SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

COURT FILE NO.: 250/09

DATE: 20090703

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990, AS AMENDED;

AND IN THE MATTER OF THE CHILD: Q.R., Born […] 2007

RE: the catholic children's aid society of hamilton v. C.R. (mother) and A.R. (father)

BEFORE: Low, Karakatsanis and van Rensburg JJ.

COUNSEL: John Z. Olenski, for the Respondents/Appellants James Mountford, for the Applicant/Respondent on Appeal

HEARD AT TORONTO: June 19, 2009

E N D O R S E M E N T

LOW J.:

[1] The appellants C.R. and A.R. appeal from the Order of Pazaratz J. dated February 4, 2009 declaring the child Q.R. a Crown ward and placing him in the care of the respondent without access to the appellants.

[2] Q.R. is the fourth child born of C.R.. The appellants have a significant history of involvement with child protection agencies. In 1997, an order of Crown wardship was made in respect of the first child born to C.R.. The second child born of C.R. was made a Crown ward on January 21, 2003. A third child was born to C.R. on […] 2005. The appellant A.R. was the father of that child. The child was apprehended at birth. Ultimately, a finding was made that the child was in need of protection and he was placed in the care of the paternal grandparents.

[3] Q.R. was born on […] 2007, and he was apprehended at birth. An application under the Child and Family Services Act, R.S. O. 1990, c. 11, as amended, was commenced on December 24, 2007 for Crown wardship. The appellants signed their amended answer on February 5, 2008. A summary judgment motion was brought on November 18, 2008 by the respondent seeking an order for Crown wardship without access. The motion was heard by the motions judge on January 28, 2009.

[4] In support of the motion for summary judgment, the respondent filed the affidavits of Cindy Key sworn January 26, 2009, and of Seana Dobbin-Gayowsky sworn November 17, 2008, to which were annexed a parenting capacity assessment by Peter Sutton conducted from February, 2006 to May, 2006, an assessment by Nicole Walton-Allen dated June 30, 1997, and medical reports and other documents. Based upon the contents of the affidavits and reports, Pazaratz J. found at para. 51 of his reasons that both appellants are "so constrained by their own problems – and their conflictual and unstable relationship with one another – that they are unable to parent, or even be entrusted with unsupervised access."

[5] The appellants were represented by counsel at the motion. Each of the appellants filed an affidavit in response to the motion. There is no evidence that they sought to cross-examine the deponents of the affidavits filed by the respondent, and they did not seek an updated or further parenting capacity assessment. They did not adduce evidence challenging the facts underlying the opinions expressed in the parenting capacity assessments, or to suggest that there had been a change in parenting capacity subsequent to the time period during which Peter Sutton did his assessment (in 2006) in relation to the appellants' ability to parent Ms. C.R.' third child. They did not seek to cross-examine the assessors whose reports were put in evidence by the respondent, nor did they seek to examine other individuals whose reports were put in evidence by way of exhibits to Ms. Dobbin-Gayowsky's affidavit.

[6] I do not mean to suggest that there was a positive requirement that all of the foregoing steps be taken by the appellants in this case; rather, I simply note that there were a number of ways in which the appellants could have challenged the facts that were put before the court by the respondent on the summary judgment motion on the important issue of their ability to parent.

[7] In the affidavits that the appellants filed in response to the motion, they denied certain statements contained in the respondent’s affidavits, referred to the successful supervised access visits and expressed a desire to parent the child, with the father acting as principal caregiver. They did not, however, suggest that the appellants had taken any tangible measures to address the deficiencies that had been noted in the earlier parenting capacity assessments and no evidence was adduced that would indicate that the conclusions in the parenting assessments were in error.

