WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — 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.
(9) Prohibition re identifying person charged — 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.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
CITATION: Children’s Aid Society (Niagara) v. T. E. et al, 2022 ONSC 6313
DIVISIONAL COURT FILE NO.: DC-22/112
DATE: 2022/11/08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Emery and Nieckarz JJ.
BETWEEN:
Children’s Aid Society of the Niagara Region
Applicant/Respondent on the Appeal
– and –
T.E.
Respondent/Appellant on the Appeal
K.M.
Respondent/Respondent on the Appeal
K.B. (Deceased)
Paul Heinen and Maggie Scull, for the Applicant/Respondent on the Appeal
Self-Represented, Appellant
Natalie Fortier, for the Respondent K.M.
Respondent
HEARD at Hamilton by videoconference: June 9, 2022
Reasons for Decision
NIECKARZ J.
Overview:
[1] This is an appeal from the final order of Maddalena J., dated February 8, 2022 (the “Order”), granting a motion for summary judgment brought by the Children’s Aid Society
[2] of the Niagara Region (the “Society”) for protection findings. Maddalena J., also made a custody order pertaining to the Appellant’s two children, G.E. (age 5) and R.E. (age 3).
[3] The Society’s motion for summary judgment was heard December 3rd, 2021, by video (Zoom). Justice Maddalena (the “motion judge”) released her “Endorsement on Summary Judgment Motion” setting out her decision and the reasons for her decision, on February 8th, 2022 (the “Reasons”).
[4] In her Reasons, the motion judge made the preliminary findings sought by the Society, ordered disclosure of certain records of T.E., made a finding that the children are in need of protection, and awarded custody of the children to their maternal aunt (the Respondent, K.M.) and her partner. The motion judge did not make the access orders sought by the Society, finding that access was a triable issue.
[5] The Appellant does not take issue with the preliminary findings made, or the disclosure order. It is not clear if he takes issue with the finding that the children are in need of protection. He clearly takes issue with the finding that it is in the best interests of the children to be placed in the custody of K.M. and her partner. He seeks to have the order set aside, and for this court to make an order for joint custody of the children as between him and K.M.
[6] There are numerous grounds for the appeal listed in the Notice of Appeal. In general terms, they may be summarized as:
a. Ineffective assistance of counsel;
b. Procedural unfairness; and
c. Errors in findings of fact, some of which could amount to an error in law.
T.E. also sought to have fresh evidence admitted on the appeal, which he argued was relevant to a determination of the issues of whether the children are in need of protection and to their care and custody (decision-making).
[7] The Society and K.M. deny that there is any basis for the appeal and argue that T.E. is simply attempting to re-litigate the motion. They deny T.E.’s allegations of procedural unfairness. As a preliminary matter, they argue that he has failed to properly perfect this appeal and has not served his former counsel with notice of the ineffective assistance of counsel arguments so that he may respond. They seek to have the appeal dismissed.
[8] For the reasons set out below, the appeal is dismissed.
Background Facts:
[9] K.B. and T.E. were common law partners. They had two children together, and K.B. had one other child from a previous relationship. That child is not the subject of these proceedings.
[10] Both K.B. and T.E. suffered from mental health challenges (depression), and addictions issues. They experienced periods of sobriety and relapse. There are allegations that the relationship had periods of volatility that coincide with periods of relapse. T.E. denies these allegations.
[11] The Society became involved with the family in November 2019, following a report from police of a domestic call. Allegations were made by K.B. that T.E. had been aggressive towards her. K.B. told the Society that she had asked T.E. to leave the home after discovering drug paraphernalia, and that he was using drugs, which caused him to become aggressive towards her.
[12] K.B. and T.E. reconciled in December 2019. On December 25, 2019, K.B. overdosed on cocaine and fentanyl, but survived. The children were immediately placed in the care of their paternal grandmother.
[13] On December 27, 2019, T.E. and K.B. entered into a voluntary safety plan with the Society. The terms of the safety plan had G.E. living in the care of his paternal grandmother with assistance from his maternal uncle, and R.E. living with K.M.
[14] In February 2020, K.B. overdosed and tragically, she died. G.E. went to live with his maternal uncle, while R.E. remained with K.M.
