L.D. v. Durham Children's Aid Society

Ontario Superior Court of Justice – Divisional Court

Date: 2005-11-25

Counsel: Sandra C. Grant for Appellant Clem Nabigon for Respondent, Durham Children's Aid Society William Livingstone for Respondents, R.L. and M.L. Brian Korb for Child

Docket: 448/05

Lane J.:

[1] Ms. D. (the "appellant") seeks leave to appeal the June 24, 2005, order of Salmers J. in which the court ordered that her child, M., age 8, be placed into the temporary care and custody of his father, Mr. L.. The appellant seeks an order that M. be placed in her care and custody, or alternatively, an order that M. be placed in her care and custody, subject to the temporary supervision of the CAS, with access to Mr. L. to be in accordance with the order of Ferguson J. on March 30, 2005. She also seeks an order that her s. 7 Charter rights have been unjustifiably infringed. At the end of the submissions of counsel for the appellant, we retired and on return to court advised the parties that, notwithstanding the able submissions of Ms. Grant, we had concluded that the criteria for leave to appeal had not been met. As the matter involves the 2004 amendments to the Family Law Rules, O. Reg. 114/99, we decided to deliver our reasons in writing at a later date. These are our reasons.

Background

The Appellant's History with the CAS

[2] The appellant contacted the Durham Children's Aid Society ("CAS") in July 2003 and reported experiencing depression and financial stress. In August 2003, the CAS received an anonymous tip regarding the appellant's abuse of prescription medication and the poor state of her home. Around that same time, her then physician advised the CAS that he had severed his doctor/patient relationship with the appellant due to her medication abuse. Between November 2002 and June 2004, M.'s pediatrician and day care workers raised concerns regarding the inconsistency in the appellant's medical care for M..

The CAS Removes M. from the Appellant's Care

[3] On March 31, 2005, M.'s school alerted the CAS that M. had missed 42 days of school since September 2004. Truancy charges had been laid against the appellant who had failed to appear. The school also indicated that the child appeared over-medicated, "stoned" and sleepy in school.

[4] On April 6, 2005, the appellant was suddenly hospitalized for four days, with a diagnosis of "acute delirium with presumed [drug] overdose and hepatitis with overdose." She was observed also to be confused and disoriented as to persons and time. Counsel for the appellant submitted that the problem was due to complications with Tylenol and medication for depression and seizures, but the evidence tends to show a more deep-seated set of problems. Mr. Lowe, a friend, took care of M. during her stay in the hospital. The CAS's internal check on Mr. Lowe revealed that he had been convicted 20 years ago for inappropriate sexual exposure of his genitals to his daughter. M. told a CAS worker that Mr. Lowe and the appellant yelled and swore at each other, sometimes necessitating police intervention. On April 6, Dr. Cameron, the appellant's current doctor, advised that she had no evidence that the appellant was over-using prescription drugs. On April 11, 2005, CAS interviewed the appellant at her home and discussed both her own medication and her care of M.. Mr. Lowe was present, and the CAS workers caused him to disclose his prior conviction to the appellant, who immediately asked Mr. Lowe to leave, and who has had no contact with Mr. Lowe since that date. M. has made no disclosures of any inappropriate touching or exposure by Mr. Lowe.

[5] On her release from hospital on April 11, 2005, the CAS workers advised the appellant that in view of her recent mental and physical condition, they were going to take M. into care, unless she could find a family placement for him. The appellant consented to the placement of M. with the paternal grandmother, Ms. M. L.. According to the appellant, she only consented to this as a temporary measure while the CAS conducted their investigation. The CAS directed that the appellant's access to M. be fully supervised by a CAS staff member at the CAS's office for one hour per week.

[6] Ms. L. apparently took M. off his prescribed medications at some point after April 11, 2005. On April 21, 2005, M.'s daycare reported that his condition had improved drastically, he was opening up to the staff, was no longer cowering in corners, and was interacting with the other children. It was noted that he was no longer taking medication at lunch.

[7] On April 26, 2005, Dr. Cameron wrote to the CAS and advised that M. had severe asthma throughout the winter months and that the appellant had brought M. in for medical attention many times. In addition, M.'s medication for Attention Deficit Hyperactivity Disorder (ADD) and Pervasive Developmental Disorder (PDD) was being monitored and adjusted during this time.

The Protection Application

[8] On May 3, 2005, the CAS advised the appellant that it was going to seek placement of M. with his father or paternal grandmother. The CAS advised the father, Mr. L., on May 5, 2005, that it would seek a supervision order placing M. into his care and custody. On May 24, 2005, the school advised the CAS that M.'s condition had improved since the change in his living situation.

