ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-17393
DATE: 20120822
BETWEEN:
Children’s Aid Society of Toronto Applicant (in the Ontario Court of Justice) Respondent in the Appeal – and – E.S. Respondent (in the Ontario Court of Justice) Appellant
Danielle Szandtner, for the Respondent in the Appeal
Ian Richard Mang, for the Appellant
HEARD: June 26, 2012
Kiteley J.
REASONS FOR DECISION
[1] The children who are the subject of this appeal are C.B. born […], 2009 and M.S. born […], 2010. Both were apprehended at birth. The trial before Justice C. Curtis began on January 31, 2011. After 9 days there was an interruption to investigate a kin care proposed plan advanced by G.B. and R.B.. The evidence resumed in April, 2011. The written reasons for decision were released on April 20, 2011 [1]. Justice Curtis found that the children were in need of protection and she made an order for crown wardship without access in order that they would be available for adoption.
[2] On May 19, 2011, Ms. E.S. filed a notice of appeal in which she asked that the order be set aside and that the children, or either of them be placed in her care, or in the alternative, that she be granted access or in the further alternative, that a new trial be ordered. On May 22, 2012, after Mr. Mang had been retained for the appeal, he caused an amended notice of appeal to be filed in which Ms. E.S. sought an order placing the children with G.B. and R.B. subject to supervision by the CAST, pursuant to the provisions of s. 57(1) of the CFSA; or alternatively, an order placing the children with Mr. G.B. and Mr. R.B. pursuant to a custody order under s. 57.1 of the CFSA. In the further alternative, Ms. E.S. sought an order for a new trial.
Reasons for Decision of the Trial Judge
[3] Curtis J. provided 43 pages of reasons. At page 18, she concluded in paragraph 46 that there was ample evidence that C.B. and M.S. were in need of protection under s. 37(2)(b)(i) and (ii) of the CFSA due to risk of physical harm from a failure to care for the children, and a pattern of neglect in caring for the children. She held that the evidence that the children were in need of protection was overwhelming, and easily supported such a finding.
[4] Over the ensuing 25 pages, Curtis J. considered the options available at trial, reviewed the plans put forward by the mother, Mr. G.B. and the CAST. She cited the appropriate legal principles. In analyzing the options, Curtis J. noted the mother’s lack of judgment regarding her relationship with the father, her lack of insight regarding her parenting and mother’s visits with C.B. and M.S. that had taken place under CAST supervision since the children had each been apprehended.
Fresh Evidence
[5] Ms. E.S. has three other children: G. born […], 2004; M.B.1 born […], 2005 and M.B.2 born […], 2007. G. was apprehended when he was a few weeks old and was found to be in need of protection on consent. He was placed in the permanent custody of family friends G.B. and A.B. when he was about five weeks old. A.B. is G.B.’s mother. In 2005, they obtained a custody order. Since 2009, G.B. has been living with R.B..
[6] M.B.1 and M.B.2 were apprehended at birth. Justice G. Waldman heard a 17 day trial from November 2006 to April 2008 in which she found M.B.1 in need of protection, and on consent, she found M.B.2 in need of protection. Before the trial was completed, on consent, M.B.1 and M.B.2 were placed in the care of the paternal aunt D.B. under a supervision order and he remained there subsequently, subject to a status review that had been launched at the time of the trial before Curtis J.
[7] At the outset of the trial that began in January 2011, Ms. E.S. took the position that the children should be returned to her care. On February 10, 2011, Mr. G.B. was called as a witness by counsel for Ms. E.S.. He and Mr. R.B. had met C.B. and M.S. about two weeks earlier. He made a proposal primarily to care for M.S. but he said he would consider a role in caring for C.B. if it were offered. He was prepared to commit himself to the children for a lifetime. He agreed to participate in an assessment of his proposal by the CAST.
[8] The Trial Judge interrupted the trial to allow that assessment to take place. On April 5, 2011, Curtis J. heard evidence from Sherlene Fernando, the kinship worker who was called by CAST in reply. Ms. Fernando described the considerable effort that Mr. G.B. and Mr. R.B. had made to participate in the assessment process and fulfill all the requirements. She was optimistic that the placement would be approved.
[9] It appears that the assessment was completed after release of the judgment on April 20, 2011. On June 3, 2011, C.B. and M.S. were placed with Mr. G.B. and Mr. R.B. as a kin care foster home with a view to adoption. Mr. Mang indicated that he would bring a motion seeking leave to file fresh evidence to inform the court what had occurred in that placement.