[15] T.E. lived at the home of his mother and had regular access to G.E. on the weekend at her home. From March 2020, his access to R.E. was sporadic.
[16] On March 20, 2020, T.E. attended Homewood for residential substance abuse treatment. He was discharged on April 4, 2020, due to a COVID-19 outbreak at the facility. He reported to the Society that he was sober, prepared to commit to regular urine screens, and was involved with multiple service providers to assist in maintaining his sobriety.
[17] T.E. returned to Homewood in May 2020 and was discharged early, having made significant progress. Homewood reported to the Society that T.E.’s mental health was stable, he was in a suboxone program, and was providing regular drug screens.
[18] In August 2020 the Society convened a meeting to discuss their support of increased access between T.E. and the children, and to discuss transitioning the children back to his care.
[19] K.M. was not supportive of returning R.E. to T.E.’s care. There was minimal interaction between R.E. and T.E. T.E. raised concerns with the Society that K.M.’s son had been sexually inappropriate with K.B.’s daughter from her previous relationship. These concerns had also been raised with the Society when K.B. was alive, and both parents confirmed to the Society they felt that K.M. still provided a safe home.
[20] G.E. returned to T.E.’s care on August 19, 2020, when T.E. refused to return him following a period of access. G.E. remained in T.E.’s care until February 1, 2021, when the Society removed him and placed him in K.M.’s care. The Society alleges a number of referrals, many of which came from the maternal family, expressing concern for G.E.’s welfare due to T.E. having relapsed. Two referents and T.E.’s mother confirmed that T.E. had in fact relapsed. T.E.’s mother confirmed that G.E. had been placed at risk with drugs and drug paraphernalia being left in his room. T.E. entered a detox facility on January 31, 2021.
[21] T.E. acknowledged his relapse to the Society and began taking steps to recover again. He was forthright with the Society, acknowledging an incident involving his mother and the police when he was using in February 2021 that resulted in a mischief charge (subsequently withdrawn), and in May 2021 he acknowledged he was not doing well requiring further detox and subsequent hospitalization. He was cooperative in engaging with services to assist in supporting his sobriety.
[22] By May/June 2021, the Society began receiving clean urine drug screens. The Society was also able to confirm with service providers the efforts T.E. was making to engage with services and maintain his sobriety.
[23] In the meantime, the relationship between T.E. and K.M. was poor. This caused conflict surrounding access, whether in-person or video. Both the maternal family and T.E. made numerous allegations about the other to the Society.
[24] In April 2021, the Society attempted to arrange access at their office but experienced difficulty with T.E. in doing so. In June 2021, two visits took place with the children that were noted by the Society to be positive. K.M. disagreed, and alleged behavioural issues with the children following access.
[25] As a result, the maternal family did not support further access between T.E. and the children. The Society attempted to intervene. In July 2021, the Society took the position that access should continue in-person, but the maternal family refused, and access was virtual only. While the Society was not sufficiently confident in T.E.’s sobriety to advocate for a return of the children to his care, the maternal family’s position caused the Society to seek access as between T.E. and the children as part of its motion for summary judgment. As of the date of argument of the motion, some in person, supervised access had resumed.
[26] Despite the tragic loss of their mother, their father’s on-going addictions struggles, and the strife between their caregivers and their father, the children are reported by the Society to have done well in the care of K.M. G.E. is reported to enjoy access with his father. There is some indication in the materials that both children experience behavioural issues surrounding access, with each party having their own theory as to the cause.
The Summary Judgment Motion:
[27] The Society served T.E., who was self-represented at the time, and filed its materials for the summary judgment motion on July 13, 2021. The motion was returnable August 13, 2021.
[28] The Society sought the following relief in the Notice of Motion:
a. Preliminary findings pursuant to ss. 90(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. (the “Act”), with respect to the names, dates of birth and indigenous status of the children, and the date on which G.E. was brought to a place of safety.
b. Summary judgment finding that the children are in need of protection.
c. Summary judgment placing the children into the custody of K.M. and her partner pursuant to s. 102 of the Act.
d. Summary judgment granting access as between T.E. and the children as follows:
i. A minimum of two hours per week in person;
ii. Access to be supervised at a supervised access facility; and
iii. Such further and additional access, or variations to access as the parties agree upon from time to time.
