CITATION: S.S. v. Children's Aid Society of the Districts of Nipissing and Parry Sound, 2008 ONCA 31
DATE: 20080118
DOCKET: C47351
COURT OF APPEAL FOR ONTARIO
WINKLER, C.J.O. and CRONK and EPSTEIN JJ.A.
BETWEEN:
S.S.
Appellant (Respondent in Application)
and
CHILDREN’S AID SOCIETY OF THE DISTRICTS OF NIPISSING AND PARRY SOUND
Respondent (Applicant in Application)
Sheilagh M. O’Connell, for the appellant
Paul E. Trenker, for the respondent Children’s Aid Society
Manjusha Pawagi, for the Office of the Children’s Lawyer
Heard: December 21, 2007
On appeal from the orders of Justice Robert P. Boissonneault of the Superior Court of Justice dated May 8, 2007, allowing an appeal from the placement order of Justice Gregory P. Rodgers of the Ontario Court of Justice, dated February 6, 2006, reported at 2006 ONCJ 32, [2006] O.J. No. 433.
CRONK J.A.:
I. Introduction
[1] This appeal arises from a Crown wardship proceeding involving infant twin boys, R.S. and D.S., born in September 2004.
[2] The background facts are horrific. While in the exclusive care of their young parents in the weeks immediately following their births, both children were subjected to extreme physical abuse by their father, J.S. Each child sustained life-threatening injuries, including skull fractures, brain injuries, retinal haemorrhages and fractures to their arms, legs and ribs. The injuries were consistent with ‘Shaken Baby Syndrome’, involving a high degree of force.
[3] On discovery of the abuse in early November 2004, when the boys were six weeks old, the twins were apprehended by the respondent Children’s Aid Society of the Districts of Nipissing and Parry Sound (the CAS).
[4] J.S. and the appellant S.S. – the children’s mother – were both charged criminally with aggravated assault and failing to provide the necessities of life to the children. After a preliminary inquiry, the appellant was discharged on all criminal charges and J.S. was committed for trial without opposition. A subsequent application by the Crown for certiorari regarding the charges against the appellant was dismissed, as was the Crown’s appeal against that dismissal. J.S.’s criminal trial is pending.
[5] On November 9, 2004, with the support of the Office of the Children’s Lawyer, the CAS applied for an order for permanent Crown wardship of the boys, without access by their parents, under the Child and Family Services Act, R.S.O. 1990, c. C.11.
[6] On December 15, 2004, on consent, the children were found to be in need of protection within the meaning of the Act and placed in the care of the CAS. They have remained in CAS care ever since, without access by their father or, until recently, by their mother.
[7] The placement hearing commenced on August 11, 2005 before Rodgers J. of the Ontario Court of Justice (the placement judge). At the hearing, the appellant sought the return of her sons to her care, under terms of supervision. J.S. did not participate in the proceeding.
[8] After a seven-day hearing, the placement judge found that J.S. had abused the children, that the appellant was “oblivious” to the abuse, and that the appellant delayed in seeking medical treatment for D.S. when his injuries became apparent because she was emotionally dominated by J.S. He further concluded that the appellant, with assistance, was capable of caring for and meeting the needs of the children. In his view, it was in the children’s best interests that they be returned to the care of their mother, on a graduated basis and subject to terms of supervision. Accordingly, on February 6, 2006, he ordered the return of R.S. and D.S. to their mother following a three-month period of CAS wardship and subject to a nine-month supervision order.
[9] The CAS, again supported by the Office of the Children’s Lawyer, appealed this placement decision. By orders dated May 8, 2007, Boissonneault J. of the Superior Court of Justice allowed the appeal, set aside the order of the placement judge, and directed that both boys be made wards of the Crown without access and committed to the care and custody of the CAS. The appellant now appeals to this court against the appeal judge’s orders.
II. Issues
[10] The appellant advances two main arguments in support of her appeal. She submits that the appeal judge erred: (i) by essentially retrying the case, thereby exceeding the scope of permissible appellate review; and (ii) by misapprehending the evidence before the placement judge concerning her past conduct in relation to the children and her present parenting ability.
[11] For the reasons that follow, I would allow the appeal. However, because I am also of the view that the placement judge’s decision cannot stand, a new placement hearing is required.
III. Discussion
(1) Appeal Judge’s Decision
[12] The placement judge’s finding that J.S. was the perpetrator of the abuse inflicted on the children was not appealed by the CAS. The appeal judge accepted this finding. However, unlike the placement judge, the appeal judge also held that the appellant had failed to care or provide for, supervise or protect the children and that her failure to do so was the result of her drug use. He also disagreed with the placement judge’s findings that, with assistance, S.S. could now properly care for her sons, that she did not know of the abuse being inflicted by J.S., and that her failure to seek prompt medical assistance for D.S. was influenced by her domineering and emotionally abusive spouse. In the appeal judge’s view, the evidence at the placement hearing did not support these key findings.
[13] With respect, it is my opinion that the appeal judge erred by substituting his own factual findings for those of the placement judge. Absent palpable and overriding error by the placement judge, his factual findings were entitled to deference by the appeal judge: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; and H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. This was especially true in this case because many of the placement judge’s critical findings with which the appeal judge disagreed were grounded in the placement judge’s observations and his appreciation of the credibility of the witnesses at the placement hearing, including the appellant: see Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 at paras. 359-60, leave to appeal to S.C.C. dismissed, [2004] S.C.C.A. No. 291.
