SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-49-12

DATE: 2013-04-04

RE: The Children’s Aid Society of the Regional Municipality of Waterloo

AND:

A.M.

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
John Morscher - Counsel for the Respondent on Appeal/Applicant, Children’s Aid Society of the Regional Municipality of Waterloo

Brigitte Gratl - Counsel, for the Appellant in Appeal/Respondent, A.M.

HEARD: March 25, 2013

ENDORSEMENT

Nature of the Proceeding and Grounds of Appeal

[1] The appellant A.M., the biological mother of the child C.G.,born […], 2009, appeals from the disposition Order of the Honourable Justice McSorley of the Ontario Court of Justice dated May 30, 2012 (the “Order”). The appeal is brought pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”). The Respondent (the “Society”) administers the CFSA in the Region of Waterloo.

[2] Justice McSorley, following a nine-day trial conducted over the period from July 8 to October 25, 2011, ordered that the child C.G. be made a Crown ward, without access. The child was apprehended shortly after his birth on […], 2009 and was placed in the interim care of the Society. The Society brought a motion for summary judgment and on June 22, 2011 the Honourable Justice Frazer found that there was no genuine issue of trial on the protection issue and made an order finding the child to be in need of protection pursuant to sections 37(2)(b-i) and (b-ii) of the CFSA. The issue of disposition was left to trial.

[3] The Appellant appealed the protection Order of Justice Frazer and the hearing of that appeal was stayed pending the rendering of the disposition ruling by Justice McSorley. The Appellant abandoned her appeal of the protection Order at the commencement of the argument of this appeal and her counsel undertook to file a Notice of Abandonment with respect to that appeal. Accordingly, the argument proceeded only with respect to the Appellant’s appeal of Justice McSorley’s disposition Order.

[4] The Appellant seeks to set aside the Order of Justice McSorley and requests an order that the child be placed in her care under the supervision of the Society, subject to conditions that she abstain from the use of illegal drugs or alcohol, that she submit to drug testing as required by the society, that she advise the Society in advance of any change in her residence and that she not move to any residence not approved by the Society.

[5] The Appellant’s grounds of appeal may be grouped as follows:

(a) The trial judge erred in law in proceeding with the disposition trial while the finding that the child was in need of protection was under appeal;

(b) The trial judge erred in law in permitting seven months to elapse between the trial and the rendering of judgment; and

(c) The trial judge made errors in carrying out her assessment of the child’s best interests, including:

(i) in assessing the Appellant’s credibility she relied upon erroneous and misconstrued facts;

(ii) in her assessment of the child’s physical, mental and emotional needs and the Appellant’s ability to meet his emotional needs;

(iii) in failing to address the fact that the proposed adoptive parents are both female and the possibility that the child may, in the long-term, suffer a stigma and be subjected to discrimination from that fact;

(iv) in speculating that the child would suffer emotionally if removed from the care of his foster parents and placed with the Appellant;

(v) in finding that there was no evidence led regarding the child’s views;

(vi) in failing to address the issue of delay;

(vii) in failing to address the question of risk of harm to the child associated with the removal, keeping away from or returning the child to the Appellant;

(viii) in failing to find that the relationship with his mother remains meaningful and beneficial to the child, as being implicit in her finding that the relationship is not “particularly” meaningful and beneficial, and in so doing, failing to recognize the existence of an emotional bond between the child and the Appellant.

Applicable Principles

[6] As observed by the Court of Appeal in the recent case of Children’s Aid Society of Toronto v. L. (P.) 2012 ONCA 890 (CA) at para. 14, on matters of this nature there are two principles which dominate the analysis – firstly, the paramount consideration of the best interests of the child and secondly, the standard of review. As Justice Epstein put it at para 15-16:

First, the court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings. Second, the degree of deference owed to the trial judge is particularly high in child protection proceedings. In C. (G.C.) v. New Brunswick (Minister of Health & Community Services), 1988 34 (SCC), [1988] 1 S.C.R. 1073 (S.C.C.), at para. 5, the Supreme Court described the standard of review applicable in such cases as "...trial judges' decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment.

[7] More recently, Justice Aston, in the Divisional Court, in the case of M.F. v. Family and Children’s Services of Lanark, Leeds and Grenville, 2013 ONSC 702 (Div. Ct.), at para. 8, reaffirmed the higher standard of review applicable in child protection proceedings, citing the Court of Appeal decision in Children’s Aid Society of Toronto v. K.K., (2006) 2006 2755 (ON CA), 22 R.F.L. (6th) 342 (CA) for the proposition that an appeal court “can interfere with the trial judge’s conclusion only if he or she made an error in principle, misapprehended the evidence or arrived at a clearly unreasonable result.”

