DATE: 20031017
DOCKET: C39153
COURT OF APPEAL FOR ONTARIO
ABELLA, BORINS and ARMSTRONG JJ.A.
B E T W E E N :
THE CHILDREN’S AID SOCIETY OF OWEN SOUND AND THE COUNTY OF GREY
Clayton J. Conlan and John A. Kirby, for the respondents
Applicants (Respondents in appeal)
Catherine Bellinger, for the child
- and -
R.D.
Carol A. Allen, for the appellant
Respondent (Appellant)
Heard: May 13, 2003
On appeal from the judgment of Justice A. Donald K. MacKenzie dated October 25, 2002 made at Owen Sound, Ontario.
ABELLA J.A.:
[1] This is an appeal by R.D., the biological father of R.O.D., from the judgment of MacKenzie J. dismissing an appeal from a Crown wardship order of Andrews J. following a child protection hearing pursuant to s. 37 of the Child & Family Services Act, R.S.O. 1990, c. C.11. At the hearing, the Children’s Aid Society of Owen Sound and the County of Grey had sought an order of Crown wardship. Andrews J. found that the child’s mother was incapable of parenting the child and that it was “unrealistic to accept that [R.D.] is capable of performing responsibly [the role of parent] day in and day out over several years”. Consequently, he concluded that the only way to secure the child’s best interests was to order that he be made a ward of the Crown.
BACKGROUND
[2] R.O.D., born on May 29, 2001, was apprehended by the Children’s Aid Society after his birth at the Bruce Grey Regional Health Unit. His mother was B.H. and his father was R.D. Two older children of the mother had previously been made Crown wards without access and were placed for adoption. Of her three children, R.O.D. is the only child whose father is R.D.
[3] In October 2000, there was a Crown wardship hearing before Dunn J., involving B.H.’s second child A.H. At that time, R.D. had been living with the mother for a period of eight months. The issue at that hearing was her parenting capacity and whether R.D. was able to assist her in parenting A.H. Their relationship and his parenting capacity were therefore central in a parenting capacity assessment dated July 11, 2000 completed by a team led by Dr. Wayne Richardson for the Bruce Grey Children’s Services in anticipation of the wardship proceedings concerning that child. The assessment concluded that the mother was unable to parent, and that R.D., while able to parent a child, was not able to be of sufficient assistance to warrant A.H. remaining in the mother’s care. Dunn J. relied on this assessment in ordering that this child be made a Crown ward.
[4] Dr. Richardson, who met with both B.H. and R.D., was of the view that R.D. had no psychological or historical problems which would disqualify him as an effective father for this child. In particular, he observed that:
- [R.D.] appears as if he would be a good role model for traditional male values for his child; for example, being a hard working, even tempered individual who provides for his family. He appears to be honest and willing to disclose his past failings.
- [R.D.]’s responses to the parenting questions on the PASS were quite acceptable, indicating he has a basic knowledge about how to deal with many issues facing parents.
[5] Dr. Richardson, however, identified the following concerns as relevant:
- [R.D.] has conventional male values. One of those is the value of paid employment. He has a long history of employment and he has gone to the extent of travelling between Owen Sound and Alberta to maintain consistent employment. Many, and perhaps most of his social relationships are related to his employment. Paid work is very important to [R.D.]. It is central to his identity. It would be very, very difficult for him not to have paid employment.
- [R.D.]’s employment takes him from the home from 4 am to 4 pm. This means, unless he quits his present employment, he will be out of the house or asleep for much of the day and unavailable to be a support, let alone the primary caregiver.
Summary
In summary, being the primary caregiver for this child would be going against most of the basic values that are central to [R.D.]’s identity and that he has lived his life by for 38 years. Furthermore, we believe [R.D.] would find it impossible to make such an about face and be the primary caregiver [Emphasis added].
[6] It is important to note that this assessment involved a child of whom R.D. was not the biological parent. Crown wardship of A.H. was ordered not because of any perceived parental incapacities on R.D.’s part, but because he would not likely be the main caregiver, and the child could not be left alone with the mother.