[14] Yet, the appeal judge’s reasons contain no reference to this principle of deference. Nor do they reflect an appreciation of the limited scope of permissible appellate review of the placement judge’s decision. Instead, the appeal judge’s reasons indicate that he undertook an independent de novo assessment of the evidence at the placement hearing. This was an error.
[15] This defect in the appeal judge’s analysis was compounded by the fact that many of his own findings, which stood in stark contrast to those of the placement judge, themselves rested on an assessment of credibility. For example, contrary to the placement judge’s finding that the appellant failed to seek timely medical assistance for D.S. because of her vulnerability to the boys’ abusive and domineering father, the appeal judge held that the appellant’s explanation for her conduct was “incredible”, “feeble” and “unreasonable”. But, unlike the placement judge, the appeal judge did not have the advantage of hearing the appellant’s evidence first hand – or, indeed, the evidence of any of the witnesses, including that of the expert witnesses – nor the opportunity to observe the witnesses when they testified.
[16] Second, and perhaps more importantly, the reasons of the appeal judge indicate that he misapprehended critical evidence bearing on the appellant’s past and current ability to care for her children. The appeal judge found that the appellant continued to use illegal drugs after the birth of her children, that her failure to obtain assistance for the boys was “probably due to the lifestyle and drug environment” adopted by her and her husband, and that there was no evidence of either the appellant’s “present” drug use or regarding whether she had “addressed the ‘core’ problem of drugs”. He also viewed the appellant’s evidence as establishing that she observed J.S. “shaking the children” and dropping R.S. into his crib from a height of “one and one half feet”. These important findings were central to the appeal judge’s conclusion that the placement judge had erred by holding that the appellant was unaware of her husband’s abuse of the children, that she was capable of now caring for the children – with assistance, and that her past failure to obtain timely medical assistance for D.S. was explicable.
[17] However, it was conceded before this court that there was no evidence before the placement judge that the appellant had a continuing drug problem after the birth of her sons or that the consumption by her of drugs – in contrast to J.S.’s use of drugs – played any part in what befell the boys. Nor was there evidence that the appellant actually saw J.S. shaking the babies or that she saw J.S. drop R.S. into his crib from the distance described by the appeal judge.
[18] Moreover, the appeal judge framed the critical question before him in these terms: “The question on this appeal is whether [S.S.] protected the children as provided for in the Act.” This was not the issue for determination by the appeal judge. Where, as here, a placement decision was made following a full hearing, the requisite inquiry was whether the placement judge’s decision concerning the best interests of the children was tainted by legal error and whether it could be sustained on the evidence adduced at the placement hearing.
[19] In my opinion, the combined effect of these errors requires that the appeal judge’s decision be set aside.
(2) Placement Judge’s Decision
[20] However, I agree with the appeal judge, although for different reasons, that the placement judge’s decision cannot stand.
[21] As I have indicated, the placement judge found that the appellant was “oblivious to the harm being done” to her children and that her failure to obtain prompt medical help for D.S. was the product of her domination by, and vulnerability to, the boys’ abusive father. He also held that the appellant was capable of caring for and meeting the needs of the children, with assistance.
[22] Yet, on the appellant’s own testimony, she observed unexplained bruises and scratches on the children’s bodies. She also heard them engage, on several occasions, in unusual and abnormal crying. She also admitted that she was aware of J.S.’s frustration with the care of the children, his history of drug use and his predilection for violence when angry. She testified that she believed J.S. was using drugs while the boys were in his care and, importantly, that she saw J.S. angrily drop one of the children into his crib about one week before they were apprehended by the CAS. A review of the transcript of the appellant’s evidence at the placement hearing also indicates that, by her own admission, she was suspicious that the appellant might be harming the children and took steps to “catch him in the act”. When asked if she had any fear that J.S. was abusing the children, the appellant replied, “I think maybe a bit.”
[23] This evidence bore directly on the key questions of the appellant’s past and future ability to care for the children and her contemporaneous knowledge of the abuse. However, based on his reasons, I am unable to conclude that the placement judge took this evidence into account when holding that the appellant was “oblivious” to the abuse inflicted by J.S. and that she is now able to care for her sons, with assistance. If the placement judge was alert to this important evidence, his reasons provide no explanation for discounting it.
[24] Finally, based on his reasons, it is unclear whether the placement judge assessed the risk of future harm to R.S. and D.S. should they be returned to the appellant’s care. Given the evidence at the placement hearing of the appellant’s past parenting conduct and her admitted awareness of at least some of the injuries sustained by her sons, this was a necessary and critical inquiry when crafting a placement that was in the children’s best interests. The failure to undertake this risk assessment materially undercuts his con-clusion that it was in the children’s best interests that they be returned to their mother’s care.
IV. Disposition
[25] The appalling abuse of R.S. and D.S. is shocking and heart-wrenching. Any placement order concerning them must be based on their best interests and the necessity to protect them from future harm. Given those objectives, and the record before this court, I am compelled to conclude that a new placement hearing is required.
[26] Accordingly, for the reasons given, I would set aside the orders of both the appeal judge and the placement judge and direct a new placement hearing before a different judge of first instance. Pending the outcome of that hearing, I would direct that R.S. and D.S. remain in the care of the CAS, subject to such access rights in favour of the appellant as the CAS deems appropriate. In the circumstances, I would make no order as to the costs of this appeal.
RELEASED:
“JAN 18 2008” “Winkler C.J.O.”
“WKW” “E.A. Cronk J.A.”
“G. Epstein J.A.”