[ CITATION : Children’s Aid Society of Toronto v. P.L., 2012 ONSC 2477

COURT FILE NO.: FS-10-17125
DATE: 20120425

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s Aid Society of Toronto, Applicant/Respondent on Appeal

AND

P.L. and V.L., Respondents/Appellants on Appeal

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: The Appellants, self-represented

Sherri Smolkin, Counsel for the Respondent, Children’s Aid Society of Toronto

Michal Harel , counsel for the Office of the Children’s Lawyer

HEARD: November 29 and 30, 2011

ENDORSEMENT

[ 1 ] This is an appeal pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11 (“ CFSA ”) launched by V. L. and P. L. (“the Appellants”), who are the biological parents of the child, A. L., who was born […], 2002. The Respondent is the Children’s Aid Society of Toronto (“the CAS”), the entity that administers the CFSA in Toronto.

[ 2 ] The Appellants appeal from the Order of the Honourable Justice Spence of the Ontario Court of Justice made November 22, 2010 following a 14 day trial which took place in the summer of 2010. Justice Spence ordered that A.L. be a ward of the Crown with no access for the purpose of adoption. It is from this decision that the parents appeal.

The Grounds of Appeal

[ 3 ] The Appellants argue the trial judge made several palpable and overriding errors: an inadequate consideration of the best interests of the child; engaged in an inappropriate analysis of protection concerns; and drew incorrect conclusions not based on the facts, specifically that the parents were ungovernable and continued to demonstrate intransigence, a lack of cooperation and bad judgment. The Appellants also argue that the trial judge demonstrated a reasonable apprehension of bias against them.

Standard of Review

[ 4 ] Housen v. Nikolaisen , [2002] 2 S.C.R. No. 31 sets out the different standards of review that apply on appeals. On questions of pure law, the standard of review is correctness. On findings of fact, the standard of appellate review requires great deference to the trial judge’s findings and there must be a palpable and overriding error. Inferences of fact that are made must be clearly wrong to be overturned. If there has been a serious misapprehension of the evidence or an error in law, an appeal court ought to intervene. For a mixed question of law and fact that involves the trial judge’s interpretation of the evidence, the standard is a serious misapprehension of the evidence or palpable and overriding error. It is clear that an appeal court cannot overturn a trial judge’s decision on the basis that it would have come to a difference conclusion: Hickey v. Hickey, 1999 , [1999] 2 S.C.R. 518.

[ 5 ] On March 7, 2007, A.L. was taken from the care of her parents by the Children’s Aid Society of Toronto following a diagnosis of possible rickets by Dr. Kitai, a pediatrician, later determined to be caused by vitamin D deficiency. Other health concerns were identified.

[ 6 ] When the police attended at the family home to investigate, they discovered a marijuana grow operation. A.L. also tested positive for cannabinoids, due to exposure to the drug in the home. The parents were charged both with respect to the drug operation and with failing to provide their daughter with the necessities of life.

[ 7 ] Following her apprehension, A.L. initially resided in the temporary care and custody of the CAS. Subsequently, in July 2007, on consent of the parties, A.L. resided with her maternal aunt, J.C. and her spouse, D.D., for a six month period. She has resided there on a continuous basis since May 9, 2008 and J.C. and D.D. have indicated their plan to adopt A.L. if the appeal is unsuccessful.

[ 8 ] On November 29, 2007, the Appellants abducted A.L. from a supervised access visit at the CAS office. On December 17, 2007, the CAS brought a motion and an order was made that A.L. was a child in need of protection pursuant to s. 37(2) of the CFSA . There was also an order placing A.L. in the care and custody of her maternal aunt and uncle subject to the supervision of the CAS.

[ 9 ] It was not until April 15, 2008 that A.L. was located with her parents in Montreal. The Appellants were arrested, incarcerated and have not had access to A.L. since April 14, 2008. In October of 2008, P.L. pleaded guilty to possession for the purposes of trafficking. Subsequently, both parents pleaded guilty to abduction and endangering the health of A.L. The Appellants were sentenced in the criminal proceedings in April 2009.