[8] In careful and detailed reasons, the motions judge considered all of the evidence before him and focused particularly on the affidavits of the appellants. He concluded that the appellants had shown no genuine issue for trial. At paragraphs 41 to 43 he stated:

Neither parent specifically deals with the comprehensive list of concerns identified by Dr. Sutton in 2006. Neither parent appears to acknowledge or appreciate the scope of their limitations – and the problems within their relationship – which directly impact on their potential for parenting. Neither parent sets out any specific information to suggest that their parenting capacity has improved since 2006, or even that it has improved since Q.R. was born.

Neither parent provides any specific or meaningful explanation about historic, current or future efforts to improve parenting skills. Neither parent provides any evidence to suggest they could have been candidates for unsupervised access by now, or that they won't need intensive supervision – indefinitely – in the future.

In essence, neither party has set out any allegations or information which – even if believed by a trial judge – would result in Q.R. being returned to them (or either of them). [Emphasis in original.]

[9] He found that the child is in need of protection, is adoptable, and that it was in the best interests of the child that the appellants have no access.

[10] The standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On pure questions of law, the standard of review is correctness. On findings of fact, the reviewing court ought not to interfere unless it is established that there has been a palpable and overriding error. On questions of mixed fact and law, the palpable and overriding error standard applies unless there is an extricable error of law.

[11] The appellants raise two issues on this appeal.

[12] The first argument goes to admissibility of evidence. They argue that the motions judge erred in relying on the inferences and opinions of persons who were not witnesses on the motion and that he erred in permitting parenting capacity assessments and other documents prepared for other proceedings involving other children of C.R. to be used in evidence in support of the motion for summary judgment.

[13] Second, they argue that the use of rule 16(2) of the Family Law Rules, O. Reg. 114/99 as amended, which provides that a motion for summary judgment may be made in any case including a child protection case, offends the principles of fundamental justice and has infringed the appellants' rights to security of the person under s. 7 of the Charter of Rights and Freedoms, Constitution Act, 1982. They argue that the decision should be quashed under s. 24 of the Charter.

[14] The relevant statutory provisions are ss. 50 and 54 of the Child and Family Services Act:

50. (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

54. (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):

55. The child.

56. A parent of the child.

57. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child.

Assessor selected by parties

(1.1) An order under subsection (1) shall specify a time within which the parties to the proceeding may select a person to perform the assessment and submit the name of the selected person to the court.

Appointment by court

(1.2) The court shall appoint the person selected by the parties to perform the assessment if the court is satisfied that the person meets the following criteria:

1. The person is qualified to perform medical, emotional, developmental, psychological, educational or social assessments.

2. The person has consented to perform the assessment.

Report

(2) The person performing an assessment under subsection (1) shall make a written report of the assessment to the court within the time specified in the order, which shall not be more than thirty days unless the court is of the opinion that a longer assessment period is necessary.

Assessment is evidence

(6) The report of an assessment ordered under subsection (1) is evidence and is part of the court record of the proceeding.

Report inadmissible

(8) The report of an assessment ordered under subsection (1) is not admissible into evidence in any other proceeding except,

(a) a proceeding under this Part, including an appeal under section 69;

(b) a proceeding referred to in section 81;

(b.1) a proceeding under Part VII respecting an application to make, vary or terminate an openness order; or

(c) a proceeding under the Coroners Act,

without the consent of the person or persons assessed.

[Emphasis added.]

[15] The parenting capacity assessment reports from 1997 and 2006 and other reports annexed to the affidavit of Ms. Seana Dobbin-Gayowsky are admissible in evidence under the provisions of s. 50 and s. 54(8). We find that the motions judge made no error in law in considering them. Neither the fact that the reports were originally created for use in an earlier court proceeding concerning the appellants and another child nor the fact that the authors of the reports have not sworn an affidavit for use on this proceeding is a bar to admissibility. The legislature has expressly created a special evidentiary rule applying to a proceeding under this part of the Child and Family Services Act to permit the admission of such documents.

