WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
45(7) The court may make an order,
(a) excluding a particular media representative from all or part of a hearing;
(b) excluding all media representatives from all or a part of a hearing; or
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
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.
45(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.
45(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.
COURT OF APPEAL FOR ONTARIO
2014 ONCA 692
DATE: 20141009
DOCKET: M43979 (C57823)
Cronk, Gillese and Tulloch JJ.A.
BETWEEN
Children’s Aid Society of London and Middlesex
Applicant
(Appellant/Responding Party)
and
C.D.B.
Respondent
(Respondent/Moving Party)
and
L.D.B.
Respondent
(Respondent/Cross-appellant/ Responding Party)
and
The Children’s Lawyer
Respondent
(Respondent/Responding Party)
Sharon Hassan and Hamoody Hassan, for the moving party
Donna A. Wowk, for the responding party Children’s Aid Society of London and Middlesex
L.D.B., appearing in person
Jane Long, for the responding party The Children’s Lawyer
Heard: September 8, 2014
On a motion to quash an appeal from the order of Justice R. John Harper of the Superior Court of Justice, Family Court Branch, dated September 25, 2013, with reasons reported at 2013 ONSC 5556.
Cronk J.A.:
I. Introduction
[1] C.D.B. and L.D.B. married in 1990 and separated in April 2010, approximately 20 years later. They have three sons: M.D.B., born on September 11, 1994; R.B., born on May 13, 1997; and M.X.B., born on March 12, 2005.
[2] In April 2010, L.D.B. commenced proceedings for a divorce, custody of the children of the marriage, spousal and child support and division and equalization of property.
[3] In September 2010, the Children’s Aid Society of London and Middlesex (the “Society”), applied under s. 37 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”) for a determination that C.D.B. and L.D.B.’s three children were in need of protection. At the time of the protection application, the children were 15 (M.D.B.), 12 (R.B.) and 5 (M.X.B.) years of age, respectively.
[4] The child protection application and the matrimonial proceeding were heard together. Following a 154-day hearing that spanned one and one-half years (October 2011 to May 2013), the trial judge dismissed the protection application and granted various relief in the matrimonial proceeding, including custody of the two youngest children to C.D.B.
[5] The Society appealed from the dismissal of the protection application. L.D.B. initially cross-appealed and later, with leave of this court, filed an Amended Supplementary Notice of Appeal from several aspects of the trial judge’s disposition in the matrimonial case relating to custody and child support. Both appeals are pending in this court.
[6] C.D.B. moves to quash the Society’s appeal. He argues, among other matters, that there are no existing child protection concerns relating to any of the children of the marriage. C.D.B. submits that absent any “reported, investigated and verified” current protection concerns, a protection order is not in the best interests of the children and the Society has no basis on which to seek such an order in relation to any of the children.
[7] The Society and the Children’s Lawyer resist the motion to quash. L.D.B., although present for oral argument, took no position on the motion.
[8] The Society contends that the trial judge erred in his determination of the child protection application, on numerous grounds. It argues, supported by the Children’s Lawyer, that the trial judge’s ruling on the protection application raises issues of general importance regarding child protection proceedings that require consideration by this court.
[9] For the reasons that follow, I would allow the motion to quash the Society’s appeal.
II. Background in Brief
[10] The trial judge’s comprehensive reasons (100 single-spaced pages and 420 paragraphs) describe this family’s history and conflicts at length. For the purpose of this motion, it is unnecessary to review that factual background in detail. The pertinent facts may be summarized as follows.
[11] C.D.B. and L.D.B. met in 1987 when C.D.B. was visiting Canada from England. They married in Canada in 1990. Shortly thereafter, they moved to England and started a family. Their first child, M.D.B., was born in September 1994, and their middle child, R.B., was born approximately three years later. In 2002, the family moved back to Canada. M.X.B., the youngest child, was born in 2005.
[12] By 2009, marital difficulties had emerged between C.D.B. and L.D.B. C.D.B. claimed, and the trial judge accepted, that L.D.B. began to use alcohol to excess in 2009, which contributed to “erratic behaviour” on her part, including “uncontrolled rages, swearing [and] yelling” to which the children were exposed. Nonetheless, by the fall of 2009, C.D.B. and L.D.B. were considering moving back to England with their children.
