ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-11
DATE: 2012-02-14
B E T W E E N:
J.L.,
Michael Cupello , for the Appellant
Appellant
- and -
FAMILY AND CHILDREN’S SERVICES OF THE DISTRICT OF RAINY RIVER,
David Elliot , for the Respondent
Respondent
HEARD: February 6, 2012, at Fort Frances, Ontario
Mr. Justice J.S. Fregeau
Decision On Appeal
Nature of the Appeal
[ 1 ] This Appellant, J.L., appeals to the Superior Court of Justice in Fort Frances, Ontario from the final order of the Honourable Justice T. McKay dated February 15, 2011. The Appellant requests that Justice McKay’s order of Crown Wardship with no access be set aside and that a new trial be ordered.
Background
[ 2 ] The trial before Justice McKay involved the disposition portion of a child protection case. The children who are the subject of the proceeding are A.L., born […], 2005, a member of the M[…] First Nation, and N.L., born […], 2006, a member of the L[…] First Nation.
[ 3 ] The Appellant, J.L., is the father of the children. M.S. is the mother of the children. Mr. J.L. is a member of the L[…] First Nation. Ms. M.S. is a member of the M[…] First Nation.
[ 4 ] Family and Children’s Services of the District of Rainy River (the “ Society ”) first became involved with this family in May of 2005. Parental substance abuse and domestic violence were the primary concerns at that time. Society involvement continued through the spring of 2006. In late April 2006, the Appellant contacted the Society and reported that he and Ms. M.S. were running out of food and didn’t have heat in their residence as the gas had been disconnected due to non-payment. Mr. J.L. advised the Society that he and Ms. M.S. were having financial difficulties and that their relationship was “very rocky”. The Appellant suggested to the Society that they come and assume control of the children, which the Society did. On April 26, 2006, the parents entered into a Temporary Care Agreement with the Society, placing the children in the care of the Society for an initial period of three months. At this time, A.L. was approximately 15 months old and N.L. was approximately 2 months old.
[ 5 ] The original Temporary Care Agreement and subsequent Customary Care Agreements were extended a number of times while the Society monitored and attempted to work with the parents regarding their issues. This occurred over a period of more than 29 months. On October 4, 2008, Mr. J.L. refused to again extend the Customary Care Agreement. This resulted in the Society formally apprehending the children. The children have been in the continuous care of the same foster parents from April 28, 2006 to the time of trial. The Appellant acknowledged, at the hearing of this appeal, that the evidence is overwhelming that the children are receiving excellent care from their foster parents.
[ 6 ] On September 17, 2009, a statement of agreed fact was filed and the parties consented to an order that the children were in need of protection pursuant to the relevant provisions of the Child and Family Services Act , R.S.O. 1990, c. C. 11, as am. (the “ Act ”). The trial regarding disposition began in April 2010 and continued sporadically over a number of days, concluding on November 9, 2010. The Reasons for Judgement of Justice McKay were released on February 15, 2011.
[ 7 ] In his Reasons for Judgement, Justice McKay held that he was “left with essentially un-contradicted evidence” from Dr. Michael Stambrook, Clinical Psychologist, regarding the harmful effect on the children of any move from their current foster placement. Justice McKay found as a fact that “any change from the current placement would have a detrimental impact on the children and is not in their best interests”. Justice McKay further found that even if the parents had made “sufficient progress” to argue for a return of the children (which he found they had not) such a return would not be in the children’s best interests. Justice McKay held that the order which was in the best interests of the children was an order for Crown Wardship with no access.
The Grounds of Appeal
[ 8 ] The Appellant submits that the learned trial judge made errors of fact in ignoring or placing inadequate weight on the fact that there was no evidence that the historical problems of the mother and father regarding alcohol, drug use and domestic violence continued beyond September 2009. The Appellant submits that the learned trial judge made errors of fact in failing to recognize that Mr. J.L. and Ms. M.S. maintained contact with the children between April 2006 and the time of trial in 2010. The Appellant also submits that the learned trial judge committed errors in law by placing undue weight and emphasis on section 37(3)7 of the Act and too little weight on all other factors set out in section 37(3) and in section 37(4) of the Act.
Position of the Appellant
[ 9 ] The Appellant submits that the evidence at trial was capable of establishing both a commitment by Mr. J.L. and Ms. M.S. to maintain a meaningful relationship with their children by way of access and of their making significant progress to deal with all issues that caused their children to go into care in 2006. The Appellant submits that the evidence shows that between September 2009 and the time of trial, Mr. J.L. and Ms. M.S. had discontinued their use of alcohol and ceased to be involved in any further acts of domestic violence. The Appellant further submits that the evidence established that both parents had attended and completed alcohol/drug, relationship and domestic counselling which substantially reduced the risk of returning the children to the parents under society supervision and support.
[ 10 ] The Appellant submits that the learned trial judge committed errors of fact in ignoring or placing inadequate weight on this evidence.