[29] The Society delivered a subsequent affidavit sworn August 9th, 2022, and a factum in preparation for the August 13, 2021, hearing.
[30] K.M. and her partner supported the Society’s motion, save and except with respect to access. Her position was that there should not be any access as between R.E. and T.E. With respect to G.E., they took the position that access should be at their discretion (with the guidance of G.E.’s counsellor) and should only take place once G.E. has had counselling and there has been an opportunity for input by a counsellor as to what is in G.E.’s best interests.
[31] K.M. delivered her affidavit and factum in preparation for the August 13th, 2021, return date.
[32] T.E. opposed the Society’s motion, arguing that he is sober, and that G.E. should be returned to his care subject to a supervision order, while R.E. should be transitioned back into his care over a period of three months.
[33] T.E. filed two affidavits on his own that responded to the Society materials before retaining counsel. He filed a factum while self-represented.
[34] On the return date for the motion T.E. sought an adjournment to retain counsel. The motion was adjourned, on consent, to sittings commencing November 22, 2021.
[35] On October 22, 2021, the Society served two updated affidavits on counsel for T.E.
[36] An 8-page affidavit of T.E. was served by his counsel on November 25, 2022.
[37] On December 2nd, 2021, K.M. delivered a further affidavit, responding to those of the Society, and that of T.E.
[38] The motion was heard December 3, 2021, virtually. T.E. and his counsel appeared.
[39] At the outset of the motion, the motion judge noted that more than 1000 pages of materials had been filed by the Society, K.M., and T.E. She made inquiries of T.E.’s counsel as to which affidavits were being relied upon by him, as no confirmation had been filed. He indicated that only the November 25, 2022, affidavit of T.E. was relevant, and not the two affidavits filed while T.E. was self-represented.
[40] At the hearing T.E.’s counsel advised the court that he had not seen the factums for the Society and K.M., and therefore had also not delivered one. Counsel for K.M. indicated it had been served on T.E. while self-represented. Court was stood down briefly to give counsel an opportunity to receive and review the Society and K.M.’s factums. Counsel for T.E. noted that the Society factum and caselaw was 294 pages long, but no adjournment was sought by counsel for T.E. All parties made submissions on the motion.
[41] What can be gleaned from the transcript of those submissions, and the Reasons, is that T.E. did not oppose the finding that the children were in need of protection, but rather that they should be placed in the custody of K.M.
The Decision Appealed From:
[42] In finding that the children are in continued need of protection and it is in their best interests to be placed in the custody of their maternal aunt, the motion judge made the following findings of significance in considering T.E.’s appeal:
a. The parents met at Homewood Residential Treatment Centre.
b. Despite T.E.’s denial of allegations of domestic violence towards K.B., the evidence is clear with respect to continuous references to T.E. becoming violent and angry during much of the relationship. There is evidence that T.E. threatened K.B. with a knife in G.E.’s presence. The motion judge accepted K.M.’s evidence that she and her family witnessed repeated verbal and emotional abuse of K.B. at the hands of T.E. The motion judge noted that the Society became involved with the family as a result of a call to the police by K.B. alleging domestic violence.
c. T.E. has experienced periods of sobriety and relapses since the Society had become involved with the family in November 2019.
d. T.E. had placed G.E. at risk on January 31, 2021, when drugs and related paraphernalia was left in the child’s room and T.E. was passed out, as evidenced by photographs provided by the paternal grandmother.
e. While urine drug screens had been provided by T.E. to the Society since May 2021, the only disclosure of negative drug screen results without interruption occurred from August 10, 2021, through to October 12, 2021, a period of two months by the time of the summary judgment motion hearing.
f. The urine screens provided by T.E. from May 4, 2021, to October 12, 2021, show three periods of approximately three-week gaps where no urine screen results are provided. There is no explanation for these gaps provided by T.E., other than he suffered from pneumonia during one period, and could not attend during another.
g. T.E. did not sign consents for his medical record or for the release of police reports and records as requested by the Society. These are important and required disclosures.
h. Based on the urine screening evidence, at most there is evidence of sobriety for a period of two months (August 10 to October 12).
