COURT FILE NO.: 70362/04
DIVISIONAL COURT FILE NO.: 445/04
DATE: 20041108
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEEHAN, KOZAK, PITT J.J.
IN the MATTER OF The Child and Family Services Act, R.S.O. 1990, c. C.11, as amended
AND IN THE MATTER OF the children B. S. M., born .[…], 1999 and N. J.-L. M., born […], 2000.
B E T W E E N:
DURHAM CHILDREN’S AID SOCIETY
Applicant
(Respondent in Appeal
- and -
E. C. G. and E. P. M.
Respondents
(Respondents in Appeal)
- and -
THE CHILDREN’S LAWYER
Counsel for the children
(Appellant)
Michael Hartrick and June Mayhew, counsel for the Applicant (Respondent in Appeal), Durham Children’s Aid Society
Munyonzwe Hamalengwa, counsel for the Respondents (Respondents in Appeal)
Carolyn Leach and Rachael L. Eynon, counsel for The Children’s Lawyer
HEARD: October 28, 2004
Pitt J.
REASONS FOR JUDGMENT
[1] This is an appeal from a judgment of the Honourble Mr. Justice Nelson, an experienced Family Court Judge, rendered February 10, 2004, after an eleven-day trial.
[2] The operative portion of the Judgment is as follows:
There will, therefore, be an order that the children are to be returned to their mother’s home within ten days of this order, subject to the following terms and conditions:
Terms and Conditions
E.G.M. and P.M. will sign releases of information relating to the health, safety, education and welfare of the children.
E.G.M. and P.M. will notify the Society at least 14 days prior to any change of address or telephone number.
E.G.M. will permit the Society worker to conduct announced and unannounced home and school visits.
E.G.M. and P.M. will permit the Society’s worker to meet with the children, both in their presence and in private.
E.G.M. will ensure that the children have prompt and regular medical and dental attention.
E.G.M. and P.M. shall meet with the Society’s worker at mutually agreed upon times.
E.G.M. shall ensure that P.M. has no contact with the children, unless supervised by the Durham CAS Supervised Access Program.
E.G.M. shall ensure that her children are adequately supervised at all times.
E.G.M. shall not permit any babysitters or daycare providers to have contact with the children without the prior approval of each person, by the Society. These individuals must also provide a police check to the Society.
E.G.M. will ensure that her children receive services/treatment/counseling deemed appropriate by the Society.
E.G.M. will ensure she and the children attend family counseling and provide Society with proof of their attendance, regular updates on progress and proof of successful completion of any such program.
E.G.M. will refrain from use of any physical discipline, or threat of physical discipline, with the children.
E.G.M. will not permit anyone to use physical discipline on her children.
E.G.M. will ensure that the children are not exposed, directly or indirectly, to violence or verbal abuse.
Each party shall advise the Society forthwith of any breach of the terms and conditions herein by any other party.
The supervision order and its terms and conditions shall remain in place for a period of twelve months from the date of the release of this judgment.
[3] The main basis for the appeal is that the trial judge established a test for wardship that fail to comply with the statutory framework of The Child and Family Service Act, R.S.O. 1990 c. C.11, as amended (the “Act”).
[4] The argument is based primarily on the following statements in the Reasons for Judgment:
[61] It is trite to say that a crown wardship order with no access is the end of the road for the parents. Before making such an order this Court must be satisfied that it would be hopeless to return the children to one or both of their parents. This court is aware that the test to be applied on the disposition of a protection matter is the best interests of a child, however, this does not mean that the best interests test is an absolute test.
[62] Put another way, if it is possible to protect the children in their biological family then crown wardship should not be ordered.
[5] The appellant seeks to set aside the Supervision Order and make the children permanent wards of the Crown on the basis that:
a) the trial judge erred in law in failing to identify the best interests of the children as the paramount consideration in making an Order under section 57 of the Child and Family Services Act. This in turn led him to give insufficient weight to factors pertaining to the children’s best interests and excessive weight to relatively inconsequential factors; and
b) the trial judge made palpable and overriding errors in his assessment of critical facts. In particular, The Children’s Lawyer submits that the trial judge erred in finding that:
i) the parents would obey a court order prohibiting unsupervised contact between the father and the children;
ii) the children could be protected from physical harm through monitoring of the family by the Society through a court order; and
iii) a different dynamic between the Society and the parents would be in effect once the children were returned to the mother’s care.
The prime objective of the appeal is to make the children wards of the Crown, without an order for access, for the purpose of adoption.