[13] Several pivotal events occurred in the winter and spring of 2010. First, C.D.B. suspected that L.D.B. was having an affair. This led to altercations between the couple and between C.D.B. and a third party.
[14] Second, in early April 2010, C.D.B. took M.D.B. and R.B. to England in order for M.D.B. to participate in tryouts for a soccer academy in the United Kingdom, with a view to a professional career in soccer. They were scheduled to return to Canada on April 22, 2010. However, they were unable to do so because volcanic ash drifting over the Atlantic Ocean caused flight cancellations.
[15] On April 27, 2010, L.D.B. commenced proceedings for divorce, custody of the children of the marriage and exclusive possession of the matrimonial house. She also brought an urgent ex parte motion, seeking the immediate return of the children from England, with police assistance, and a restraining order against C.D.B. because he allegedly was “emotionally abusive, controlling and coercive”.
[16] As it happens, the trial judge heard L.D.B.’s ex parte motion. He granted an order for the return of the children to their mother’s custody in Ontario.[^1]
[17] After these events, the matrimonial strife between C.D.B. and L.D.B. intensified. The following examples illustrate the deepening conflicts in the family:
While in their mother’s care, M.D.B. and R.B. sent several texts to their father stating that their mother had been drinking and that they were scared. Their father told them to call the Society. In May 2010, the boys, C.D.B and others called the Society, expressing concern over L.D.B.’s drinking and indicating that the boys were afraid;
A protection worker at the Society contacted L.D.B. on May 20, 2010. L.D.B. told her that her husband was charged with uttering threats and that her son M.D.B. was angry that she withdrew as her husband’s surety;
On May 26, 2010, Campbell J. of the Superior Court of Justice reversed the trial judge’s interim custody order of April 27, 2010 and authorized C.D.B. to return to reside in the matrimonial home with L.D.B. and the children;
On June 18, 2010, L.D.B. went to the police, alleging that C.D.B. threw a basketball at her. C.D.B. was arrested for assault with a weapon, but then released when the police concluded there was insufficient evidence to proceed with the charge;
In July, 2010, L.D.B. moved out of the matrimonial home to reside with her parents in Chatham, Ontario. From that date until the conclusion of the matrimonial proceeding, M.X.B. primarily resided with his mother in Chatham; and
On August 30, 2010, L.D.B. and M.D.B. became involved in a physical altercation with each other, in a park where L.D.B. was visiting with the children. L.D.B. asserted that M.D.B. hit her several times on the head with a rock and attempted to drown her when they fell into a stream. She maintained that C.D.B. encouraged him to do it. M.D.B.’s version of events was markedly different. He said that his mother lunged at him with a knife and he hit her with a rock in order to defend himself when they fell into the stream.
M.D.B., then 15 years of age, was charged with assault with a weapon and assault causing bodily harm. He was later charged with attempted murder in respect of the same incident.
At the subsequent matrimonial trial, the trial judge accepted M.D.B.’s account of these events, in part because he found it more consistent with the testimony of a witness who had observed the altercation.[^2]
III. Proceedings Before the Trial Judge
[18] The combined child protection and matrimonial hearing commenced in October 2011. By then, R.B. was living with his father, M.X.B. was living with his mother, and M.D.B., who was still facing the criminal charges described above, was living with his surety. In January 2012, M.D.B.’s bail terms were varied and he again began to reside with his father.
[19] It is an understatement to describe the matrimonial and child protection hearing as high-conflict litigation of an extraordinary duration. L.D.B. alleged that her husband was emotionally and physically abusive. She also claimed that he was a murderer who had used his eldest son in an attempt to kill her. C.D.B. denied these allegations. C.D.B., M.D.B. and R.B. maintained that, from 2009 onwards, L.D.B. drank alcohol excessively, causing her to behave in an erratic and dangerous manner.
[20] The trial judge soundly rejected L.D.B.’s claim of emotional and physical abuse by her husband. He found that she had misrepresented herself as a helpless victim of domestic violence who was controlled in every way by C.D.B. and that she had “manipulated the system” with ever-expanding allegations of abuse by C.D.B. He held that her assertions of abuse and her representations that C.D.B. was controlling and someone to be feared were not believable and that her testimony concerning her altercation with M.D.B. did not accord with reality. He also found that L.D.B. had a significant problem with alcohol that she could not control and that she had materially misrepresented the level of her alcohol use and her yelling and swearing at the children.
