ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: FS-85-10
Date: 2012-02-06
B E T W E E N:
The Children’s Aid Society of the Regional Municipality of Waterloo
Applicant/Respondent on Appeal
- and -
S.S.
Respondent/Applicant on Appeal
Kim Putman, for the Applicant
Brigitte Gratl, for the Respondent
Heard: August 2, 2011
The Honourable Mr. Justice P.J Flynn
REASONS ON APPEAL
[1] On August 5, 2010, Madam Justice Nicklas released her reasons for making an order that J.J.W. (born […], 2008) be made a Crown ward without access for the purpose of adoption.
[2] The trial judge’s reasons consist of some 220 paragraphs in 48 pages and follow a trial which took 28 days of court time from November 24, 2009 until June 17, 2010.
[3] J.J.W. was apprehended at birth. The appellant, S.S., born […], 1990, is the child’s mother. The child’s father is C.W., born […], 1974.
[4] The child’s sibling, L.M.W. (born […], 2006), was apprehended on May 4, 2007 and made a Crown ward without access on December 2, 2008, after being found in need of protection. That decision was upheld on appeal and L.M.W. was subsequently adopted by the same family with whom J.J.W. resides.
[5] The parties in this case had agreed by way of agreed statement of fact that J.J.W. is a child in need of protection pursuant to section 37(2) (b)(i) of the Child and Family Services Act, R.S.O. 1990, Chapter C-11 as amended.
[6] The child’s father, Mr. C.W., is not an appellant in this matter. In this appeal, the appellant cites or complains of several errors by the trial judge including approximately five errors of law and fact, three errors of fact and eight errors of law, and she argues that the errors of law and fact or fact are palpable and overriding.
[7] Significantly, she complains that the trial judge erred in law and fact by failing to properly weigh the Society’s plan against the mother’s plan of care for the child, and complained that the trial judge relied on case law whose factual situations were of an entirely different nature and placed no weight on most alarming evidence that was placed before her in relation to the prospective adoptive home. Ms. Gratl argues that during visits by their mother the children did not suffer. And she complains that the trial judge drew the wrong inferences. The appellant says it is significant that the trial judge placed significant weight on the report of Doctor Benoit even though she proclaimed that Doctor Benoit’s evidence was of little weight as a result of the age of the parental capacity assessment. The errors that Ms. Gratl cited, she says, were palpable, overriding and warrant appellate intervention. Ms. Gratl also argues that the evidence at trial supported the conclusion that Ms. S.S. was able to meet the child’s mental and emotional needs and give the child appropriate care. Ms. Gratl argues that many of the inferences and the comparisons that the trial judge made were factually and legally wrong. Ms. Gratl cites several other instances of what she calls overriding and palpable errors even contrary to the trial judge’s own findings and that they made no sense.
[8] For example, Ms. Gratl made much of the fact that the trial judge found Ms. S.S. uncooperative with the Children’s Aid Society and put that down to the Children’s Aid Society not accepting Ms. S.S.’s type of cooperation. Ms. Gratl made argument of a significant error by the trial judge by blurring and confusing the position of both the parents, even after finding that the parents were separated. And Ms. Gratl complains that the trial judge must have forgotten the evidence, because it does not jive and she drew the wrong inferences. Even though the relationship between Ms. S.S. and Mr. C.W. was over, Ms. Gratl argues that the trial judge confused “their case” with Ms. S.S.’s case.
[9] In the end, Ms. Gratl argued that there be a supervision order instead of a no access order.
[10] The child is three and a half years old and has been in the care of the same foster family since birth, a foster family which is prepared to adopt the child.
[11] The Society first became involved with Ms. S.S. following a report from the police that Ms. S.S. physically assaulted her young sister, then aged 12, on May 4, 2007. Apparently Ms. S.S. found her young sister and Mr. C.W. engaged in sexual intercourse and hit her sister with a telephone. The assault was reported to the police. Ms. S.S. also assaulted Mr. C.W.. At the time Ms. S.S., Mr. C.W. and their child, L.M.W., lived in the home of Ms. S.S.’s mother. It was at this time that L.M.W. was apprehended by the Society
[12] Mr. C.W. was charged with sexual assault and sexual interference but those charges were eventually dismissed because the criminal court could not be satisfied beyond a reasonable doubt that Mr. C.W. knowingly engaged in the activity. Both Ms. S.S. and her sister had testified that Mr. C.W. was asleep at the time of the incident.
[13] On that same date L.M.W. was apprehended by the Society. Mr. C.W. alluded police until March 18, 2008 when Ms. S.S. turned him into the police during the Crown wardship trial for L.M.W.. During the time that he was at large Ms. S.S. and Mr. C.W. maintained contact despite Ms. S.S.’s claims to the contrary to the Society, the police and others. On one occasion when stopped by the police with Mr. C.W., Ms. S.S. even gave a false name to the police.
[14] On June 6, 2007, on consent, Hardman J. ordered a parenting capacity assessment, which was completed on September 19, 2007 by Doctor Diane Benoit. That assessment found Ms. S.S. could not parent L.M.W..
[15] From June 6 to September 10, 2007, Ms. S.S. resided at a home for new mothers until she was suspended. Then from October 2007 to February 2008 she resided in a hostel and with friends. She was then readmitted to the home for new mothers due to her pregnancy with J.J.W. from February 2008 to October 2008 when she was evicted. Then she lived with Mr. C.W.’ sister until January 2009 when she moved to an apartment in Kitchener.
[16] The Society was unaware of her whereabouts. Ms. S.S. left that apartment at the end of October 2009 and resided with friends and then Mr. C.W.’ sister until she returned to the same building on Chandler Drive. Again the Society was not aware of her location until after the fact (January 2010).