STANDARD OF REVIEW
[6] The standard of review for appeals from an order of a judge is widely accepted to be whether or not the decision of the judge was “clearly wrong”. This standard applies both to findings of fact and to the application of legal principles. See, e.g. Stein v. “Kathy K” (The Ship), 1975 146 (SCC), [1976] 2 S.C.R. 802. "[An] appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts." Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014.
[7] The Supreme Court of Canada addressed the appropriate standard of review in family law matters in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518. Although the case dealt with the issue of support, the Court was clear in holding that family court judges should be accorded considerable deference by appellate courts.
ANALYSIS
[8] I do not agree that the language of the trial judge described above, though imprecise, ought to be construed to mean that he did not accept the proper test to be the best interests of the children. More importantly, I believe the trial judge was acutely sensitive to the real risks to which the children might be exposed in the absence of a wardship order; that sensitivity is reflected in the stringent conditions laid out in his order. In addition to which, it is useful to bear in mind that appeals are against decisions and not against reasons.
[9] An examination of the terms and conditions imposed by the trial judge demonstrates that in his assessment of the matter, he demonstrated a cautious approach and ruled in accordance with the spirit of the Act. See C. (G.C.) v. New Brunswick (Minister of Health and Community Services), [1988] 1 S.C.J. 1073 at para. 14.
[10] Finally, as the Supreme Court of Canada said in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, per Bastarache J. at p. 307:
The conclusion that Wright J. erred in failing to apply a required aspect of the legal test does not automatically lead to a rejection of her factual findings. This Court’s jurisdiction to review questions of law entitles it, where an error of law has been found, to take the factual findings of the trial judge as they are, and to assess these findings anew in the context of the appropriate legal test.
I do not agree with the appellant’s submission that the trial judge made palpable and overriding errors in his assessment of critical facts nor their argument that the trial judge’s disposition did not properly reflect the facts found by him.
[11] What I believe the trial judge attempted to do was to follow the Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 83 (SCC), [1994] 2 S.C.R. 165 at p. 21, para. 48 (per L’Heureux-Dubé J.) where the court said that:
The law that the courts must apply in the present case is the Ontario CFSA which, properly interpreted, mandates a careful balancing of its paramount objective of the best interests of the child with the value of maintaining the family unit …
In the same case, L’Heureux-Dubé J. also said at p. 19:
In fact, this Court examined the importance of bonding to psychological parents in Racine v. Woods, [1983 27 (SCC), [1983] 2 S.C.R. 173] at p. 188:
The real issue is the cutting of the child’s legal tie with her natural mother. This is always a serious step and clearly one which ought not to be taken lightly.
While the Court can feel compassion for the respondent, and respect for her determined efforts to overcome her adversities, it has an obligation to ensure that any order it makes will promote the best interests of her child. This and this alone is our task.
In King v. Low, [1985 59 (SCC), [1985] 1 S.C.R. 87] at p. 101, McIntyre J. held:
… the dominant consideration to which all other consideration must remain subordinate must be the welfare of the child … The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.
These concerns apply in matters of guardianship, as well.
[12] At the trial level, Stayshyn J. in Children’s Aid Society of Hamilton v. M.A.M., [2003] O.J. No. 1274 (S.C.J.) had this to say at para. 12:
I note that a Crown Wardship order is probably the most profound order that a court can make. Cases are virtually unanimous in postulating that there is no order that any judge can possibly make that so profoundly affects the lives of the people involved. Thus, “to take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies” (Catholic Children’s Aid Society of Hamilton-Wentworth v. G. (J.), 23 R.F.L. (4th) 79.
The above, I think, is a fair summary of the legal framework in which the trial judge had to perform this most difficult of tasks.
PARTIAL SUMMARY OF EVIDENCE
[13] The children were born on […], 1999 and […], 2000 respectively. The respondents are the parents of children. The respondent mother was born in Jamaica and came to Canada as a teenager. The respondent father is a Grenadian. He came to Canada in February 1998. The respondent mother had been engaged in bitter litigation with her first husband over the custody of a child who suffered from Autism. The court awarded custody to the father. The respondent mother has had almost no contact with her first child since the award of custody to her former spouse, who incidentally claimed that the separation was caused by the relationship that developed between the respondents in the instant case. The trial judge also accepted the respondent’s mother’s testimony that the marriage to her former spouse was a loveless one.