[21] In stark contrast, the trial judge accepted that C.D.B. provided proper care for the children, in a dedicated manner, and that the children’s best interests and the restoration of normality in their lives would be furthered if they were placed in his care.
[22] The trial judge was expressly critical of the Society’s approach to the conflict in this family and the litigation. He concluded, among other matters, that the Society had failed to conduct itself in a manner consistent with its mandate, authority and duties as a statutory litigant. He found that the Society did not act impartially or in the best interests of the children but, rather, acted throughout as an advocate for L.D.B. Further, it did not seriously consider or properly investigate the allegations of M.D.B., R.B. and their father that the boys were scared of their mother because of her excessive drinking and associated behaviour.
[23] In the end, the trial judge ruled that M.X.B. should be placed in the custody of his father in the matrimonial home, with access in favour of L.D.B. M.X.B. returned to live with his father on September 27, 2013. The trial judge ordered no access to R.B., unless R.B. requested such access.[^3]
[24] The trial judge rejected the Society’s claim that the children of the marriage were in need of protection from C.D.B. To the contrary, he concluded that the children would be in need of protection if they were placed in their mother’s custody. Having regard to his custody ruling in the matrimonial proceeding, he therefore dismissed the Society’s child protection application.
[25] The trial judge also awarded costs to C.D.B., on a full indemnity basis. He found that both L.D.B. and the Society acted in bad faith in the conduct of the litigation. He ordered that the Society pay costs to C.D.B. in the amount of $1,410,449.50 and that L.D.B. pay costs to C.D.B. in the sum of $604,478.36.
[26] Both the Society and L.D.B. have sought leave to appeal these costs awards. During oral argument of this motion to quash, C.D.B. clarified that he does not challenge the Society’s right to seek leave to appeal the adverse costs award made against it and, if leave be granted, to appeal from that award. Rather, the sole focus of C.D.B.’s motion to quash is the Society’s proposed appeal from the dismissal of the child protection application.
IV. Issue and Discussion
[27] In its Notice of Appeal, the Society advances 146 grounds in support of its contention that the trial judge erred in his disposition of the child protection application. The Society seeks an order that all three children of the marriage were children in need of protection within the meaning of the Act as of September 10, 2010 – the date of issuance of the Society’s protection application. In addition, the Society asks: 1) that “a disposition be made in the best interests of the youngest child, [M.X.B.], in accordance with the principles listed in s. 37(3) of the [Act]”; 2) in the alternative, that an order be made requiring a new protection hearing concerning M.X.B.; or 3) in the further alternative, that a new protection hearing be ordered regarding all the children, before a different trial judge. The Society makes no specific mention of M.D.B. in its Notice, and seeks no specific disposition in relation to R.B.
[28] In light of the grounds raised and the relief sought by the Society on appeal, I would frame the sole issue on this motion to quash as follows: is there any basis for declaring any of the children of the marriage to be children in need of protection under the Act, either now or at the time of commencement of the child protection application in 2010?
[29] On the record before this court, I see no basis for declaring any of the children of the marriage, including M.X.B., to be children in need of protection within the meaning of the Act, either now or in September 2010. It follows that I would allow C.D.B.’s motion to quash. I reach this conclusion for the following reasons.
[30] First, as I see it, the merits of the Society’s appeal are tenuous, at best. The trial judge concluded that the children of the marriage were not in need of protection from their father. He found that the children would be in need of protection only if they were placed in the custody of their mother. Since the trial judge also concluded that custody of the two youngest children should be awarded to C.D.B., he dismissed the Society’s protection application. Thus, in the trial judge’s view, the Society had failed to demonstrate that any of the children were in need of protection as of the date of his decision (September 2013).
[31] The trial judge made dozens of factual findings in support of these critical conclusions. Virtually all these findings were based on his credibility assessments of C.D.B., L.D.B. and other witnesses. The evidence, which was marshalled during an unusually long hearing, was carefully scrutinized in his comprehensive and cogent reasons. The trial judge’s credibility assessments and his evaluation of the evidence as a whole are matters squarely within his domain. They attract a highly deferential standard of review. As a result, the Society faces a steep uphill battle in seeking to disturb the trial judge’s protection ruling on appeal.