[ 11 ] The Appellant submits that the learned trial judge made it clear that even if the parents had made sufficient progress to validly argue for a return of the children, that such a return would not be in the children’s best interests. The Appellant submits that this finding of law of the learned trial judge was based on inordinate weight being placed on but one of thirteen enumerated factors the trial judge was statutorily required to consider in determining the best interests of the children under section 37(3) of the Act. The Appellant submits that the learned trial judge did not expressly turn his mind to, nor properly consider, the balance of the factors in section 37(3) of the Act nor properly consider section 37(4) of the Act, which he was required to do given the native status of the children. The Appellant submits that there was little or no consideration given to the children’s culture, heritage, tradition and cultural identity.
[ 12 ] The Appellant submits that the trial judge committed an error in law in failing to expressly consider and properly balance all factors set out in section 37(3) and (4) and thereby committed reversible error.
Position of the Respondent
[ 13 ] The Respondent submits that there was evidence before the learned trial judge establishing that the parents did not maintain consistent contact with the children between 2006 and 2010. The Respondent suggests that the Society attempted to move reunification plans along but that the parents repeatedly cancelled or shortened visits. The Respondent further submits that the evidence before Justice McKay included evidence that the parents did not properly prepare for access visits, by failing to provide food for the children or in being tired and falling asleep during visits.
[ 14 ] The Respondent submits that there was evidence before the learned trial judge to allow him to come to the conclusion that the parents had not made sufficient progress in dealing with their issues to validly argue for a return of the children to them.
[ 15 ] The Respondent submits that the Society first became involved with the family in 2006 because the parents were experiencing difficulties with alcohol and substance abuse, domestic violence and police involvement. The Temporary Care and Customary Care Agreements were entered into by the parents and the Society to allow the parents to obtain assistance with the issues they were facing. Terms and conditions of the agreements included the parents attending drug and alcohol assessments, attending counselling to resolve alcohol/drug and relationship issues and completion of anger management counselling. The Respondent submits that the agreements were extended on a number of occasions to allow the parents more time to deal with their issues. The Respondent submits that the evidence before the learned trial judge included particulars of the parents numerous appearances before the criminal courts for alcohol and domestic violence related matters up to and including November 2009.
[ 16 ] The Respondent submits that trial exhibits 16 through 20, being various letters and certificates confirming the parents’ enrolment in and attendance at alcohol/drug and family counselling and treatment programs, failed to establish the dedication and commitment required of the parents to resolving these issues to the point where the return of the children to them could be considered. The Respondent submits that the learned trial judge made no error in his assessment of this evidence.
[ 17 ] Further, the Respondents points to incidents of domestic violence and alcohol use which postdate the attendance of one or the other of the parents at these programs. The Respondent submits that the evidence at trial establishes alcohol use and domestic violence up to and beyond September 2009, acknowledging there is a lack of evidence of this sort of conduct in the several months immediately prior to the start of the trial. It is suggested that this illustrates an inability on the part of the parents to break from long-standing patterns of alcohol and substance abuse and related domestic violence and that this was the essence of the findings of the trial judge on this issue.
[ 18 ] The Respondent submits that the learned trial judge did not place undue weight and emphasis on section 37(3)7 of the Act to the exclusion of the other factors he was statutorily mandated to consider. The Respondent submits that the Reasons for Judgement make it clear that Justice McKay specifically directed his mind to the six factors set out in section 37(3) that he considered relevant given the facts and circumstances of the case before him. The Respondent submits that the trial judge was not required to comment on factors he did not see as relevant or explain why he did not see certain factors as relevant.
[ 19 ] The Respondent further submits that the learned trial judge also made specific reference to the requirement that he consider section 37(4) of the Act in making his determination as to the best interests of the children. The Respondent submits that the evidence before Justice McKay established that the Appellant and Ms. M.S. were encouraged to introduce culturally appropriate activities to the children during their visits, such as Ojibway vocabulary lessons and providing lists of Ojibway words to the foster parents.
[ 20 ] The Respondent submits that the evidence before Justice McKay was that neither the Appellant or Ms. M.S. had engaged in any meaningful cultural teachings or activities with the children over the four years that they had had visits with them. The Respondent submits that this factor, and all evidence relating to it, was considered by the learned trial judge in his disposition. Due to the nature of the evidence relating to this factor, the Respondent suggests that little weight was placed on it by the trial judge in relation to other relevant factors and the evidence heard pertaining to them.
Standard of Review
[ 21 ] The standard of review applicable to questions that arise on appeal is well settled. The standard of review on pure questions of law is one of correctness. An appellate court is free to replace the opinion of a trial judge with its own on a pure question of law. The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen.
[ 22 ] The Appellant is requesting a new trial. The Courts of Justice Act , R.S.O. 1990, Chap. C.43 provides, in section 134(6) , that a court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred.
Discussion
[ 23 ] I am not persuaded that the Reasons for Judgement of Justice McKay, dated February 15, 2012, contain reversible errors of fact or law. In turn, I am not persuaded that any substantial wrong or miscarriage of justice has occurred that would warrant my ordering of a new trial. My reasons for this decision follow.