[7] When R.D.’s child, R.O.D., was apprehended on May 30, 2001, the Children’s Aid Society immediately brought an application for Crown wardship without access. The child was placed in the temporary care and custody of the Children’s Aid Society, with the frequency of access to be at the discretion of the Children’s Aid Society. The father exercised access to the child for an hour twice weekly until the Crown wardship hearing took place on December 7, 2001, when the child was six months old. At that time, Andrews J. of the Ontario Court of Justice, based in large part on Dr. Richardson’s assessment of July 11, 2000, ordered that the child be made a Crown ward without access by either parent. The mother did not appeal this decision.
[8] The father appealed and brought an application to stay Andrews J.’s order. That application was heard and dismissed in February 2002. The father’s appeal of the Crown wardship order was heard by MacKenzie J. on October 17, 2002. He rejected an application by the father to introduce fresh evidence, dismissed the appeal, and confirmed the Crown wardship order.
[9] The main aspect of the proposed fresh evidence consisted of the fact that subsequent to the order of Andrews J., the father and the mother had separated, with the result that the father was seeking the return of his biological child whom he intended to care for as a single parent.
[10] Dr. Richardson was asked by the Children’s Aid Society in September, 2002 to prepare an updated report for the appeal of the Crown wardship order, giving his opinion about the father’s change in circumstances since he had separated permanently from the mother of the child, was currently unemployed, and proposed to stay home with the child. He was not asked by either party to again interview the father.
[11] Dr. Richardson’s key findings about this change were that while the father’s separation from the mother was undoubtedly a material change, and while he had the capacity to parent a child, it would be unwise to move the child given his close bond with his new family:
I do think that under the changed circumstances there would be no reason to disqualify [R.D.] from being the primary caretaker for a normal child. Being a male with such traditional values and with little experience being a direct caregiver he will probably have more difficulties and challenges than most people. However, I do not see any substantive reason that would mean he should not be permitted to be a primary caregiver for a normal child. For example, if [R.D.] were in a relationship in which his partner was pregnant and if the partner were to die in childbirth, I do not see any reason to apprehend that newborn child.
This does not necessarily mean that I think [R.O.D.] should be returned to [R.D.’s] care since we must be concerned about the best interests of [R.O.D.]. I am unable to form a definite opinion about that, in part because I have not assessed [R.O.D.] and do not know if he has any special needs, nor do I know his degree of attachment to his adoptive parents. Also, I have not assessed [R.O.D.’s] adoptive parents, and do not know their abilities and attachment to [R.O.D.]. As a general rule, changing placements or parents is not a good thing for children. Whether the benefits of being cared for by his biological father would be enough to overcome the problems associated with a transfer of custody is a matter of some debate. However, I am inclined to think that if [R.O.D.] is well-integrated into his foster home, if those parents and [R.O.D.] and any siblings have bonded well, and if those parents are meeting his needs, that it would probably be in [R.O.D.’s] best interest to remain in that home, especially in view of the fact that by the time a decision is made he will have lived in that home for all of his 17 months [Emphasis added].
[12] The central issue in this appeal is whether the appeal judge erred in refusing to admit the fresh evidence of the father that he and the child’s mother had separated in January 2002 after the decision of Andrews J., and that, therefore, there was a sufficient change in circumstances that he should be permitted to parent the child.
ANALYSIS
[13] Section 69(6) of the Child & Family Services Act, R.S.O. 1990, c. C.11 permits the appellate court “to receive further evidence relating to events after the appealed decision”. The test for determining whether further evidence should be admitted was set out by the Supreme Court of Canada in the case of Catholic Children’s Aid Society of Metropolitan Toronto v. C. M., [1994] 2 S.C.R. 165 at 190 where Justice L’Heureux-Dubé, in considering s. 69(6), set out the factors to be considered in determining whether further evidence should be admitted on appeal:
(a) could the evidence have been previously adduced;
(b) is the evidence highly relevant;
(c) is the evidence potentially decisive to a best interest determination; and
(d) is the evidence credible.