[10] Counsel for CAST agreed that Mr. Mang could file affidavits that contained evidence about what had occurred from June 3rd to the date of the affidavits. Mr. G.B. and his mother provided affidavits dated May 15th, 2012. Mr. G.B.’s father filed an affidavit agreeing with the contents of the affidavit of A.B.. Mr. R.B. filed an affidavit agreeing with the contents of the affidavit of Mr. G.B.. Ms. E.S. filed an affidavit sworn May 22, 2012 in which she indicated that she had read all of those affidavits and that she supported the plan for placement of C.B. and M.S. with Mr. G.B. and Mr. R.B. and she expressed confidence in their abilities to raise C.B. and M.S. in the same way they had raised G.. In response, counsel for Ms. E.S. agreed that the CAST could file an affidavit of Tracy Belmonte sworn May 24, 2012. On consent all of that evidence was received in the appeal.
[11] In June when the children were placed with Mr. G.B. and Mr. R.B. as a foster home, they were living in Toronto. In July, Mr. G.B.’s mother and father bought a property in Acton, Ontario. The parents moved into the self contained basement apartment. Mr. G.B. and Mr. R.B. slowly moved into the main floor and second floor of the home. Mr. G.B.’s older brother moved into a detached house behind the main building.
[12] Because of the change in residence, on September 7, 2011, CAST foster care/kin care resource worker Jacqueline Davis visited the home and she raised a variety of safety issues. Tracy Belmonte is a child and youth worked with CAST. She followed up on the issues that had been raised and on other details or documents which the CAST required. On November 28, 2011, C.B. and M.S. were removed from the foster home of Mr. G.B. and Mr. R.B. against their wishes. The removal was a few days short of 6 months. On November 28, 2011, the children were placed in a new foster home with parents who are not seeking to adopt.
[13] The fresh evidence indicates that between June 3, 2011 and September, 2011, both children were doing well. The placement had been beneficial to both of them and to G.. However, beginning with the home visit on September 7th, the relationship between Mr. G.B. and CAST became highly conflicted. In her affidavit, Ms. Belmonte described the deterioration in the relationship primarily between Mr. G.B. and Ms. Belmonte. Between September 7th and November 28th, CAST did not identify any specific protection concerns about the day to day care of the children. However, Ms. Belmonte identified grave concerns about Mr. G.B.’s reliability and truthfulness. On October 5th, Ms. Belmonte spoke with Mr. G.B. and Mr. R.B. and after raising several issues, informed Mr. G.B. that due to continued conflicting stories, poor communication and fabrications that had arisen on September 29th, she was requesting consent to get updated medical information from Mr. G.B.’s doctor. That was not forthcoming. On November 24th, Ms. Belmonte attended a meeting with the CAST kinship supervisor, CAST supervisor, children’s service worker, two foster parent support workers and Mr. R.B. and Mr. G.B.. After reviewing the concerns and issues with respect to the foster home, Mr. R.B. and Mr. G.B. were advised that the foster home would be closed and the children would be removed.
[14] Counsel agreed that the appellate court has a very wide discretion to consider such evidence to provide accurate and up to date information on the children in order that a decision consistent with their best interests can be made. [2]
Standard of Review
[15] On a pure question of law, the standard of review is correctness. The appellate court may replace the opinion of the trial judge with the correct legal conclusion. Appellate courts are required to defer to findings of fact and factual inferences at trial unless persuaded by the appellant on a balance of probabilities that the trial judge made a palpable and overriding error. [3]
Analysis
[16] There are two issues before me: whether Curtis J. made an error in finding as a fact that there was a risk of future litigation and whether Curtis J. made an error in law by failing to follow the statutory pathway to disposition by referring to the risk of future litigation and in not making a supervision order or a custody order.
[17] At paragraph 48, Curtis J. identified the six available options: crown wardship no access for purposes of adoption; crown wardship with access to the mother and the father; an order placing both children in the care of the mother, with or without CAST supervision, with or without access to the father; an order for society wardship of M.S. only (because that option was no longer available for C.B.); an order placing both children with Mr. G.B. pursuant to s. 57.1 with or without access to the mother and the father; and an order placing both children with Mr. G.B., with or without CAST supervision, with or without access to the mother and the father. She then analyzed those options.
[18] Mr. Mang focused his submissions on paragraphs 93 to 106. In paragraph 93, the trial judge rejected the mother as a suitable candidate for a supervision order. She then held as follows:
C.B. and M.S. are entitled to certainty, finality and to grow up in a safe and stable family, where they are valued and protected from harm. They will not have this if they are returned to the mother.
The challenge for the court in this case is choosing the proper disposition option for the children that does not involve a return to the mother’s care.