i. Two years have elapsed since the Society became involved with the family and the same issues are still before the court. T.E. has a serious drug addiction, characterized by numerous periods of sobriety and relapse. His multiple relapses indicate that the maintaining of sobriety is difficult for T.E., and the drug addiction is very problematic. There is no evidence of extensive or lengthy periods of sustained sobriety.
j. R.E. has never been in the sole care of T.E. and is not strongly bonded to him.
k. During the only prolonged period that G.E. was in his father’s care, he was placed at risk, and had to be removed and brought to a place of safety.
l. There has been little progress made by T.E. with respect to the protection concerns since the Society became involved in 2019. This has resulted in both children being in the care of their aunt for an extended period of time (R.E. since December 2019 and G.E. since February 2021).
m. The children require permanency and stability. They cannot wait while T.E. addresses his issues. G.E. has moved too many times. K.M. is the only family R.E. knows. The children are thriving in their current arrangement. It is not in their best interests to disrupt them from their current arrangements. There is no genuine issue for trial in this regard. The evidence clearly supports a custodial arrangement in accordance with the existing status quo.
[43] With respect to access, in light of K.M.’s evidence as to behavioural concerns and anxiety displayed by the children following periods of access, the motion judge found there was a triable issue as to what access is in the best interests of the children.
[44] At the hearing of this appeal the parties advised that a long motion was scheduled to deal with temporary access, with the trial likely happening late fall or early winter.
Preliminary Issues:
Appeal Not Properly Perfected
[45] The Society argues in its factum that T.E. did not take the proper steps to perfect his appeal by service the proper appeal book and compendium, an exhibit book, the transcript and factum. The Society argues that the factum filed reads as an unsworn affidavit, which includes references to evidence and argument not before the motion judge. The Society sought to have the appeal dismissed.
[46] The Society, appropriately so, took the necessary steps to correct the deficiencies with respect to the appeal book and compendium, exhibit book and transcript. The Society has ensured the proper evidentiary record is before the court to determine the appeal. Having said this, at the hearing of the appeal the Society remained concerned that the Notice of Appeal does not clearly state grounds for the appeal. The Society and K.M. were prepared to proceed but did not wish to be caught off-guard by arguments for grounds of appeal not specified in the Notice of Appeal. This was not an issue during the hearing of the appeal. The appeal was argued on its merits and not dismissed for procedural irregularities.
Motion for Fresh Evidence
[47] T.E. sought to adduce fresh evidence at the hearing of the appeal with respect to his sobriety, his character and abilities as a parent, challenges he has experienced with the children’s caregivers and maternal family with respect to access, a recent RCMP investigation with respect to K.M.’s son, and his interactions with the Society. Some of the evidence pre-dates the motion hearing, and some pertains to post-motion events.
[48] No formal motion was brought. An oral request was made at the hearing of the appeal. The Society brought a formal motion for fresh evidence responding to the fresh evidence the appellant sought to adduce. The Society’s primary position was that the oral motion of T.E. should be denied, in which case the Society would abandon its motion.
[49] For oral reasons delivered at the hearing of the appeal, the motion for fresh evidence was denied.
Analysis:
Ineffective Assistance of Counsel:
[50] T.E. argues that he did not receive effective representation from his counsel at the motion hearing. Specifically, he takes issue with the decision of his lawyer to advise the motion judge that the affidavits filed by T.E. while self-represented, were not relevant and did not need to be considered by her. He argues that the court could not have had a complete an accurate picture of his evidence on all issues in the 8-page November 25th affidavit that his lawyer said was the only relevant evidence from T.E. He expresses concern that the motion judge had over 1200 pages of material (evidence and law) from the other parties. He states that there were errors in his materials, although he does not specify what they are. He states that the lawyer did not use all the information and documentation he provided him with, including the length of his sobriety. He is of the view that his position was not accurately represented at the motion.
[51] It was evident from T.E.’s submissions at the appeal that his overriding concern was that he felt he had not received a fair hearing, with all of his evidence considered. This was at the heart of all his arguments on all grounds of appeal.
