ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 3848/11
Date: 2012/04/27
B E T W E E N:
The Children’s Aid Society of the Niagara Region
Applicant (Respondent in the Appeal)
- and -
M.B.1
Respondent (Appellant in the Appeal)
- and -
M.B.2
Respondent
- and -
S.W.
Respondent
Tracy Pybus, for the Respondent in the Appeal
Richard H. Barch, Q.C., for the Appellant M.B.1
Not appearing
Not appearing
Erik Grinbergs, for the Office of the Children’s Lawyer
HEARD: April 13, 2012
The Honourable Justice J. R. Henderson
DECISION ON APPEAL
INTRODUCTION
[ 1 ] This is an appeal by M.B.1 (“B.1”) from the order of Justice J. P. Nevins of the Ontario Court of Justice, made on September 22 and 23, 2011, whereby it was ordered that the child, A.B. (“A.”), be made a Crown ward without access to B.1.
[ 2 ] In these proceedings, B.1, the natural mother of A., contested the application by The Children’s Aid Society of the Niagara Region (“the CAS”) for Crown wardship and the CAS request that there be no access. The order under appeal was made pursuant to a Summary Judgment motion brought by the CAS. As a consequence of the decision on the Summary Judgment motion, a trial was not held.
[ 3 ] In this appeal, there is no issue as to Justice Nevins’ decision to make A. a Crown ward. The only aspect of the decision that is in dispute in the appeal is the order for no access to B.1.
THE BACKGROUND FACTS
[ 4 ] A. was almost 11 years old at the time of the order, having been born on […], 2000. B.1 has an older child, S.J.W. (“S.J.”), who lived with B.1 and A.. Also, for a period of time S.W. (“W.”), B.1’s common-law spouse, lived with the family, but W.’s relationship with B.1 ended by September 2010.
[ 5 ] During the course of his cohabitation with B.1, W. impregnated S.J. resulting in the birth of S.J.’s daughter, E., who was born on […], 2008. Shortly thereafter, B.1 obtained custody of E..
[ 6 ] Between 1997 and 2009, the CAS had some involvement with B.1, regarding B.1’s parenting of both S.J. and A., primarily with respect to allegations of inadequate supervision and inappropriate discipline.
[ 7 ] In early 2009, the CAS became involved with the child E.. In a separate court proceeding, Justice E. Martin released a decision dated January 4, 2011 ordering that E. be made a Crown ward without access. The CAS application with respect to E. is not the subject of this appeal.
[ 8 ] The CAS commenced its application with respect to the child A. in December 2009, and thereafter the CAS delivered an amended application in January 2010. A. was placed in the temporary care and custody of the CAS by way of a court order dated January 26, 2010. At that time, there was concern about A.’ behaviour and the possibility of A. being at risk of sexual abuse by W.. In the amended application there was an order made on consent, dated June 7, 2010, by which A. was found to be a child in need of protection.
[ 9 ] In May 2011, the CAS delivered a Fresh as Amended application, in which the CAS requested a new finding that A. was a child in need of protection; an order that A. be made a Crown ward for the purposes of adoption; and an order for no access. B.1 filed an Answer to the Fresh as Amended application, by which B.1 contested all of those requests of the CAS. A trial of the Fresh as Amended application was scheduled for the week of September 19, 2011. The CAS brought the aforementioned Summary Judgment motion returnable at the start of the trial.
[ 10 ] During the course of the court proceedings between January 2010 and September 2011, there were many access visits, most of which were supervised by CAS representatives. As a consequence, whatever relationship there was between B.1 and A., was somewhat preserved.
THE DECISION ON THE SUMMARY JUDGMENT MOTION
[ 11 ] In the course of giving reasons for his decision on the Summary Judgment motion, Justice Nevins indicated that he had read all of the materials before him, including the affidavit of B.1; two medical reports produced by B.1; 8 or 9 affidavits on behalf of the CAS; a Parenting Capacity Assessment prepared by Dr. Amitay regarding B.1’s parenting of E. (not A.); and a Child Advocacy and Assessment Program (“CAAP”) report which purported to assess A. for “an impact of maltreatment”.