[9] The CAS issued a Protection Application on June 3, 2005. That afternoon, the appellant was served with the application, which sought a 12-month supervision order placing M. into the care and custody of his father. The appellant maintains that she was never advised by the CAS of its decision to place M. in Mr. L.'s care. Dr. Cameron wrote another letter on June 6, 2005, regarding the appellant's medical attention toward M.. Dr. Cameron also stated that the appellant's drug intake was limited to drugs that she had been prescribed.

[10] On June 7, 2005, the matter came before Lack J., who stated that she was making a status quo order regarding M.'s placement, ordering M. into the care and custody of the CAS with access at the CAS' discretion. Lack J. directed that M. was not to be moved from his grandmother's care. The matter was then adjourned until June 24, 2005, for a Temporary Care and Custody Hearing.

[11] Ms. L. took M. to see Dr. Rajah. Dr. Rajah stated that he did not think M. had PDD (autism) or significant hypotonia[^1]. According to Dr. Rajah, M. had not used his puffer since the end of April and had been off other medications for one week. In order to assess his condition, Dr. Rajah ordered that M. be taken off all medications for one month. Dr. Rajah also noted that the school felt that M. was doing much better without the medication.

[12] On June 22, 2005, Dr. Cameron wrote a letter clarifying that she had no concerns with the appellant's care of M., provided that she continued her involvement with her current service providers (Kinark and Durham Family Respite). A representative of one of these organizations accompanied the appellant to the hearing before us.

The Temporary Care and Custody Hearing

[13] On June 24, 2005, Salmers J. ordered that M. be placed with his father instead of with his grandmother. The appellant was granted specified unsupervised access. In doing so, the learned motion judge said that s. 51 of the Child and Family Services Act, R.S.O. 1990, c. C.1 [CFSA] gave him the options of returning the child to his mother, with or without supervision, or placing him with someone else. In order to place the child elsewhere, the judge had to be satisfied "on the balance of probabilities" that the criteria in s. 51(3) had been satisfied:

(3) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

[14] In addressing this requirement, the judge said:

Since April 11, 2005, when M. commenced residing with his grandmother, there have been very dramatic, positive improvements in M.'s physical, mental and emotional health and in his behaviour and demeanour. Those improvements are supported by independent third party evidence, namely the school and the doctor. The improvement in these areas has been so immediate and significant that I find that if he were to be returned to his mother's care, there are reasonable grounds to believe that it is likely that M.'s physical, emotional and mental health will regress to its state when M. was in his mother's care prior to April 11, 2005. That regression is so significant and negative that I find it is harm as contemplated by section 51(3). This harm is linked to the child living with his mother.

[15] Salmers J. went on to find that the appellant's "current state and abilities" reinforced the view that a return to living with her would expose M. to the risk of harm. These findings completely meet the appellant's objection that the judge did not deal with why M. could not be protected in the appellant's custody.

[16] The learned judge rejected the submission that the alleged impropriety of the events of April 11, 2005, ought to alter his conclusions, holding that the s. 51 criteria were to be considered as at the time of the motion. I agree with this position. It must not be forgotten that this motion was very preliminary and the merits of the action were not up for decision. The focus must be on the best interim arrangement for the care of the child in the prevailing circumstances. The least intrusive order was to place M. with his father and grant the appellant daily telephone access and regular unsupervised access on weekends, subject to restrictions as to the administration of drugs and the maintenance of M.'s daily routine.

Court's Jurisdiction

[17] As this is an appeal of an interlocutory order, leave is required to appeal under s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 [CJA]:

19.(1) An appeal lies to the Divisional Court from,

(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court;

[18] Under s. 38(1) of the Family Law Rules, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 apply with respect to the appeal procedure:

38.(1) Rules 61, 62 and 63 of the Rules of Civil Procedure apply with necessary modifications, including those modifications set out in subrules (2) and (3),

(a) if an appeal lies to the Divisional Court or the Court of Appeal;

(b) if leave to appeal to the Divisional Court or the Court of Appeal is required,

in a family law case as described in subrule 1 (2).

[19] Subrule 1 (2) of the Family Law Rules includes family law cases under "Parts III, VI and VII of the Child and Family Services Act". The proposed appeal is under s. 69, which is in Part III (Child Protection) of the CFSA and provides that an appeal from a court's order under this Part may be made to the Superior Court of Justice. However, section 21.9.1 of the CJA provides that appeals from the Superior Court of Justice, Family Court under section 69(1) of the CFSA will be to the Divisional Court:

21.9.1 A statutory provision referred to in the Schedule to section 21.8 or in section 21.12 that provides for appeals from decisions of the Ontario Court of Justice to the Superior Court of Justice shall be deemed to provide for appeals from decisions of the Family Court to the Divisional Court.