[52] In Windsor-Essex Children’s Aid Society v. R.H.C., 2016 ONCA 595, at para. 5, the Court of Appeal held that the applicable principles to consider in an ineffective assistance of counsel argument are set out by the Divisional Court in K.R. v. CAS, 2015 ONSC 3769, [2015] O.J. No. 2850, at paras. 7-8, which, in turn, draws on the principles articulated in R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60, 203 O.A.C. 56 (C.A.), at paras. 119-120. To succeed in establishing ineffective assistance of counsel in the child protection context as a ground of appeal, the appellant must establish on a balance of probabilities that:
a. The lawyer’s acts or omissions amounted to incompetence, measured against a reasonableness standard and having regard to the circumstances as they existed when the impugned acts or omissions occurred and a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance; and
b. The lawyer’s ineffective representation, if established, caused a miscarriage of justice.
[53] The law is clear that in order to advance a claim of ineffective assistance of counsel, the counsel being criticized must be given notice and provided an opportunity to participate in the appeal to respond to the allegation of incompetence. See: D.M. v. Children’s Aid Society of Ottawa, [2021] O.J. No. 7094, at para. 197.
[54] It is inappropriate to consider a claim of ineffective assistance of counsel when former counsel was not advised of the claim and given an opportunity to respond. See: J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630, [2021] O.J. No. 369 (Div. Ct.), at para. 25.
[55] As former counsel for T.E. was not given notice of this ground of appeal, for this reason alone, this ground of appeal is dismissed.
Procedural Unfairness
[56] T.E. alleges procedural unfairness at the motion hearing. Specifically, he notes that the factums of the Society and K.M. were not received by his counsel, and therefore he could not prepare a proper factum for consideration by the motions judge. Furthermore, not having received the factums until the commencement of the hearing, his lawyer did not have a proper opportunity to respond.
[57] T.E. further alleges procedural unfairness due to the late service and filing of K.M.’s responding affidavit dated December 2nd, 2021.
[58] Neither of these allegations amount to procedural unfairness on the facts of this case. Specifically, I note:
a. T.E.’s counsel at the motion hearing did not seek an adjournment to either respond to the December 2nd, 2021, affidavit of K.M., or to review the factums and prepare a factum on behalf of T.E.
b. T.E.’s counsel made no objection to the consideration of these documents by the motion judge.
c. T.E.’s counsel’s decision not to object, or seek an adjournment, was not unreasonable given:
a. The factums were filed prior to the August 13, 2021 appearance;
b. While no affidavits of service for the factums were provided as part of the evidentiary record on appeal, verbally at the motion hearing counsel for K.M. advised that their factum had been served on T.E. when he was self-represented;
c. Knowing that factums are required for motions for summary judgment, there is no indication on the record that counsel for T.E. made a request for the factum of the Society and K.M. prior to the date of the hearing;
d. While the caselaw attachments made the factum of the Society lengthy, there is nothing in the factum or the caselaw referred to therein that would have been novel or that would have caught counsel by surprise. On the contrary, the legal principles set out in the factum were well-established child protection and summary judgment principles, the facts were based on affidavits received well in advance of the hearing, and the relief claimed was consistent with the Notice of Motion; and
e. T.E. had already put forward his evidence with respect to domestic violence, denying that it occurred. There is likely little that could be added in response to the December 2nd affidavit that would have changed the outcome of the motion. With respect to the lengthy parts of that affidavit pertaining to access, a response setting out a different perspective would have only bolstered the conclusion that access is a triable issue.
Alleged Errors in the Decision
Standard of Review:
[59] In all child protection proceedings, including appeals, the court owes a special duty to protect the safety and well-being of children. The best interests of the children are the paramount concern in child protection proceedings. See: Children’s Aid Society of Toronto v. V.L., 2012 ONCA 890, 249 O.A.C. 388. at para. 15.
[60] Having said this, the function of the court on appeal is not to re-try or re-hear the case. It is not for an appeal court to simply substitute its own decision for that of the motion judge. A reviewable error must be found in a decision in order for the appeal court to interfere with it.
[61] The appellate standard of review applicable to child protection appeals are set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, and on questions of mixed fact and law where there is no extricable legal issue, the standard is palpable and overriding error. See: ALB v Durham Children’s Aid Society, 2021 ONSC 8041 (Div. Ct.).