[ 12 ] On September 22, 2011 Justice Nevins gave oral reasons for his decision, the transcript of which is 26 pages in length. The first 15 pages of the transcript contain a general introduction, a thorough analysis of the law with respect to Summary Judgment motions, and a history of the court proceedings.
[ 13 ] The judge’s analysis of the merits of the application commences at page 15 of the transcript. Between pages 15 and 25 of the transcript, Justice Nevins examined the evidence related to B.1’s mental health; Dr. Amitay’s Parenting Capacity Assessment; the CAAP report; and the two medical reports produced by B.1. All of this evidence was analyzed in consideration of the issue of whether the court should make an order for Crown wardship, an extension of Society wardship, or a supervision order.
[ 14 ] At page 22, and again at page 25, of the transcript, Justice Nevins concluded that B.1 was not likely to cooperate with the CAS, and therefore a supervision order would not be an option. The possibility of a Society wardship was also rejected. Consequently, Justice Nevins concluded that A. should be made a Crown ward.
[ 15 ] Then, on page 26, Justice Nevins turned to the access issue. The entire access issue is dealt with in less than one full page of the transcript, in approximately 23 lines. In the discussion of the access issue, there is no reference to any of the evidence and there are no specific findings of fact. The first 7 lines of the access discussion essentially form a statement that an access order does not necessarily prohibit the adoption of the child.
[ 16 ] Thereafter, Justice Nevins said,
“Now, with that in mind, it is my intention to make an order that there be Crown wardship. There will be an order for access in the discretion of the Society. But, when I do the endorsement, it will specifically say that such access is with a view to preparing the child for permanent placement, which I trust is a rather delicate way of saying good-bye visits…”
[ 17 ] Then, Justice Nevins finished his discussion of the access issue by stating:
“In addition, the endorsement will read that such access is to be terminated upon the Family and Child Services placing the child with proposed adoptive parents. In my opinion it should not require another motion back at court to terminate the access order. Now whether that, in fact, does become necessary, I can’t control that.”
[ 18 ] Understandably, there was some confusion in counsel’s mind after the September 22, 2011 decision. Apparently, this confusion was communicated to Justice Nevins who reconvened court on September 23, 2011 for the purpose of clarifying the access order. On September 23, 2011, counsel for the CAS and counsel for A. were present in court, but neither B.1 nor B.1’s counsel were present. Justice Nevins stated that he knew that B.1 or her counsel had been notified, and then he continued in their absence. After he solicited submissions from counsel for the CAS and for A., Justice Nevins said:
“My intention was certainly that there was going to be an order for Crown wardship no access and I would, I hope that that message was clear in the rest of my reasons …
But the purpose was to just provide a framework so that the Children’s Aid Society could arrange for some - I can’t think of a better word other than terminating meetings - good-bye access visits …
Once the child was placed for adoption then there would no longer be access. But I can well understand your dilemma and I, as I say, again, thanks for bringing it to my attention. It’s hanging there in the air and that in itself might be a triable issue whether there should be access and what amount of access ….”
[ 19 ] Then, in summing up, Justice Nevins said,
“My order of the 22 nd of September is corrected and varied as follows, and then it will read: Order to go. Crown wardship. No access for purposes of adoption.”
THE STANDARD OF REVIEW
[ 20 ] The standard of review by an appellate court varies depending upon whether the appeal is based upon an error of law or an error of fact. If the appeal is based upon an error of law, the standard of review is that of correctness. See the case of Housen v. Nikolaisen, 2002 SCC 33, at paragraph 8.
[ 21 ] Often however, an appeal is based upon an error of mixed fact and law, or an erroneous application of the law to the facts. In that respect, I accept the discussion that is summarized at paragraph 36 of the Housen case. That is, unless the true error can be characterized as an error in law, a trial judge’s decision should not be overturned absent a palpable and overriding error.
ANALYSIS
[ 22 ] The most significant error alleged by B.1 was that Justice Nevins provided no analysis whatsoever of the access issue. Justice Nevins properly and thoroughly considered the law and evidence with respect to his finding that the child was in need of protection, and with respect to his order for Crown wardship, pursuant to s.57 of the Child and Family Services Act (“CFSA”).
[ 23 ] However, the proper procedure would have been for Justice Nevins, having decided to make a Crown wardship order, to then turn his mind to s.59 of the CFSA with respect to the issue of whether access should be permitted along with the Crown wardship order.