[ 10 ] This litigation has a long and protracted history. There were numerous interlocutory motions and appeals. The Status Review Application proceeded to trial before the Honourable Justice Zuker of the Ontario Court of Justice in January and February 2009. Pursuant to a decision dated April 30, 2009, Justice Zuker made A.L. a Crown ward with no access.

[ 11 ] The parents appealed this order and Justice Horkins of the Superior Court of Justice released lengthy written reasons on January 6, 2010 in which she found there was a reasonable apprehension of bias on the part of the trial judge. Justice Horkins, therefore, allowed the appeal and ordered a new trial. Justice Robert Spence of the Ontario Court of Justice heard the second trial in June and August, 2010, releasing lengthy written reasons on November 22, 2010 and that is the decision that forms the subject matter of the appeal before me. The Appellants represented themselves at the second trial, as they did on the appeal.

Motion for Leave to Admit Fresh Evidence on the Appeal

[ 12 ] Before the arguing of the appeal, I heard the Appellants’ motion to admit fresh evidence for the appeal. The motion materials indicated that the Appellants wished to admit the bail review transcripts of V.L., the notes of Detective Zampini, and an affidavit of the Appellants sworn September 27, 2011 containing, inter alia , updated records of Mr. Mathew, the family services worker. At the motion, the Appellants advised the Court that they also wished to admit two further affidavits: one from V.L.; and another from her mother-in-law G.L., both sworn November 28, 2011, which had been served the day prior to the hearing. It was submitted that the fresh evidence was relevant to the issue of A.L.’s best interests and was an update of evidence heard at the trial, which was not available at the time of the trial.

[ 13 ] The motion for leave to admit fresh evidence was opposed by the CAS who argued that it did not meet the stringent test set out in Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.) , 1994 , [1994] 2 S.C.R. 165 in that it was neither reliable nor necessary. Furthermore, it was submitted the Appellants did not satisfy the Court that the fresh evidence could not have been adduced at the trial. It was pointed out that an attempt was made to file the bail review transcript at the trial and Justice Spence ruled it inadmissible. The caseworker, Mr. Mathew, testified at the trial so the updated notes are not new evidence, just a continuation of the evidence from the trial. Furthermore, the affidavits served the day prior to the motion were outside of the time limits for filing materials pursuant to the order of Justice Kiteley and there was no reason these affidavits could not have been filed prior to October 31, 2011. In any event, they were replete with hearsay evidence.

[ 14 ] The Office of the Children’s Law (“OCL”) agreed with the submissions of the CAS except on the issue of the case notes of Mr. Matthew. It was submitted by counsel for the OCL that the updated notes would be of assistance to the Court in understanding A.L.’s current state of mind and her views and preferences. Objection was taken to the two new affidavits due to their late service.

Analysis

[ 15 ] Section 69(6) of the CFSA provides that an appellate court may receive fresh evidence submitted after the decision that is the subject of the appeal. As well, section 134(4) (b) of the Courts of Justice Act, R.S.O. 1990, c. C-43, states that an appellate court may receive further evidence by affidavit, transcript, oral examination or in such other manner as the Court directs.

[ 16 ] The test for the admission of fresh evidence on appeal is set out in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., supra, :

a. Could the evidence have been adduced before?

b. Is the evidence highly relevant?

c. Is the evidence potentially decisive to a determination of the best interests?

d. Is the evidence credible?

[ 17 ] The transcripts of the bail review of V.L. and well as the notes of Detective Zapini were dealt with at the trial. There was an issue of the timing of the testimony of Detective Zampini and the Court permitted her to testify by video conference. However, for reasons not entirely clear, the police officer did not testify at the trial so it would be inappropriate to admit her evidence as fresh evidence on the appeal.

[ 18 ] A request was made to have the bail review transcripts admitted at the trial and a ruling was made by Justice Spence that they were not admissible. The Appellants cannot now attempt to get the transcripts into evidence by way of a motion on the appeal because to do so is to ignore the ruling made by Justice Spence.