[20] The Schedule to section 21.8 of the CJA includes Parts III, VI and VII of the CFSA, and as noted above, s. 69(1) is contained in Part III. Read together, these statutes give the Divisional Court the jurisdiction to hear the appeal once leave has been granted.

[21] If leave is granted, the parties seek to proceed immediately with the appeal. This procedure is pursuant to r. 38(3) of the Family Law Rules, which states as follows:

38(3) In an appeal of a temporary order made in a case under the Child and Family Services Act and brought to the Divisional Court under clause 19 (1)(b) of the Courts of Justice Act, the motion for leave to appeal shall be combined with the notice of appeal and heard together with the appeal.

[22] In accordance with this section, the panel sat to hear the application for leave to appeal, with the appeal scheduled to follow if leave was granted. Perhaps inevitably, the result was that we heard most of the appellant's appeal submissions in the course of hearing the leave application.

The Motion for Leave to Appeal

[23] Rule 62.02(4) of the Rules of Civil Procedure indicates when leave to appeal shall be granted:

62.02(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[24] The appellant submitted that there were conflicting cases on the matter of temporary orders and referred to Catholic Children's Aid Society of Toronto v. M. (C), 2003 54589 (ON CJ), [2003] O.J. No. 1941 (Ont. C.J.), where it was said that the burden of proof in these proceedings lies on the CAS and there is no burden on the parent to show the order is unnecessary. It was contended that the passage from the reasons referring to the appellant's "current state and abilities" placed the onus on her. In my view, this passage does not do that. It is a finding that the evidence in the record shows the mother is not in a fit state to parent the child; it says nothing about requiring her to prove anything.

[25] It was also submitted that the motion judge erred in referring to the need for him to find the risk of harm required under s. 51(3) on "the balance of probabilities". We were referred to Children's Aid Society of Toronto v. M. (A.) (2002), 2002 45665 (ON CJ), 26 R.F.L. (5th) 265, [2002] O.J. No. 1432 (Ont. C.J.) [cited to QL], where the Ontario Court said that on an interim custody order, the standard is not the balance of probabilities. This conclusion was reached because the scope of the motion is too narrow and too temporary to attract that standard, especially since cross-examinations would not likely have been held at so early a stage. What is really being adjudicated in such a motion, the court said, is "the reasonableness of the [CAS'] belief that there is a risk that the child is likely to suffer harm (at para. 16). The court explained further at para. 17:

What is really evaluated in this interim motion is the degree to which the society has kept pace with its investigation, informed its beliefs by the ever-expanding information available to it and measured its belief against the criteria established by section 51(3) of the Act.

[26] In my view, this passage, in the context of the remarks as to the very early stage at which this type of proceeding occurs, indicates that the standard is not the balance of probabilities as to the actual existence of real risk, but is an evaluation of the reasonableness of the grounds for the CAS' belief. That is a lesser standard of proof than the one actually applied by the motion judge to the CAS' case. If, as the appellant contends, the motion judge erred in adopting the standard of a balance of probabilities, it does not, in these circumstances, give reason to doubt the correctness of his actual decision since the "error" benefited the appellant. The appeal is, after all, from the result and not from the reasons. There is, at the least, sufficient evidence in the record to support the view that there were reasonable grounds for the CAS' belief.

[27] It was further contended on behalf of the appellant that the reasons given by the learned motion judge were deficient, in that they did not meet the requirements of s. 53(1)(d) of the CFSA, including a brief statement of the evidence and a statement of why the child could not be adequately protected by leaving him with the person with whom he was living immediately before the intervention, who in this case was the appellant. In my view, the reasons are adequate, although brief. They set out the condition of the appellant as the reason why she cannot continue to parent the child, and there was ample evidence to support that reason. It would have been better for the reasons to set out the "current state and abilities" in a bit of detail, but on the evidence, particularly the records and evidence as to the April 6, 2005 hospitalization, there can be little doubt about what was being referred to. As the judge noted, the dramatic improvement in M., detailed in the reasons, co-relates with his removal from the mother's care and, in my view, that fact speaks volumes as to the appellant's present capacity to parent.

[28] Finally, the granting of leave requires the presence of an element of public or legal interest beyond the interest of the parties. The present order was fact-driven and raised no broad issues of public importance that make it desirable that leave should be granted.

[29] For these reasons, we dismissed the motion for leave to appeal at the hearing. No party asked for costs and none are awarded.

Motion dismissed.

[^1]: This is defined as a state of reduced muscle tension or tone: (New Shorter Oxford. English Dictionary, 4th éd., 1993).