[14] In C.M., the new evidence sought to be admitted concerned the consistent assertions of the child, S.M., that she regarded her foster family as her real family and her refusal to see her birth mother. The child was seven years old at the time of the Supreme Court of Canada’s decision. The Children’s Aid Society (CAS) had become involved in October 24, 1986, when S.M. was one month old, and for the next few years she alternated between being under CAS supervision while residing with her mother, and being in the custody of the CAS. Despite repeated attempts, the bonding between S.M. and her mother was minimal.
[15] On December 14, 1989, the CAS brought an application seeking an order of Crown wardship without access for the purposes of adoption. The mother opposed the application and was successful in both Provincial and Divisional Court. On appeal, the Court of Appeal allowed a motion for fresh evidence made on behalf of the child, the respondent CAS, and the appellant. Ultimately, the CAS was successful at the Court of Appeal and the mother appealed to the Supreme Court of Canada from the Crown wardship order.
[16] In C.M., the fresh evidence illuminated the quality of the mother’s relationship with her daughter and, in particular, the fact “that S.M. consistently and repeatedly made it clear to anyone who would listen that she felt that her foster family was her real family and that she did not want to return to her birth mother.” The child had injured herself and made herself ill in order to avoid the access visits. Justice L’Heureux-Dubé, at p. 190, found that this evidence met the test for fresh evidence as “it could not have been adduced before, is highly relevant in that it enables the Court to make determinations on an accurate picture of the situation at hand, is potentially decisive as to S.M.’s best interests and is credible.”
[17] In this case, the appeal judge gave oral reasons for refusing to admit the appellant’s fresh evidence. At the time of the hearing, the child was one year and five months old and in the same foster home as his sister A.H., his mother’s second child who had been made a Crown ward by Dunn J. The appeal judge described the fresh evidence at p. 3 of his reasons as follows:
The evidence in question consists of the appellant’s affidavit and seeks to set out a material change in circumstances that has occurred subsequent to the order under appeal…The gist of the material change, the change in circumstances, is that the appellant since the date of the hearing no longer cohabits with the biological mother and has sought by virtue of that change in his lifestyle and circumstances to put forward, in essence, a change in the parenting plan, which is relevant for purposes of the appeal in the submission of counsel for the appellant.
[18] It is unclear from his reasons which threshold the appeal judge applied in refusing to admit the fresh evidence, but he appeared to come to the decision to refuse the fresh evidence for two reasons: the failure of the appellant to adduce the fresh evidence at trial and the fact that the fresh evidence was a new parenting plan. With respect, I think the appeal judge erred in his approach to the admissibility of the fresh evidence.
[19] It is clear that the fresh evidence could not have been adduced at the trial before Andrews J. in December 2001, since the separation from the child’s mother did not occur until a month later. Nor is there any doubt that the evidence is highly relevant or credible. The real issue in this case is whether the evidence that the child’s parents had separated was “potentially decisive” to a determination of the child’s best interests and, if it was, whether the appeal judge therefore erred in refusing to admit and rely on it.
[20] It is important to review the findings Andrews J. made in December 2001 before determining whether the evidence of the parents’ separation was, in fact, “potentially decisive”. His observations about the father were, simply put, not encouraging. In particular, he noted the following:
Both [B.H.] and [R.D.] have a dislike of the C.A.S., do not like to be supervised and appear to tolerate it only for the purpose of getting the child placed with them. [R.D.] was normally quiet but on occasion he became hostile, rude and threatening. On one occasion the C.A.S. worker was compelled to speak to him about his offensive body odour. His reaction was to become angry and swear…[R.D.’s] last job was driving a taxi. He stated he quit because he wanted to parent the baby 24 hours a day, in anticipation that the baby would be more likely returned if he was fully available. Under cross-examination, he acknowledged that he had lost his licence to drive because of unpaid fines and while under suspension he had been stopped again for driving.