[8] The parties are in agreement with respect to the general standard of review from a trial judge’s decision set out in Housen v. Nikolaisen, 2002 SCC 33, summarized by Justice Aston in M.F. v. Family and Children’s Services of Lanark, Leeds and Grenville as follows:

On a pure question of law the basic rule is that the trial judge must be correct and an appellate court is free to replace the opinion of the trial judge with its own. The standard of review for findings of fact is that such findings, including those that are based on inference, are not reversible unless it can be established that the trial judge made a "palpable and overriding error". Matters of mixed fact and law lie along a spectrum, but unless a legal principle is readily extricable, the trial judge's findings are approached with deference.

Background

[9] The child C.G. is the second child born to the Appellant and the father T.G. (who was initially a Respondent in the protection proceedings, but did not put forward his own plan of care, nor participate in the trial or this appeal). The Appellant was born […], 1989 and was therefore 20 years of age at the time of C.G.’s birth. The first child, K.G., was born […], 2006.

[10] The first child K.G. was apprehended from the care of his parents due to issues, as stated by the Society, of medical neglect and lack of parenting skills. K.G. was subject to two consecutive Supervision Orders placing him in the care of his maternal grandparents. The parents failed to address continuing child protection concerns, and ultimately, the grandparents applied for and obtained an order for custody of K.G. The supervision order was terminated on September 30, 2008 and the Society ended its involvement with the family regarding K.G.

[11] The Society became involved again in 2009 when it learned that the Appellant was pregnant with T.G.’s child. The Society had concerns respecting the parents’ substance abuse, the state of their home, and lack of follow up with medical professionals. In July 2009, just prior to the birth of the child, the parents moved into a home with the paternal grandmother S.G.

[12] Just prior to C.G.’s birth, the parents signed a handwritten note giving care and control of their child to paternal grandmother S.G. The parents and S.G. spoke to an after-hours worker of the Society about this plan and on August 6, 2009 the intake worker attended at the hospital and spoke with the parties. There were discussions respecting whether the parents should reside in the home with the child. The child was discharged that day and taken to S.G.’s home and a home safety check was completed by the Society worker.

[13] Over the next several days the Society became concerned due to the parents having never addressed past parenting issues. Although the parents had purported to sign over custody to S.G., the parents were still living in the home and were parenting the child. As a result the child was apprehended on August 12, 2009. The child C.G. was placed into his current foster home and he has remained there to date.

[14] A parental capacity assessment was completed by Dr. K. McDermott, Clinical Psychologist, in July 2010.

[15] Dr. McDermott set out in her report the sources of information which went into its preparation, including two individual interviews with the Appellant, two individual interviews with the father T.G., one observation of both parents in interactions with the child at the access facilities of the Society, and one observation of the Appellant with the child at those facilities, interview and telephone contacts with the Appellant’s parents, interview with one of the foster parents of the child, telephone interview with a supervisor at the counselling service which had provided couples counselling to the parents, telephone interviews with the Society case worker and review of the Society’s files. Five self-report psychological inventories were undertaken with the Appellant, with all inventories and tests administered and invigilated by Dr. McDermott.

[16] The assessment described the Appellant as presenting as a woman of average intelligence, but with an affect that is quite blunted. Dr. McDermott observed that she presents as insecure and susceptible to individuals who she perceives as benevolent towards her and tends to avoid anyone who might challenge her judgment and decisions. In short she was described as “fiercely dependent” but lacks good essential judgment as to whom to depend upon.

[17] Dr. McDermott observed that the Appellant’s parenting skills are marginal and require direct support. Although she was found to have the cognitive ability to learn and retain new skills, whether she has the motivation and energy to carry out these skills was stated to be doubtful. It was observed that she is not able to function independently and clings to the father T.G.’s family; a family which is characterized by chaotic decision-making and a lack of boundaries. Due to their own needs, this family would be unable to provide the Appellant with guidance and support as she “individuates” to live independently while meeting the needs of the child. The Appellant did not appear to be able to embrace a relationship with her own family. Concern was expressed on whether the Appellant’s “deep dependency needs” may cause her to fixate on another inappropriate individual.

[18] Based upon her findings, Dr. McDermott recommended that C.G. be made a Crown ward without access in order to facilitate his permanency planning.

[19] The Appellant was not satisfied with the conclusions expressed in Dr. McDermott’s report and arranged for a second psychological assessment of her to be conducted by Dr. Samantha Waxman, supervised by Dr. Stephen Swallow. As noted by Justice McSorley, a psychological assessment deals with a parent’s mental status, while a parenting capacity assessment has embedded in it the parent’s ability to respond to and parent a child.

[20] The report of Dr. Waxman (supervised by Dr. Swallow) reported that two primary sources of information were utilized, being a clinical interview and questionnaire data. The report concluded that, although the Appellant has faced a number of obstacles and challenges, her support network was limited and she had exhibited poor judgment, planning and problem solving skills in a number of situations, she appeared very motivated to committing herself to making changes. However, the report flags a concern related to the possibility of psychological deterioration in the context of a future dysfunctional relationship. It was noted that any relationship with T.G. would place her at high risk and any ongoing contact with him should raise concerns regarding her ability to parent adequately. Dr. Waxman noted that she was not in a position to determine the quality of the relationship between the Appellant and the child C.G., nor her ability to act as the sole parent of the child. The report concluded by stating that the Appellant would benefit from additional counselling sessions to address the issues identified in the report, including dysfunctional romantic relationships, interpersonal difficulties and concerns respecting problem-solving and poor judgment.