[ 19 ] The affidavits of V.L. and G.L. were served a day before the hearing of the appeal, despite the existence of a timetable for delivery of materials. It is unfair and prejudicial to the Respondents to permit these affidavits to be admitted into evidence without the opportunity of a response; furthermore, I am not satisfied they meet the test set out in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., supra, on the issue of reliability or whether the evidence could have been adduced previously.

[ 20 ] With respect to the updated notes of the caseworker, I am prepared to admit these notes as fresh evidence to be considered on the appeal. The notes are exhibits A through H of the fresh evidence affidavit sworn September 27, 2011. Mr. Mathew testified at the trial and these notes are simply updated notes since the time of trial. In my view, these notes met the test set out in the jurisprudence for the admission of fresh evidence: they are highly relevant; they are reliable; they go to the issue of the best interests of A.L. and they could not have been adduced before. I wish to make it clear that the portions of the affidavit of September 27, 2011 making reference to these notes will not be admitted; these paragraphs constitute argument and are not evidence.

[ 21 ] The Appellants’ motion to admit fresh evidence is otherwise dismissed for the reasons set out above.

The Appeal

Issue 1: Did the judge make a palpable and overriding error in concluding that the parents failed to seek medical attention, resulting in severe malnutrition and the diagnosis of rickets?

[ 22 ] The Appellants argue that the trial judge was incorrect when he found there was an “unexplained failure” to get medical attention earlier. It was submitted that the evidence from Dr. Leung demonstrated that he assessed A.L. three weeks prior to her apprehension and he was not alarmed by her physical appearance and certainly did not make a diagnosis of severe malnutrition as found by the trial judge. V.L. did not dispute the diagnosis of rickets, but argued that this was due to the fact that she fed A.L. soy milk which did not have vitamin D.

[ 23 ] Furthermore, although Justice Spence found in his reasons that A.L. had a hip problem, there was no evidence of this before the Court. Dr. Chin had told the parents to watch their daughter’s hip but did not say the rickets had caused a problem with her hip. Similarly, the trial judge’s finding that the parents had failed to take A.L. for medical assessments for years was not supported in the evidence. The Appellants had decided not to have A.L. vaccinated so that her own immune system could develop but this was a decision made in her best interests, not due to neglect. On the whole, it was submitted, the trial judge’s findings were not based on the evidence.

[ 24 ] I reject this ground of appeal. As I have noted, the standard of appellate review for a trial judge’s findings of fact requires great deference and it is only where there is a serious misapprehension of the evidence that an appeal court ought to intervene: Housen v. Nikolaisen, supra.

[ 25 ] On a question of mixed fact and law, the standard of appellate review is that of a palpable or overriding error. An example of such an error would be where findings of fact are made and they are not reasonable or they are unsupported by the evidence.

[ 26 ] Despite the Appellants’ numerous arguments on this point, I see nowhere that Justice Spence made such an error. In his decision, the trial judge reviewed the evidence of the events which had preceded the finding that A.L. was a child in need of protection. She was assessed by Dr. Kitai who was concerned that she might be suffering from vitamin D deficiency rickets. He sent her to the Suspected Child Abuse and Neglect (“SCAN”) unit at the Hospital for Sick Children. The endocrinologists who assessed A.L. noted she had an abnormal gait, weak bones, and evidence of widening of her wrists and ankles. Her height and weight was very low on the standardized growth chart. The note from the Hospital for Sick Children dated June 6, 2007, which was an exhibit at the trial, confirms that blood work indicated she had serious calcium and phosphate deficiency. In addition, a hair strand analysis done was positive for cannabinoids.

[ 27 ] There was other evidence before the trial judge concerning the issue of the medical condition of A.L. upon apprehension. This included a report from the Hospital for Sick Children dated April 30, 2007. The conclusion of Justice Spence that A.L. had severe malnutrition which caused the rickets and other medical abnormalities was amply supported by the evidence, which he set out in his reasons.