[32] Second, and importantly, there is no evidence before this court of any current protection concerns regarding any of the children.
[33] Neither the Society’s nor the Children’s Lawyer’s facta on this motion identifies any current protection concerns in respect of any of the children. Nor has any evidence been filed on this motion to demonstrate any existing or on-going protection concerns regarding the children.
[34] Further, no protection application regarding any of the children has been commenced since the date of the trial judge’s decision.
[35] Nonetheless, the Society took the position in its factum that “it remains concerned about the children, particularly [M.X.B.]”. Simply put, there is no evidence before this court describing, let alone detailing, these alleged concerns.
[36] Under the Act, the Society is statutorily obliged to act in the best interests of the children and to promote their protection and well-being. If there was any basis to suggest that any of the children are in need of protection at present, or were in need of protection at any time since the date of the trial judge’s decision, it might be expected that evidence of such need would have been placed before this court. No such evidence has been forthcoming from the Society or the Children’s Lawyer. In fact, during oral argument, the Society acknowledged that there is no evidence before this court of any current or on-going protection concerns.
[37] In the result, this court is left with the Society’s bald assertion of unspecified, current concerns about the children, particularly M.X.B. This is insufficient to establish any present need for a protection order.
[38] Moreover, even assuming some minimal merit to the grounds of appeal sought to be advanced by the Society, I see no utility to the relief sought. If successful on appeal – an outcome I regard as most unlikely – the primary relief sought by the Society is tantamount to a retroactive protection order, that is, a determination that the children were in need of protection almost four years ago, when the Society’s child protection application was commenced. In my view, in the absence of any evidence of existing child protection concerns, such an order would be contrary to the best interests of the children. Indeed, such an order would undermine the stability of their current living circumstances and reignite the conflicts in this family. For the same reasons, I fail to see how subjecting any of the children and the parties to a new protection hearing could be said to promote the best interests of the children or the administration of justice.
[39] As acknowledged by the Children’s Lawyer, the issue whether the children were in need of protection in September 2010 is now moot. And, as I have said, the Society has raised no concerns about the care of the children, including C.D.B.’s care of M.X.B., since the conclusion of the proceedings before the trial judge. Absent any live child protection issue in relation to any of the children, an appeal to this court in the name of child protection concerns cannot serve the best interests of the children or the interests of justice.
[40] Relying on this court’s decision in Schmidt v. Toronto-Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1, the Society argues that the threshold for the granting of an order quashing an appeal is high and that the demonstration of even a minimal level of merit to an appeal will defeat a motion to quash where it is alleged that the proposed appeal lacks merit. I agree.
[41] However, a manifest lack of merit is only one basis upon which an appeal may properly be quashed: Schmidt. Where the proposed appeal involves claimed child protection issues and where, as here, there is no evidence of any existing child protection concerns, the best interests of the affected children and the interests of justice and judicial economy may demand that the appeal be quashed. In my view, this is such a case.
V. Disposition
[42] For the reasons given, I would allow C.D.B.’s motion to quash the Society’s appeal from the trial judge’s dismissal of its child protection application. Nothing in this proposed disposition affects 1) the Society’s motion for leave to appeal the trial judge’s costs award against it and, if leave is granted, its appeal from that award; or 2) L.D.B.’s pending appeal in relation to the matrimonial proceeding. The trial judge’s determination of the care and custody of M.X.B. will therefore be addressed on L.D.B.’s appeal.
[43] I would award C.D.B. his costs of this motion, fixed in the total amount of $7,500, payable by the Society within 30 days from the date of these reasons.
Released:
“OCT -9 2014” “E.A. Cronk J.A.”
“EAC” “I agree E.E. Gillese J.A.”
“I agree M. Tulloch J.A.”
[^1]: In the subsequent matrimonial proceeding, the trial judge concluded that L.D.B. had misled him on her ex parte motion by failing to disclose that 1) she was in frequent contact with her family at the time of the motion, and 2) the reason for her family’s delayed return to Canada was the cancellation of airline flights triggered by the spread of volcanic ash.
[^2]: On September 19, 2012, following a preliminary inquiry, M.D.B. pled guilty to common assault in respect of his altercation with his mother.
[^3]: M.D.B. turned 18 years of age on September 11, 2012. Shortly thereafter, the trial judge dismissed the Society’s protection application with respect to M.D.B.