[D]r. Richardson testified [at the trial before Justice Dunn] that “it would be psychologically impossible for [R.D.] to stay home and parent, despite his wanting to do so, and despite his commitment to [B.H.].” Dr. Richardson also testified at this trial. He saw no reason to believe that [R.D.] had changed. He acknowledged that [R.D.] was capable of parenting the child. But he believed that [R.D.] and [B.H.] do not appreciate the gravity of [B.H.’s] deficiencies; they both believe in their hearts that [B.H.] can parent the child. It is Dr. Richardson’s opinion that [R.D.] will trust the child to [B.H.] alone as time passes, thereby putting the child at risk.
Justice Dunn [the trial judge at the time of the Crown wardship hearing in October 2000 relating to A.H.] outlined a number of positive factors about [R.D.] and I accept those. At the same time, I find a real want of responsibility and sense of reality in him. For example, his outbursts of temper before the C.A.S. workers; his failure to pay fines of over $900.00; his driving under suspension.
[R.D.] made mention in his testimony of local relatives and friends who would help in the care of [R.O.D.]. Unfortunately, none came forward to testify on his behalf and I am unconvinced, on the evidence before this trial and the statement in the judgment of Justice Dunn, that they have the ability or commitment to provide the care that would be required.
[21] Given the inevitable fluidity in a child’s development, in most cases it would be beneficial for a reviewing court to have the most current information possible to assist in evaluating whether a change in the factual matrix of a previous best interests determination warrants interference with that finding. Indeed, that is the purpose of s. 69(6) of the Act. In my view, the threshold of “potential decisiveness” has been met in these circumstances. The fact of the father’s separation from the child’s mother is highly relevant and worthy of consideration by the court in assessing the child’s best interest.
[22] However, the separation, while relevant, is not decisive in these circumstances.
[23] The chronology is important. The father has not seen the child since December 2001. The child has been in care in the same foster home where his sister lives, and the foster parents propose to adopt him. He had been in the foster home for about seventeen months at the time of the appeal before MacKenzie J. Almost one year later, he remains with his foster family. The father and mother separated in January 2002. Notwithstanding that the father had a pending application for a stay which was heard in February 2002, he did not mention at that time that he and the mother were no longer living together. He did not do so until he swore his affidavit in July 2002 in support of his fresh evidence motion.
[24] The key paragraphs of the father’s affidavit state the following:
Prior to the trial of this matter I had been unemployed. I have been aware of Dr. Richardson’s assessment which indicates that I am psychologically unable to not work. I believe that I have a strong motivation to be a contributing productive member of society. I strongly believe that staying home with my son provides me with that sense of accomplishment and would be even more fulfilling than paid employment. I see no conflict between working full time in the paid workforce and staying at home to care for my son.
I have made efforts to improve my level of education since the trial in order that when I return to work I have a better chance of earning more income. Obtaining my GED and completing the program to become certified as a Bartender are examples of what I am working to achieve and have achieved in the past year.
While I am employed part time with Red Line Taxi this work is only one day per week. Should [R.O.D.] be placed in my care I am fully prepared to give up this employment.
[25] He made no reference to any proposed arrangements for the care of the child and, singularly, did not respond to any of the concerns expressed by Andrews J. in his December, 2001 reasons, or in the assessments by Dr. Richardson that there was little likelihood that he would ever be able to remain at home in the long term.
[26] Justice MacKenzie also had an affidavit, submitted on consent, from the adoption worker assigned to the child, Ms. Janet Furniss. Ms. Furniss noted that the child was outgoing, interacted well with other children, seeks out his foster parents for security when approached by unfamiliar adults, can be easily comforted and settled by his foster parents when he is frustrated or upset, and enjoys a very close relationship with his sister who resides in the same foster home. In her words “they are always together and most often participate in the same events. Both children play well with one another and appear protective and caring towards each other.” Her concluding paragraphs about the child make the following observation:
[R.O.D.] appears well settled and bonded within his foster family. He readily gives and receives affection from all the family members, and [R.O.D.] will seek out his foster parents when he is in need of comfort or support. Teething has been difficult for [R.O.D.], and he enjoys being held by one or the other of his foster parents to deal with his discomfort.