[62] Examples of palpable error include:
a. Findings made in the complete absence of evidence (which can also amount to an error in law);
b. Findings made in conflict with accepted evidence;
c. Findings based on a misapprehension of the evidence;
d. Findings of fact, drawn from primary facts, that are a result of speculation rather than inference; and
e. Findings of fact based on evidence that has no evidentiary value because it has been rejected by the trier of fact.
See: D.M. v. The Children’s Aid Society of Ottawa, at para. 173.
[63] On matters of mixed fact and law, where the error of the decision-maker can be traced to an error in the legal principles applied, it may be characterized as an error of law that is subjected to a standard of correctness.
The Alleged Errors:
[64] T.E.’s position at the motion hearing focused not on whether the children are in need of protection, but rather whether there was a triable issue as to the remedial order required in light of such a finding. The options before the motions judge were:
a. Supervision order (T.E.’s position);
b. Custody order in favour of K.M. (K.M. and the Society’s position); or
c. To order a trial of the issue.
[65] T.E. clearly disagrees with the decision of the motion judge that there was no triable issue with respect to the remedial order and the finding that the best interests of the children necessitated a custodial order in favour of K.M. The reviewable errors alleged by T.E. were more difficult to glean from the Notice of Appeal and his submissions.
[66] The alleged errors that can be extracted from the Notice of Appeal and T.E.’s submissions pertain primarily to findings of fact. Upon review, the thrust of T.E.’s arguments with respect to the findings of the motion judge is that she did not agree with the conclusions he asked her to draw from the evidence; she, instead, favoured the conclusions the Society asked her to reach. A review of the Reasons and the evidentiary record reveals no errors in the findings of fact of the motion judge that amount to a palpable and overriding error.
[67] Specifically:
a. T.E. argues that the finding of his most recent period of sobriety being only two months (August 10, 2021 to October 12, 2021) is not supported by the evidence, and that his period of sobriety was considerably longer. He argues that the evidence before the motion judge was clear that he had been sober since May 2021, a period of at least 6 months prior to the argument of the motion.
The motion judge was alive to the evidence that T.E. started back on his path to sobriety in February and March 2021 while at detox, and that he provided his first clean drug screen in May 2021. She was also alive to the evidence that he provided clean drug screens from May to October 2021. The concern for the motion judge was that there were periods during that time for which there were no drug screens. In reaching the conclusion that T.E. had only demonstrated sobriety for a period of two months, it was important to the motion judge that the period from August 10, 2021 to October 12, 2021 was the only period for which weekly uninterrupted drugs screens were provided (see paragraph 50 of the Reasons). She found that T.E. provided no clear explanation for the missed drug screens. It was on this basis that she concluded that sobriety had only been demonstrated for two months. This was a conclusion she was entitled to reach on the evidence. There is no palpable and overriding error.
Regardless of whether the period of sobriety was two months or six months, the motion judge’s Reasons read as a whole clearly demonstrates a concern for stability in the placement of the children and T.E.’s history of sometimes lengthy periods of sobriety followed by relapse. Had there been an error in the period of sobriety, which there does not appear to be, it likely would not have changed the decision.
b. While not in the Notice of Appeal, at the hearing of the appeal and in his factum, T.E. took issue with a number of findings with respect to domestic violence. Rule 38(11) of the Family Law Rules, O.Reg. 114/99, as. am., provides that no grounds, other than the ones stated in the Notice of Appeal, may be argued at an appeal hearing unless the court gives permission. No permission was sought or granted, and in fact the Respondents to the appeal objected to the consideration of any grounds not specified in the Notice of Appeal. These issues raised at the appeal hearing must fail on this basis alone.
Had permission been sought and granted, these additional grounds would also fail on the merits. In particular, T.E. argues that the motion judge either misapprehended the evidence with respect to domestic violence or that there was insufficient evidence to support such a conclusion. He acknowledges that he and K.B. “had their issues” but denies that the evidence supports a conclusion that there was domestic violence. He equates the conclusion of domestic violence with there having been physical harm, and states that the evidence does not support a conclusion that there was physical harm.
Domestic violence is a broad term that encompasses more than just physical violence. Of significance to Maddalena J., was K.B.’s reports to the Society worker of a verbal altercation on November 26, 2019, when she reported T.E. to be aggressive and violent, and to a women’s shelter that T.E. had relapsed and was “emotionally, physically and mentally abusive”. The motion judge acknowledged T.E.’s denial of domestic violence, but preferred the hearsay evidence of K.B., and that of K.M. that she had witnessed verbal and emotional abuse of K.B. at the hands of T.E. There was no palpable and overriding error in her doing so.