[ 28 ] While the Appellants may have had their own reasons for not taking A.L. to the doctor at regular intervals, the evidence at trial was that she had not had medical treatment for a number of years and had developed serious medical issues. It is not disputed that V.L. did not take her daughter to a doctor from 2003 until February 2007. She acknowledged in her evidence that A.L. was showing an unusual gait and her ability to move her legs fully was compromised. The subsequent diagnosis of bone deficiencies was further evidence of the problems caused by the lack of vitamin D. The trial judge’s conclusion that there was a failure to seek medical attention, even after the manifestations of the serious health concerns of A.L. became apparent, was supported by the evidence and I do not find he made an error in fact: Waxman v. Waxman , [2004] O.J. No. 1765 (C.A.) . This ground of appeal must fail.

Issue 2: Did the trial judge demonstrate bias or a reasonable apprehension of bias?

[ 29 ] It is submitted by the Appellants that Justice Spence on June 22, 2010 asked counsel about the requirement that A.L. would have to consent to her adoption, and noted that the child had indicated a wish to see her parents. V.L. argued that although during an exchange with counsel the words “all right” were spoken by the presiding judge, they were not recorded on the transcript. It is submitted that these words constituted an “implied direction to counsel for the child to prepare her for the decision which Justice Spence had clearly already made in his mind.” It is argued that a reasonable person, viewing this exchange, would conclude that the trial judge would not decide the issues in the case fairly and as such, the test for demonstration of reasonable apprehension of bias had been made out and it coloured the entire trial proceedings. While I agree with the submission of V.L. on what constitutes bias or a reasonable apprehension of bias, I do not agree that this has been made out in the case before me.

[ 30 ] The case relied on by the Appellants, R. v. R.D.S. , [1997] 3 S.C.R. 484, states that the test for determining bias is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the decision maker would not decide fairly. At paragraph 31, there is reference to the case of Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, which stated “[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons.” The grounds for the apprehension must be “substantial”.

[ 31 ] In my view, the Appellants are seeking to add a gloss to the interchange between the trial judge and counsel which simply is not there. There is nothing inappropriate in a trial judge asking questions of counsel or parties concerning an issue. To be clear, I do not read the comments of Justice Spence referred to by the Appellants as indicative that he had determined the issue of whether A.L. would be made a Crown ward without access.

[ 32 ] One of the issues that was before the trial Judge was a consideration of A.L.’s preferences, if that information was capable of being ascertained. A reading of the transcript discloses that the judge canvassed that issue with counsel to ascertain if that information had been obtained. There was no direction from the trial judge to obtain the consent, but it is clear that he was simply stating that the views and preferences of the child were issues to be taken into consideration when determining the best interests of the child. In my view, the comments of the Manitoba Court of Appeal in Metis Child, Family and Community Services v. M.(A.J.), 2008 MBCA 30 () , [2008] M.J. No.76 (C.A.) at para. 51 are particularly apt: “Where the welfare of children are concerned, the trial judge may intervene as much as is necessary in order to clarify the facts, confirm his understanding of expert testimony and generally make sure his appreciation of the evidence is correct.” The submission of the Appellants that the trial judge had already decided the issue and was suggesting that the consent of A.L. be obtained is not supported by a reading of the transcript.

[ 33 ] In my view, what the Appellants are asserting is a mere allegation of bias against the trial judge, unsupported by the evidence. This falls far short of the test set out in Miglin v. Miglin, 2003 SCC 24 () , [2003] 1 S.C.R. 303, which states that in order to be successful on an argument of reasonable apprehension of bias, the onus is on the party asserting it to demonstrate that a reasonable and informed person, with full knowledge of the circumstances could conclude that the conduct of the trier of fact gave rise to a reasonable apprehension of bias. This is a high threshold and the Appellants have failed to meet it and this ground of appeal must be dismissed.

Issue 3: Did the trial judge err in his consideration of the best interests test under s. 37(3) of the CFSA ?

[ 34 ] It is submitted by the Appellants that Justice Spence failed to consider important relevant evidence as he was required to under the CFSA . It is alleged that he did not consider the requests of A.L. to see her parents, Dr. Fitzgerald’s note that A.L. had separation anxiety, or the “bad faith” and motivations of the caregiver and aunt J.C.. Further, it is submitted that the evidence of Mary Auld which was relied on by the trial judge was inaccurate, unfair and misleading. It is further argued by the Appellants that the trial judge erred because he assessed A.L.’s best interests at the time of trial when the proper approach is to consider the best interests of the child from the time of apprehension.