The central issue regarding disposition is the tension between the desire for certainty and finality for the children (which would lean towards crown wardship, no access and adoption), and the desire to see the children placed with a known suitable care-giver, placed with a sibling, placed where there will be access to the other two siblings, and where the court has the ability to control the placement (all of which would happen if the children were placed with G.B. under either a supervision order or a s. 57.1 CFSA order). As well, the court is required to consider such a plan, from a family or community member, under s. 57(4) CFSA.
Should the children become crown wards without access for the purposes of adoption, the court is not involved in the adoption placement of the children. They could be placed with G.B., if he completes the adoption placement assessment process successfully. He and his partner have co-operated fully and impressively, and in every way, with this process, during the break in the trial. It is likely they will be approved for adoption placement.
However, CAST has the legal right to decide where crown wards without access are placed for adoption. The court is not involved in this decision. The parents are not involved in this decision. CAST has the legal authority to choose another family for the adoption placement, even if G.B. and his partner successfully complete the adoption placement assessment currently underway. CAST has the discretion to choose the family they want to choose in the children’s best interests. And although CAST indicated at the trial that G.B. was a likely candidate and was currently their first choice for the adoption placement, CAST in no way undertook to the court to place the children for adoption with G.B., nor does CAST have the right or authority to do so.
Should the court choose crown wardship without access, the court gives up any ability to control or even influence the adoption placement of the children.
It is significant that this mother had 17 days of trial regarding M.B.1 and M.B.2 in 2006-2008, which ended with no decision by the court, and with a consent family placement. That is eerily, unfortunately and uncomfortably similar to what has happened in the case of C.B. and M.S.. This trial has been 14 days, and in the middle of the trial, a plan for a placement of both children with a suitable family friend has been put forward.
Three years later, after the 17 day trial, the CFSA case re M.B.1 and M.B.2 is still unresolved. This case is still in court with the children placed with the paternal aunt under a supervision order. Although the paternal aunt says she will start a CLRA case for custody in 2011, three years after the trial, there is still no finality for M.B.1 and M.B.2. They are still in litigation. There is still a status review case before the court. There is still uncertainty in their placement. There is still no permanent placement.
It is clear that if C.B. and M.S. were placed with G.B. under a supervision order or a s. 57.1 CFSA order, there is a risk that exactly this would happen again, that there would be no certainty or finality for some time, and possibly no certainty or finality at all. The status review process which results from a supervision order means that the mother has an open door to return to court to seek the return of the children, much as she would have if there were an order for custody of C.B. and M.S. to G.B. under s. 57.1 CFSA, through a motion to change under the CLRA. That option is not available to the mother if the children become crown wards without access for the purposes of adoption. Crown wardship has the added advantage of certainty and finality, which the other options do not offer.
It is not in the best interests of C.B. and M.S. to delay their permanent placement any longer. C.B. is long past the statutory time permitted for staying in foster care.
It is not in the children’s best interests for the court to choose a disposition that will continue the litigation, leave the door open to the mother claiming a future return of the children, or risk that there might have to be another trial to determine the proper future disposition. The proper disposition for these children now is clear. The mother is not capable of caring for these children and they should not be returned to her care.
It is tempting, very tempting, to choose a placement with G.B., subject to a supervision order or a s. 57.1 CFSA order. If this plan had come forward at a different time in the life of this case and the lives of these two children, it may have been the plan of choice. However, neither of those options offers certainty and finality. Both options offer the near certainty of future litigation and the risk of instability and uncertainty for the children for some period of time.
It is not in the children’s best interest, in these circumstances, for the court to choose a disposition that is in any way uncertain or not final. The only option that meets these criteria is crown wardship.
A. Error in Finding of Fact
[19] Mr. Mang argued that Curtis J. erred in the finding of fact reflected in paragraph 102 that “there is a risk that exactly this would happen again, that there would be no certainty or finality for some time, and possibly no certainty or finality at all”. He took the position that there was no evidence to support that finding of fact and that the evidence supported the inference that Ms. E.S. had no intention of challenging the care by Mr. G.B. and Mr. R.B..