[ 24 ] Section 59 reads in part:
(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.
(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child’s future opportunities for adoption.
[ 25 ] Therefore, it is correctly submitted that Justice Nevins was required to consider whether the relationship between B.1 and A. was beneficial and meaningful to A., and to further consider whether an access order would impair A.’ future opportunities for adoption. Clearly, Justice Nevins did not mention s.59 in his reasons; did not mention either of the two factors referred to in s.59(2.1); and did not analyze any evidence that might apply to either of those two factors.
[ 26 ] It may be that Justice Nevins simply did not consider s.59(2.1), which would constitute a palpable and overriding error. In the alternative, Justice Nevins may have considered s.59(2.1) but failed to articulate his analysis of that section of the legislation in his reasons. The failure to give adequate reasons for a decision is, in itself, justification for allowing an appeal. See Parker v. Casalese and Diamond Auto Collision Inc. v. Economical Insurance Group, 2007 ONCA 487. In either case, whether Justice Nevins failed to consider s.59 (2.1) or failed to articulate his reasons, the appeal should be allowed on this point alone.
[ 27 ] Furthermore, in any decision with respect to access, a court is required to consider the child’s best interests as set out in s.58 of the CFSA. Section 37(3) of the CFSA provides a list of factors that should be considered whenever a court is directed to consider the best interests of a child. In particular, s.37(3) number 9 lists “the child’s views and wishes, if they can be reasonably ascertained” as one of the factors for consideration. In this case there was evidence contained in many of the affidavits that A. had a close relationship with her mother, and that A. had a very strong desire to see her mother and/or live with her mother. It must be remembered that A. was almost 11 years old at the time of the proceedings before Justice Nevins, and thus would be quite capable of expressing her views and wishes.
[ 28 ] In Justice Nevins’ reasons there was no analysis of the best interests of the child, nor was there any consideration of any of the factors listed in s.37(3). In my view, the failure to consider and/or articulate reasons with respect to the best interests of A. supports a decision to allow the appeal.
[ 29 ] Still further, I accept the suggestion that the order of September 22, 2011 is ambiguous with respect to access.
[ 30 ] It may be that Justice Nevins was referring to recent amendments to the CFSA that set out a procedure for the adoption of a Crown ward in circumstances in which an access order existed.
[ 31 ] In any event, the overall impression of the access order on September 22 nd was confusing and ambiguous.
[ 32 ] Unfortunately, the statements made by Justice Nevins on September 23 rd did not clarify the matter.
[ 33 ] Moreover, it must be remembered that Justice Nevins’ decision was made as a result of a Summary Judgment motion.
[ 34 ] In addition, on September 23 rd , Justice Nevins said, “ It’s hanging there in the air and that, in itself, might be a triable issue whether there should be access and what amount of access ”.
[ 35 ] Lastly, the fact that neither B.1 nor B.1’s counsel were present on September 23 rd is troubling.
[ 36 ] In my view it is incumbent upon the court to ensure that all parties and/or their representatives have an adequate opportunity to be present and to make submissions prior to a decision being made, or in this case, prior to a decision being varied.
[ 37 ] The failure to ensure that B.1 and/or her counsel had an opportunity to make further submissions before the access order was varied is an error in law. That error also supports a decision to allow the appeal.
CONCLUSION
[ 38 ] I have found that the presiding judge made several errors of mixed fact and law. Those errors cumulatively amount to a palpable and overriding error. Thus, the appeal should be allowed.
[ 39 ] Moreover, I have found that there has been an error in law as the presiding judge failed to ensure that B.1 and/or her counsel had the opportunity to make submissions before the access order was varied on September 23, 2011.
[ 40 ] For all of these reasons, the appeal will be allowed. The order with respect to Crown wardship will remain in effect, but the order with respect to no access will be set aside. The access issue is to be tried at a hearing in the Ontario Court of Justice.
Henderson, J.
Released: April 27, 2012
2012 ONSC 2569
COURT FILE NO.: 3848/11
DATE: 2012/04/27
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: The Children’s Aid Society of the Niagara Region Applicant (Respondent on the Appeal) - and – M.B.1, S.W. and M.B.2 Respondents DECISION ON APPEAL Henderson, J.
Released: April 27, 2012