[ 35 ] It is clear that the question of the best interests of a child is one that must be considered in light of all of the facts and the situation as a whole. The best interests of the child must take precedence over the interests of the parent. The trial judge must consider the factors set out in the CFSA and then examine the particular circumstances of the case before the Court.

[ 36 ] In considering the best interests of A.L., Justice Spence clearly took into account the various factors enumerated in section 37(3) of the CFSA . He took into account that the Appellants genuinely love their daughter and examined their relationship prior to the abduction. He considered, as he ought to have, the refusal of the Appellants to look in an objective manner at the relationship between J.C. and her husband and A.L. Justice Spence made reference to the criminal convictions of the Appellants, their abduction of A.L. and the effects of that four month period on her, and their lack of compliance with court orders.

[ 37 ] One of the factors that he examined at length was the relationship between A.L.and her aunt and uncle and he found that was a positive relationship. While many of the same allegations were made before Justice Spence concerning the various treatment providers and the foster parents and their negative impact on A.L., he obviously found, as he was entitled to do, that these were not borne out by the evidence.

[ 38 ] Justice Spence, in his reasons, noted that because the Appellants were self-represented at the trial, he gave them considerable latitude in their cross-examination of J.C. and considered the submissions of the parents concerning the aunt’s motives for wanting to adopt A.L. He stated,

I found the aunt’s testimony to be about as balanced as it could be. By deciding to step in and to offer a home for A.L., she placed herself in a most unenviable and stressful situation. Given those challenges, she seems to have coped very well and, most important, she has managed to meet A.L.’s physical and psychological needs. Irrespective of the foregoing, in deciding the legal issues, my focus must be on A.L., on what is in her best interests, not on the familial differences between the sisters.

[ 39 ] The trial judge came to the conclusion that there was a risk of harm to the child if she were returned to the Appellants and that it was in her best interests to remain with her maternal aunt and her husband. In my view, it is clear that the trial judge correctly considered the factors set out in the CFSA and there is ample evidence upon which to support the findings of Justice Spence. While the Appellants prefer to make reference to snippets of evidence that they allege was ignored by the trial judge, I do not accept this submission. The onus on Justice Spence was to consider the evidence in its entirety [emphasis mine] when determining the best interests of A.L. and, in my view, his analysis bears testament to the fact that this is what he did. The trial judge was entitled to assess the credibility of the evidence and to determine the proper weight to be assigned to it. The fact that the Appellants do not agree with the trial judge’s assessment does not mean that he made a palpable and overriding error.

[ 40 ] I reject the argument of the Appellants that the timing of the assessment ought to be at some date other than the time of trial. In Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.) , supra , the Court noted, at para. 35,:

It is clear that it is not the function of the status review hearing to retry the original need for a protection order. That order is set in time and it must be assumed that it has been properly made at that time. In fact, it has been executed and the child has been taken into protection by the respondent society. The question to be evaluated by the courts on status review is whether there is a need for a continued order for protection. …Children’s needs are continually evolving as they are governed by occurrences in the lives of children and their families which cannot be held still in time. These ever-changing circumstances must be taken into account…

[ 41 ] There is simply no merit to the argument advanced by the Appellants that the trial judge somehow misapprehended the timing of the assessment of the best interests of the child. This ground of appeal must fail.

Issue 4: Did the trial judge err in his finding that the parents had continually demonstrated intransigence, a lack of co-operation, bad judgment and were ungovernable?

[ 42 ] The Appellants argue that the trial Judge ignored evidence that supported they were good parents who loved A.L. and that he made errors of fact in coming to the determination that he did. It was submitted that the parents had agreed to do whatever the CAS requested of them. They denied that there had been a lack of compliance with orders of the Court. It was pointed out that V.L. had advised the Court at the outset of trial that she and her husband recognized their mistake in having marijuana in the home. Further, the Appellants deny that they ever exhibited hostility towards the aunt and submit that they would have been prepared to work with her in the best interests of A.L.