[20] I agree with Ms. Szandtner that that finding of fact was well-founded. In her Answer and Plan of Care dated April 29, 2009 and dated July 7, 2010, Ms. E.S. sought the return of C.B. to her care and custody. In her Answer and Plan of Care dated December 19, 2010, she sought the return of M.S. to her care and custody. At paragraph 49, Curtis J. found as a fact that Ms. E.S.’s plan for the return of the children identified her as the sole caregiver of C.B. and M.S.. At paragraph 54, Curtis J. found as a fact that, although Mr. G.B. was called as a witness on her behalf, Ms. E.S. did not support the placement with Mr. G.B. because she wanted the children returned to her care. The trial started in early January. Until February 10, 2011 when Mr. G.B. gave evidence, there was no alternative plan proposed on behalf of Ms. E.S.. At the time he gave his evidence, there was no pre-existing relationship between Mr. G.B. and the children. He and Mr. R.B. had met the children once in the weeks between the beginning of the trial and his evidence. In her cross-examination on February 10th, Ms. E.S. said with respect to G., M.B.2 and M.B.1 that she had no plans to seek to have them placed in her care “right now”. It was a logical inference to draw that after 7 years of litigation seeking the return of four of her children, along with her continuing lack of acknowledgement of her deficits and her lack of positive support for the plan advanced by Mr. G.B. that she would continue to pursue the return of C.B. and M.S. to her care.
[21] I am not persuaded that Curtis J. erred in drawing the inference of fact in paragraph 102. Not only was that finding of fact supported by the evidence at trial, subsequent events reinforced it. In her notice of appeal dated May 19th, 2011, Ms. E.S. continued to seek the return of the children. That position changed only with her amended notice of appeal on May 22, 2012 – which was more than three years after C.B. had been apprehended and more than 18 months after M.S. had been apprehended. I agree with counsel for CAST that the events subsequent to the trial support the conclusion reached by Curtis J.
B. Error in law
[22] In making his submissions as to the error of law, Mr. Mang focused on paragraph 105. He took the position that Curtis J. had applied the wrong test in that she had approached the disposition stage as if it were a status review application rather than an initial disposition at trial. He argued that she erred in law in her interpretation of sections 57 and 57.1 of the CFSA and that she erred in failing to give sufficient weight to the family plan which he argued was a certainty. He argued that it is in this context that the fresh evidence is relevant because it demonstrated that a principled evaluation of that evidence along with the trial evidence inevitably leads to the conclusion that the trial judge should have made an order less intrusive than crown wardship no access, and that she erred in her reasons for by-passing those sections of the CFSA which permitted her to do so. He argued that the failure to properly follow the statutory pathway set out in the CFSA constitutes reversible error.
[23] I do not agree with Mr. Mang’s submission that the fresh evidence demonstrated that Curtis J. erred by not placing the children in the care of Mr. G.B. and Mr. R.B.. The fresh evidence demonstrates that for the duration of the time the children were with them (June 3rd to November 28th) there were no protection concerns in the sense that the day to day needs of the children apparently were met. Mr. G.B. and Ms. Belmonte agree there was significant conflict from and after September 7th. On affidavit evidence I am not prepared to make findings of fact as to the causes of the conflict. From my perspective, the fresh evidence of the placement demonstrates that CAST explored what appeared to be a positive option but subsequently concluded the placement would not work. The fresh evidence does not demonstrate that the trial judge should have ordered supervision or custody and erred in failing to do so.
[24] Curtis J. clearly considered the “statutory pathway” in s. 57 as well as the criteria in determining the best interests of the child in s. 37. Having heard from Mr. G.B. on February 10th that he wanted to pursue a plan to care for both children, Curtis J. interrupted the trial to afford an opportunity for an evaluation of that plan to be undertaken and she heard reply evidence as to the merits of the plan. She was complimentary to Mr. G.B. and Mr. R.B. for rising to the many demands of CAST in order that their plan might be considered. As indicated in paragraph 105, she was “very tempted” to choose that placement. She clearly considered that as a viable option. For reasons expressed by her, she concluded that neither supervision nor custody were appropriate. She was cognizant that she had to decide amongst the available options. She was well aware that it would not be in the best interests of the children to choose a disposition that was in any way uncertain or not final and, for the reasons she gave, the only option was crown wardship. Reading the entirety of her reasons for decision, as opposed to isolating a single paragraph, I am not persuaded that Curtis J. made an error of law.
ORDER TO GO:
[25] The appeal is dismissed without costs.
Kiteley J.
Released: August 22, 2012
COURT FILE NO.: FS-11-17393
DATE: 20120822
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto Applicant (in the Ontario Court of Justice) Respondent in the Appeal – and – E.S. Respondent (in the Ontario Court of Justice) Appellant
REASONS FOR JUDGMENT
KITELEY J.
Released: August 22, 2012
[1] Children’s Aid Society of Toronto v. E.S. 2011 ONCJ 688
[2] Catholic Children’s Aid Society of Toronto v. C.M. 1994 , [1994] 2 S.C.R. 165 paragraphs 18-23 ; CAS of Peel v. M.J.W. and W.W. 1995 CarswellOnt 431, at paragraphs 60 - 65
[3] Housen v. Nikolaisen [2002] S.C.C. No. 235 (S.C.C.)