[16] The motions judge reviewed the evidence, and in particular, the evidence of the parents and found that there was no genuine issue for trial. The parenting capacity assessments, by their nature, consist of observations and interviews by an expert and opinions based on the observations and information obtained from the interviews. The appellants did not provide evidence that seriously challenged the evidence of the reports. The evidence regarding the access visits provided some updated information. Given the totality of the evidence before the motions judge that the appellants lacked the ability to parent safely in 2006 and that their ability had not improved over the course of the first 13 months of the child's life, the conclusion that no genuine issue for trial had been shown and that the best interests of the child lay in a Crown wardship order without access – thus making adoption feasible – was both warranted and correct.

[17] With respect to the argument that proceeding under rule 16(2) of the Family Law Rules has violated the appellants' s. 7 Charter Rights, the notice of constitutional question in this regard was served on or about May 25, 2009 on the Attorney General of Canada and on the Attorney General of Ontario. The constitutional argument was raised for the first time on appeal.

[18] Both the Attorney General of Canada and the Attorney General of Ontario have indicated that they do not intend to take part in these proceedings.

[19] We are of the view that the challenge to the constitutionality of rule 16(2) of the Family Law Rules should not be entertained for the first time on the appeal of this matter.

[20] As the Court of Appeal stated in R. v. Roach, 2009 ONCA 156 (at paras. 6 to 8).

Generally speaking, appeal courts will not entertain arguments not made at trial: Kaiman v. Graham, 2009 ONCA 77, [2009] O.J. No. 324 at paras. 18-19 (C.A.). That general rule applies to constitutional arguments raised for the first time on appeal regardless of whether the arguments invoke the remedial powers of s. 24 of the Charter or the nullifying power in s. 52(1) of the Constitution Act, 1982: e.g. see R. v. L.G. (2007), 2007 ONCA 654, 228 C.C.C.(3d) 194 at para. 43 (Ont. C.A.); R. v. Seo (1986), 1986 109 (ON CA), 25 C.C.C. (3d) 385 at 294 (Ont. C.A.).

An appellate court does, however, have the discretion to permit new arguments, including Charter arguments. In exercising that discretion, the appellate court must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed on appeal even though it was not raised at trial. An appellate court will be most inclined to exercise its discretion in favour of hearing a new argument where that new argument can be fully addressed and determined based on the trial record: e.g. see R. v. Sweeney (2000), 2000 16878 (ON CA), 148 C.C.C. (3d) 247 at paras. 34-40 (Ont. C.A.). More rarely, an appellate court will hear a new argument based on an evidentiary record laid out for the first time in the court of appeal: e.g. R. v. Seo, supra.

In my view, the more numerous and contentious the evidentiary disputes generated by the material filed on appeal in respect of the issue raised for the first time on appeal, the less likely it is that the appellate court will exercise its discretion in favour of considering the merits of the new argument. While appeal courts do resolve evidentiary disputes from time to time in the course of deciding appeals, appellate procedures are not designed for that purpose. The appellate forum and its procedure are not adapted to the weighing of evidence and the finding of facts. Appeal courts review decisions made at trial. The appeal process is premised on the issues under appeal having been vetted in the trial court and subjected to the reasoned analysis of the trial court. If a new argument put forward on appeal can only be effectively and fairly resolved by conducting what amounts to the trial of an issue or several issues in the appellate court, the appellate court should, absent exceptional circumstances where the interests of justice require otherwise, decline to resolve the new issue raised on appeal.

[21] While counsel for the appellants (who was not counsel on this appeal) objected to the determination of the merits by summary judgment, the Charter argument was not raised before Pazaratz J. and there is no evidentiary foundation for it. In the circumstances we are not satisfied that a Charter challenge can be fully and fairly argued and determined and we therefore decline to entertain it.

[22] For the foregoing reasons, the appeal is dismissed.

[23] In accordance with the agreement of the parties, there will be no costs of this appeal.

Low J.

Karakatsanis J.

van Rensburg J.

DATE: July 3, 2009