January 13th, 1996, and D.B.M, born October 18th, 1997

RE: FAMILY AND CHIDREN’S SERVICES OF GUELPH AND WELLINGTON COUNTY (Applicant/Appellant) – and – H.B. and P.M. (Respondent/Respondent in Appeal)

BEFORE: MORDEN, BORINS and SIMMONS JJ.A.

COUNSEL: Frank O. Brewster Q.C. for the applicant Family and Children’s Services

W. Gerald Punnett for the respondent H.B.

Catherine Bellinger for the children

HEARD: September 26, 2002

RELEASED ORALLY: September 26, 2002

On appeal from the decision of Justice Lorna-Lee Snowie dated May 21, 2002.

E N D O R S E M E N T

[1] [1] Having regard to the particular nature of the issues raised on appeal, we do not think that the proffered fresh evidence is sufficiently relevant to be admitted and, accordingly, we dismiss the motion for its admission.

[2] [2] In our respectful view, when read as a whole, the reasons of the trial judge are not capable of supporting a conclusion that they show palpable and overriding error. Justice Snowie erred in not considering the reasons as a whole. In paragraph 12 of her reasons, she focuses only on three paragraphs in the trial judge’s reasons (paras. 165-167) respecting Dr. Albin’s demeanour and objectivity, without taking into account several later paragraphs in the trial judge’s reasons in which the trial judge amply supports her conclusions based on Dr. Albin’s evidence.

[3] [3] In this regard, we note at the outset that the trial judge, before making her ultimate findings, placed in context her concern respecting Dr. Albin’s demeanour. This made it clear that she did not think it should, ultimately, have substantive effect. She then gave positive reasons for relying on his evidence (paras. 201-204). His evidence was supported by that of witnesses whose evidence the trial judge did accept. Quite apart from the analysis of the evidence of the professional witnesses, the evidence as a whole overwhelmingly supported the trial judge’s ultimate disposition.

[4] [4] The appeal is allowed, the judgment of Justice Snowie is set aside, and the orders of the trial judge are restored.

“J.W. Morden J.A.”

“S. Borins J.A.”

“Janet Simmons J.A.”