[ 24 ] Justice McKay’s reasons have to be read carefully and in their entirety. In paragraph 24, Justice McKay finds that both the Appellant and Ms. M.S. minimized the identified issues they faced, both individually and as a couple. In regard to the Appellant, Justice McKay found, in paragraph 24, that “essentially, he has accomplished very little in terms of dealing with his issues over the past four years, and creates the impression that it is his intention to simply wait until the children are returned before actually dealing with many of the issues that he needs to deal with.” Justice McKay expressly acknowledges that the Appellant and Ms. M.S. “have made some efforts to address some issues”. However, he clearly found that “the central issues have not been dealt with.”
[ 25 ] Justice McKay did not expressly address the fact that there was no evidence suggesting ongoing alcohol abuse and domestic violence between September 2009 and the date of trial. With the benefit of hindsight, it would have been preferable if he had. However, it seems to me obvious from reading his reasons as a whole that this relatively short period of abstinence was of little consequence given the depth and magnitude of issues facing the parents and their limited efforts to meaningfully address them in the three and one half years between when the children went into care in April 2006 and September 2009. I find no reversible error on the part of Justice McKay on this issue.
[ 26 ] I am not persuaded that Justice McKay made any error of law in the application of section 37(3) and (4) of the Act in coming to the conclusion he did in regard to disposition. It is my opinion that he correctly applied the law as set out, considering all the evidence before him.
[ 27 ] The Child and Family Services Act , sections 37(3) and (4) read as follows:
“Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3) .
Where child an Indian or native person
(4) Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity. R.S.O. 1990, c. C.11, s. 37 (4) .”
[ 28 ] Due to the aboriginal status of the children, pursuant to section 37(4) of the Act Justice McKay was statutorily required to take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the children’s cultural identity. This provision is mandatory. If the child is native, a trial judge must consider and give appropriate weight to the importance of preserving the child’s cultural identity. This is different than the application of section 37(3) , where the trial judge is required to take into consideration only those of the 13 enumerated factors that he considers relevant.
[ 29 ] Section 37(4) of the Act requires a trial judge to “take into consideration”, together with relevant factors from section 37(3) , and bearing in mind and applying the paramount purpose of the Act, “the importance...of preserving the child’s cultural identity.” To “consider” means to think carefully about or take into account when making a decision. Thus, a trial judge has correctly applied the relevant provisions of the Act if he has taken into account, in making a determination as to the best interests of a child, the factors from section 37(3) which he deems to be relevant in a particular case and has also taken into account the importance of preserving the child’s cultural identity if the child is native. All relevant factors will be of varying degrees of importance depending on the facts and circumstances of a particular case. It is the role of the trial judge to exercise his discretion in appropriately balancing the factors he determines to be relevant together with cultural considerations if the child is native.
[ 30 ] My review of Justice McKay’s reasons for judgement suggest to me that he did consider and take into account the importance of preserving the cultural identity of these children. He found that the foster parents were prepared to do what they could to promote the native culture for the children. More significantly, in my opinion, is that Justice McKay made findings which could lead one to the conclusion that the parents had made little or no effort themselves, while the children were in care for over 29 months, to promote and preserve the cultural identity of the children. While this was not expressly set out in Justice McKay’s reasons, I find it to be implicit, based on the evidence on this issue which was expressly discussed in his reasons.
[ 31 ] The Appellant submits that Justice McKay placed insufficient weight on this consideration and placed inordinate weight on section 37(3)7 of the Act, which states: “The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.” I disagree.
[ 32 ] Based on the evidence as reviewed by Justice McKay in his Reasons for Judgement, it was open to him, in the context of determining the best interests of these children, to come to the conclusion that the importance of preserving the children’s cultural identity was outweighed by the importance of continuity in the children’s care and the possible effect on the children of disruption of that continuity. In this regard, Justice McKay referred to the “essentially un-contradicted evidence” of Dr. Stambrook:
“Any move for these children from this current foster placement, given the longevity of the placement, would be clearly deleterious to the children, would provoke an attachment rupture that would not be in the children’s best interests, and would be inappropriate and deleterious to these children’s well being, their security, their psychological adjustment and, their development.”
[ 33 ] Justice McKay balanced this powerful and very relevant evidence against the evidence of an ambivalent parental attitude to promotion and preservation of cultural identity and came to his decision. Justice McKay expressly considered the 6 of 13 factors from section 37(3) of the Act that he held to be relevant. Justice McKay expressly considered, and reviewed the evidence relevant to, section 37(4) of the Act. I find that Justice McKay correctly applied the relevant provisions of the Act. I find no error of law in his decision. The appeal is dismissed.
[ 34 ] While the Respondent has requested costs of the appeal in his factum, costs were not discussed by either party in oral argument. In any event, I do not feel this to be an appropriate case to award costs against the Appellant and none are awarded.
“Original signed by”
The Hon. Mr. Justice J.S. Fregeau
Released: February 14, 2012
COURT FILE NO.: FS-12-11
DATE: 2012-02-14
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: J.L., Appellant - and – FAMILY AND CHILDREN’S SERVICES OF THE DISTRICT OF RAINY RIVER, Respondent DECISION ON APPEAL Fregeau J.
Released: February 14, 2012
/mls