[ 43 ] Again, given that this ground of appeal relates to a finding of fact made by the trial judge, the standard of review is that of palpable and overriding error: Hausen v. Nickolaisen, supra.

[ 44 ] In his reasons, Justice Spence sets out the evidence he relied on in coming to his conclusion that the Appellants exhibited poor judgment both before and after the abduction: the failure to seek earlier medical attention for A.L. despite the abnormalities she was demonstrating; the fact that they ran a grow operation in their house; the decision to abduct A.L.; their lack of objectivity towards the aunt and uncle and their conduct towards A.L.; and their conduct during the trial including a history of failing to attend court dates and lack of compliance with court orders.

[ 45 ] In my view, Justice Spence’s analysis was balanced and fair towards the parents. He stated,

I have no doubt that the parents love A.L.…If this were enough to return a child to her parents, I would not hesitate to make an order sending A.L. back to her parents. However, this is not what this case is about. As the evidence unfolded during the trial, the over-arching theme became the parents’ unremitting bad judgment. And here I am not referring to judgment in respect of minor issues, but, rather, the kind of judgment that goes to the very core of A.L.’s safety, as well as her emotional and physical well-being. Regrettably, this bad judgment is not something which is merely historical in nature, but instead, something which the parents have never demonstrated either a willingness or ability to address, right up to and during the course of trial.

[ 46 ] The judge then went on to summarize, in some length, the instances where he found the judgment of the Appellants to have been severely lacking.

[ 47 ] I do not intend to go through each of the Appellants’ complaints in this area. The reasons make it clear that while the Appellants clearly love their daughter, their conduct has not been that of reasonable parents. Rather, there are very serious concerns about the ability of the Appellants to exercise good judgment and to accept and abide by orders of the Court.

[ 48 ] The case law is clear that the findings made by trial judges in these circumstances are to be accorded great deference. The trial judge is the one in the best position to make determinations of credibility and to assess the proper weight to be given to testimony of a particular witness. Justice Spence makes it clear in his reasons why he found the evidence of J.C. compelling and why he came to the decision that he did. It is not the function of this Court to “second guess” the decision of the trial judge in the absence of an overriding and palpable error, which I do not find in the case at hand. This ground of appeal must fail.

Issue 5: Did Justice Spence err in his assessment of the ongoing need for protection?

[ 49 ] In my view, this ground of appeal is subsumed in my analysis of issue #3. I would only add that it was not the function of the trial judge to re-try the original application for a finding that A.L. was a child in need of protection. Justice Spence was charged with the duty of accepting the finding made by Justice Waldman that A.L. was a child in need of protection because of neglect and to review the evidence after that finding and determine if she continued to be in need of protection.

[ 50 ] In his reasons, Justice Spence makes it clear that he accepted the finding of Justice Waldman that A.L. was in need of protection and to decide whether she continued to be and to assess what is in her best interests. This is a correct statement of his duties as trial judge.

[ 51 ] In his decision, Justice Spence spends a significant amount of time setting out the evidence that persuaded him that the poor judgment of the parents was a critical concern on the issue of A.L.’s safety and he commented:

Regrettably, this bad judgment is not something which is merely historical in nature, but, instead, something which the parents have never demonstrated either a willingness or an ability to address, right up to and during the course of trial…

[ 52 ] There was ample evidence which was cogently set out in the reasons on which Justice Spence came to this conclusion. There was no error made, either in law or in fact. He correctly applied the test on a status review application, he accepted the findings made by Justice Waldman and he analyzed the evidence to make the determination whether A.L. continued to be in need of protection and then he considered what was in her best interests. This ground of appeal must fail.

Conclusion

[ 53 ] The Appeal is therefore dismissed. The order of Justice Spence dated November 22, 2010 making A.L. a Crown ward with no access to her biological parents, for the purpose of adoption, is upheld.

D.A. Wilson J.

Date: 20120425