[14] The respondent mother’s problems arose partly from the kindness she demonstrated towards her sister and her sister’s husband and their three young children, one of whom was four years old, when those relatives needed accommodation, and the respondent mother and father took them into their home.
[15] In or about February 2002, the respondent mother was convicted of common assault of her four-year-old nephew while teaching him the alphabet. The result of the charges, which originally included assault with a weapon, was that all five children were placed in care. The children of the respondent mother’s sister were returned to her while the respondent mother’s children, who are the subjects of this proceeding, remained in care until the order made by the trial judge herein.
[16] As I read the reasons for judgment, the trial judge did not hesitate to make findings of fact against the respondents wherever there was some evidence to support his findings. In essence, he accepted that the respondents had real character flaws from which the children need to be protected. The major findings with which he had to wrestle were:
(a) The respondent mother had pleaded guilty to assault of her nephew about two years before the trial. The judge wisely rejected any attempts by the mother to provide explanations or excuses for her guilty plea, whether or not they might have had some merit.
(b) The most difficult finding, in my view, was that the appellant, or their predecessors, since March 1998, had apparently received information from Grenada that the respondent father had sexually molested his foster children prior to moving to Canada. Although neither the appellant nor their predecessors made any attempts to investigate those allegations, and although there was no suggestion of any such conduct in Canada, the respondent father, in December 2002, underwent, at the insistence of the Society, a sexological examination with phallometric testing, which resulted in a finding that he suffered from pedophilia. On the basis of that clinical evidence only, notwithstanding other contrary evidence, the trial judge made the finding that the respondent father has the condition of pedophilia.
The Grenada allegations were not accepted in evidence. That evidence was rejected because the trial judge found it to be clearly unreliable and inadmissible, and not because the respondent father had said that the allegations were fabricated for the purpose of revenge, a circumstance not unknown in spousal litigation.
No evidence or indeed any discussion about the connection, if any, between pedophilia and incest was brought to my attention.
[17] The trial judge was unable to find that the respondent mother used excessive physical discipline of her own children or that the respondent father used excessive physical discipline on the nephews.
[18] The trial judge found, with very little disagreement from the appellant, that there was no risk that the children were likely to suffer emotional harm resulting from either the actions or failure to act or pattern of neglect on the part of the child to parent.
[19] In addition, the trial judge found that the children were well-clothed, well-fed and that the house in which they lived was clean and tidy.
[20] It was clear to the trial judge that the parents love their children; that the respondent mother was strong-willed, aggressive in demeanor and intelligent.
He noted that both parents are intelligent people, who would understand the severe consequences of transgressing a court order.
He also observed that the respondent mother has a very supportive family that is prepared to assist her with the children.
With regard to the pedophilia, the trial judge observed that:
The issue with respect to the disposition of this matter is not the father’s condition, but whether the children can be protected from it and him.
[21] With the perspicacity that only experience provides, the trial judge “came away with the distinct impression that Crown Wardship was being sought because of the parent’s non-cooperative attitude towards the Society.”
Along that vein, he continued:
… While physical discipline and pedophilia were the factors that led the Society to have protection concerns, it is clear that up until February, 2003 that the Society was prepared to work with the parents (and especially the respondent mother) in placing the children in their home subject to conditions. It was the respondent’s unrelenting negative attitude towards the Society that was the engine that drove the decision-making process in this case.
There was evidence to support that impression.
[22] As I said earlier, the trial judge was acutely sensitive to the issues raised in the proceedings. He crafted an order that addressed those issues with great care and sensitivity.
[23] I see no basis for finding the trial judge’s decision was clearly wrong.
DISPOSITION
[24] The appeal is, therefore, dismissed.
COSTS
[25] Subject to any agreement between the parties, brief written submissions on costs are to be made within 30 days of the release of these reasons.
Kozak J.
Pitt J.
Released: November 8, 2004
COURT FILE NO.: 70362/04
DATE: 20041108
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEEHAN, KOZAK, PITT JJ
IN the MATTER OF The Child and Family Services Act, R.S.O. 1990, c. C.11, as amended
AND IN THE MATTER OF the children B. S. M., born […], 1999 and N. J.-L. M., born […], 2000.
B E T W E E N:
DURHAM CHILDREN’S AID SOCEITY
Applicant
(Respondent in Appeal
- and -
E. C. G. and E. P. M.
Respondents
(Respondents in Appeal)
- and -
THE CHILDREN’S LAWYER
Counsel for the children
(Appellant)
ORAL REASONS FOR JUDGMENT
Pitt J.
Released: November 8, 2004