The motion judge was not correct in finding that T.E. wielded a knife at K.B. in the presence of G.E. The allegation of K.M. is that the knife was used to threaten her husband, father and a family friend while they collected K.B.’s belongings. There is no indication that K.B. was present. Having said this, there remains sufficient evidence on which Maddalena J., was able to conclude the presence of domestic violence. This was but one example.
There are other inconsequential errors, that do not affect the decision itself, such as where K.B. and T.E. met, and the date G.E. was returned from Quebec. These cannot be said to be palpable and overriding.
[68] Despite T.E.’s disagreement with the decision, this was an appropriate case for summary judgment on the finding (in need of protection) and disposition (custody order). Justice Maddalena applied the proper legal principles. There was sufficient evidence for her to make the findings of fact and findings of mixed fact and law that she made. The further and fresh evidence T.E. sought to have considered on this appeal merely confirms the appropriateness of the motion judge ordering a trial of the issue with respect to access.
[69] The motion judge’s reference, as well as reference in this decision to “custody” and “access” does not constitute an error. While T.E. is correct, that both provincial and federal family law legislation has been amended to abandon these terms in favour of “decision-making responsibility” and “parenting time”, the Act retains the older terminology.
[70] Even if an error had been found that warranted appellate review, this is not an appropriate case for a joint custody order as requested by T.E. The evidence would still support the order made. These young children need stability and permanency. It is not yet in their best interests to disrupt their attachment to their current caregivers. T.E. needs to demonstrate a longer period of sobriety, and his ability to parent first. The latter can be accomplished with an access order.
[71] The conflict between T.E. and the maternal family is significant. The maternal family blames T.E. for the overdose death of K.B., while T.E. alleges parental alienation on their part. While T.E. believes that a joint custody order is the only way to resolve the conflict, T.E. and K.M. have not demonstrated an ability to work cooperatively when it comes to the children. The Society continues to struggle to assist them all given the level of conflict. Joint custody would not resolve the current issues between T.E. and K.M. Joint custody would only risk setting up a bigger battle ground over these children and exposing them to even more conflict than they have already endured in their short lives.
[72] The appeal is dismissed.
Costs:
[73] The Society does not seek costs. K.M. does. The Bill of Costs filed by counsel for K.M. shows full indemnity costs of $6,874.36, and partial indemnity costs of $4,124.62.
[74] T.E. argues that no costs should be awarded. He states that this appeal was necessary, primarily because the issues that exist between himself and K.M. over the children cannot be resolved with a mere access order. He argues that this appeal was necessitated by the best interests of his children.
[75] K.M. is a respondent to this appeal. Having said this, her counsel’s involvement was minimal. Submissions made at the appeal were extremely brief and echoed those of the Society. Her factum merely adopted the position of the Society. Neither added to the adjudication of the appeal in any meaningful way. This is not a criticism; it was appropriate for the Society to take the lead on the appeal and for K.M. not to duplicate those efforts. Some costs are warranted to compensate K.M. as a successful party to the appeal for the time spent by her lawyer to review the issues and appear at the hearing to ensure her interests were protected.
[76] Costs shall be paid by T.E. to K.M. in the amount of $2,000 inclusive of fees, disbursements and H.S.T. I consider an award in this amount to be fair and reasonable in all the circumstances.
Nieckarz J.
I agree ____________________________
Sachs J.
I agree _____________________________
Emery J.
CITATION: Children’s Aid Society (Niagara) v. T. E. et al, 2022 ONSC 6313
DIVISIONAL COURT FILE NO.: DC-22/112
DATE: 2022/11/08
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Emery and Nieckarz JJ.
BETWEEN:
Children’s Aid Society of the Niagara Region
Applicant/Respondent on the Appeal
– and –
T.E.
Respondent/Appellant on the Appeal
K.M.
Respondent/Respondent on the Appeal
K.B. (Deceased)
Respondent
REASONS FOR DECISION
Nieckarz J.
Date of Release: November 8, 2022