[17] Ms. S.S. did not complete the mental health assessment required by the Society and Ms. C.W. did not complete the phallometric testing.
[18] Nor did Ms. S.S. sign consents to allow the Society to speak to service providers after June 26, 2009. She had rescinded all previously signed consents.
[19] An appeal of this sort is not meant to be an opportunity for one of the parties to relitigate the matter or to reframe the issues. The trial judge heard the evidence and saw the witnesses over a period of 28 days. The Ontario Court of Justice is akin to a specialized tribunal and much deference ought to be given to the judge hearing the trial given that that court has exclusive jurisdiction over protection proceedings under the Child and Family Services Act.
[20] As an appellate court, I have a narrow scope of review because of the fact based and discretionary nature of the decisions made.
[21] Those decisions of the trial judge should not be interfered with lightly by an appellate court. The trial judge is in the best position to decide the best interests of the child and that must remain the sterling guidepost.
[22] The standard for review of findings of fact or mixed fact and law at an appeal level must be one of palpable and overriding error. Even if I were to find errors of fact in the reasons of Justice Nicklas, I would be hard-pressed to find a palpable and overriding error. Justice Nicklas was in the most advantageous position to assess and weigh the evidence that she did.
[23] It is not the role of an appellate court to second guess the weight to be assigned to the various items of evidence.
[24] “Moreover, although the trial judge will always be in a distinctly privileged position when it comes to assessing the credibility of witnesses, this is not the only area where the trial judge has an advantage over appellate judges. Advantages enjoyed by the trial judge with respect to the drawing of factual inferences include the trial judge’s relative expertise with respect to the weighing and assessing of evidence, and the trial judge’s inimitable familiarity with the often vast quantities of evidence. This extensive exposure to the entire factual nexus of the case will be of invaluable assistance when it comes to drawing factual conclusions. In addition, concerns with respect to the cost, number and length of appeals apply equally to inferences of fact and findings of fact and support a deferential approach towards both. … It is our view that the trial judge enjoys numerous advantages over appellate judges which bear on all conclusions of fact, and, even in the absence of these advantages, there are other compelling policy reasons supporting a deferential approach to inferences of fact. We conclude, therefore, by emphasizing that there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge – that of palpable and overriding error.” (Housen v. Nikolaisen (2002) 2002 SCC 1 (), S.C.J. No. 3 paras. 22 – 25).
[25] Here the trial judge has crafted an extensive, careful, detailed and coherent set of reasons. It is simply wrong to focus on snippets of evidence such as the appellant has done in her factum and argument. The argument by the way conducted by the appellant’s counsel was merely a recitation, almost a reading of the factum.
[26] In reviewing the reasons of the trial judge and the transcript segments referred to by the parties, I am unable to conclude that there is any palpable and overriding error which would require appellate intervention.
[27] The trial judge heard the evidence and saw the witnesses and weighed and assessed that evidence, and of course, drew certain inferences and conclusions, including the fact that the appellant was not cooperative with the Society, that she had moved without giving the Society notice of her whereabouts, that at a certain point in time she withdrew her consent and did not do the mental health assessment that was requested of her.
[28] The trial judge made clear that she gave no weight to the evidence of Doctor Benoit in relation to her assessment of the parenting capacity of Ms. S.S. to J.J.W., given the age of the assessment. She did, however, set out what she felt was valuable from Doctor Benoit’s evidence at paragraph 76 of her reasons. In my view, the trial judge did not misapprehend the evidence. She weighed it, assessed it and rendered an opinion.
[29] Ms. S.S. conceded that there ought to be a finding of risk of harm. The trial judge’s role was to determine whether that risk could be mitigated.
[30] In this case there is no issue as to the adoptability of this child.
[31] The child should not be forced to wait until all the parental issues are resolved. Ms. S.S. (and Mr. C.W. for that matter) did not react well with the Society and was not interested in the child’s best interest.
[32] Ms. S.S.’s own counsellor felt that there was an anger issue, as did Ms. S.S. herself. What the judge was faced with was not just an issue of access but the totality of the circumstances including the stability of Ms. S.S.’s lifestyle at the time of the trial.
[33] There is clear evidence of a number of residential moves throughout Ms. S.S.’s involvement with the Society but the Society was not made aware of many of them. Of course, this evidence must be addressed in the context of the non-cooperation with the Society and whether a supervision order is appropriate. It is very difficult for the Society to measure compliance with some of its requests, suggestions or orders and progress if there is no contact with the parent.
[34] The onus to rebut the presumption against access to a Crown ward is on the appellant. And I must conclude that the appellant has not discharged that onus. In doing so, I am upholding the conclusion of the trial judge who was also not satisfied that access would be beneficial and meaningful.
[35] I am satisfied that the order made by the trial judge is the proper one and the appeal must be dismissed.
COSTS
[36] If the Society is seeking costs it shall deliver its submissions on costs including a costs outline and bill of costs along with any relevant offer(s) to settle by serving same on the respondent and delivering it to my chambers in Kitchener by February 29, 2012; and the respondent shall by March 16, 2012 deliver her costs outline and reply submissions together with any relevant offer(s) to settle.
P.J. Flynn J.
Released: February 6, 2012
Court File No.: FS-85-10
Date: 2012-02-06
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Children’s Aid Society of the Regional Municipality of Waterloo
Applicant/Respondent on Appeal
- and -
S.S.
Respondent/Applicant on Appeal
REASONS ON APPEAL
P.J. Flynn J.
Released: February 6, 2012