Overall, [R.O.D.] presents as a happy, healthy, well cared for child who is responding well to the routines, stimulation and nurturing provided to him by his foster parents. He appears secure and comfortable in his familial relationships, and he interacts positively with both foster parents and his sister.
[27] This uncontradicted evidence of the child’s secure and healthy environment is most significant in considering whether his best interests are best served by continuing the Crown wardship.
[28] In C.M. L’Heureux-Dubé J. at p. 201, stated:
The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding and the child’s desires, which the Act contemplates as well.
Within the realm of best interests perhaps the most important factor in the present case, as probably in many others, is regard to the psychological bonding of a child to her or his foster family. Section 37 (3) imports such considerations as the relevance of a child’s emotional needs, the significance of continuity of care and the child’s views. In C.C.A.S. of Metro. Toronto v. H. (K.) (1987), 6 R.F.L. (3d) 1 (Ont. Prov. Ct. (Fam. Div.)), reversed (1988), 21 R.F.L. (3d) 115 (Ont. Dist. Ct.), affirmed (sub nom. G. (C.) v. H.(J.) (1989), 23 R.F.L. (3d) 300 (Ont. C.A.)), in reversing the trial judge’s finding, the District Court concluded that the judge of first instance had failed to give sufficient weight to the evidence of the potential for long-term psychological harm that may arise from the child’s being separated from his psychological parents [Emphasis added].
[29] Similarly, at p. 203 she re-emphasized the importance of the child’s emotional tie to a foster family:
Among the factors in evaluating the best interests of a child, the emotional well-being of a child is of the utmost importance, particularly where the evidence points to possible long-tem adverse consequences resulting from the removal of the child from his or her foster family and the return to his or her birth parents.
[30] When applying these principles to the facts in C.M. L’Heureux-Dubé J. stated at p. 203:
According to the fresh evidence, as well as the whole of the evidence, there has been an early bonding with S.M.’s foster family which has been cemented in time. Finally her expressed desire to remain with this family cannot be ignored.
[31] Like the circumstances in C.M., R.O.D. is living in a foster home with his sister and the uncontroverted evidence is that he has adjusted well and is happy living in that home.
[32] I recognize that in C.M. the child was seven years old and able to express her wishes and desires. However, the length of time R.O.D. has been with, and bonded to his foster family, is not insignificant. The father separated from the child’s mother when the child was seven months old. The child has never been in the care of the appellant, having lived in the foster home practically since his birth on May 29, 2001.
[33] By the time of the appeal before MacKenzie J., the child was seventeen months old and fully integrated in his new home. It is impossible to see how it would be in the child’s best interests to be disrupted from this very positive environment at this time. As a result, even though the fresh evidence should have been admitted, I am not persuaded that the appeal judge would have reached a different result.
[34] Although I appreciate that one of the purposes of the Act is to restrict state intervention in favour of preserving the family unit, ultimately it is the best interests of the child that is paramount. As L’Heureux-Dubé J. stated in C.M. at p. 204, “furtherance and protection of the child’s best interests must take priority over the desires and interests of the parent.” Accordingly, I would dismiss the appeal.
[35] I see no reason, however, for the appeal judge to have awarded costs against the father in these circumstances. I would therefore grant leave to appeal the costs order, allow the appeal with respect to costs, and set aside the costs order in the amount of $3,500 against the father. The appeal is otherwise dismissed without costs.
RELEASED:
“OCT 17 2003” “R.S. Abella J.A.”
“RSA” “I agree Borins J.A.”
“I agree Robert P. Armstrong J.A.”