Analysis

(a) Issue 1 - Did the Trial Judge err in continuing with the trial on disposition while the protection finding was under appeal?

[21] The Appellant maintained this ground of appeal in argument notwithstanding that she abandoned the appeal of the protection order at the commencement of the argument of this appeal. I would not give effect to this ground. The abandonment of the appeal on the protection issue rendered this issue moot. In any event, it is noted that the Appellant did not move to stay the protection order of Justice Frazer, nor was a formal motion or request made for an adjournment of the trial before Justice McSorley pending the appeal of the protection order.

(b) Issue 2 - Did the Trial Judge err in law by taking seven months to render judgment?

[22] In the case of Dusk v. Malone (2003) 2003 57384 (ON CA), 167 O.A.C. 333 (CA) the Court of Appeal held that “a lengthy delay in trial and in releasing reasons, without more, will not automatically amount to a denial of a fair trial. The fairness of a trial must be determined by the particular circumstances of each case so that generally some evidence of active prejudice must be shown.”

[23] The Appellant argues that the law requires a timely judgment in child protection proceedings, as any delay furthers the argument of disruption against return to the parent unfairly. She points to the comment by Justice McSorley in her Reasons, at para. 126, that “far too much time has elapsed to allow the court to conclude that it would be in the child’s best interests to move him from a home where he is thriving to his mother’s home especially given the lack of emotional connection evident in this case.” She argues that the passage of time itself is not a criterion to determine best interest, specifically when the trial judge herself contributed to a significant portion of the lapsed time.

[24] I would agree that if there is any type of case that should receive timely adjudication it is a child protection proceeding. The importance of this is made clear by the stated purposes of the CFSA set forth in section 1, and in particular subsection 1(2) 3 iii which requires recognition that children’s services should be provided in a manner that “provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests” (emphasis added). Having said that, it is recognized that it is not often easy for judges, given the demands on their time and attention, to render judgment, with full reasons developed according to the standards required by the authorities, on as timely a basis as might be hoped for.

[25] It would appear from the context that Justice McSorley, in making the comment that “far too much time has elapsed” was speaking as of the time of rendering judgment, as she prefaced her comment by stating that the child “is almost three years of age”. It is noted that he was less than two years of age when the trial commenced and was just short of 27 months old at the time the trial concluded.

[26] However a review of Justice McSorley’s Reasons confirms that she did not rest her decision solely on the passage of time, but rather she included it as “another relevant circumstance.”

[27] The dilemma for this court is that, as indicated above, the paramount consideration throughout the proceeding, including on this appeal, remains the best interests of the child. The elapsing of time, including the time that the determination was under reserve after the conclusion of the trial, and its effect on a consideration of the best interests of the child, is a reality which this court cannot ignore in making a its assessment. Accordingly, regardless of its merit, this ground of appeal cannot, on its own, be given effect to, if to do so will adversely impact the best interests of the child.

(c) Issue 3 - Did the Trial Judge err in carrying out her assessment of the child’s best interests?

[28] As stated in the case of Catholic Children’s Aid Society of Toronto v. B.(N.) [2009] ONCJ 648 (Ont. CJ), affirmed 2010 ONSC 615 (SCJ), at para. 5, the paramount objective of disposition is to select a custody arrangement for the child that, for both his or her short and long-term future is likely to promote his or her best interests, protection and well-being. That was the task that was before Justice McSorley in this matter.

[29] Section 57(1) of the CFSA directs the court, once a child has been found to be in need of protection, to make one of the orders listed in that subsection or under section 57.1 “in the child’s best interests.” Subsection 37(3) requires the trial judge, as a person directed to make an order “in the best interests of the child,” to take into consideration the circumstances listed in that subsection, “as he or she considers relevant.”

[30] In coming to her ultimate finding on the nature of the order which would best promote C.G.’s best interests, Justice McSorley was required to review and weigh the evidence and make various findings of fact in order to permit her to carry out a consideration the circumstances set out in subsection 37(3). Her Reasons for Judgment were extensive, comprising 24 single-spaced pages.

[31] In my view, the issues raised by the Appellant in her Factum seek to invite this Court to conduct an independent review of the evidence to determine whether Justice McSorley’s individual findings are reasonable. That is not this Court’s function, nor is it this Court’s function to overturn individual findings made at trial based upon doubt that a reasonable trier of fact, acting judicially, could come to the conclusion that the trial judge did. This Court’s proper role is to examine the reasons for “clear and palpable” error (see Waxman v. Waxman 2004 39040 (ON CA), 2004 44 B.L.R. (3rd) 165 (Ont. CA) at paras. 310-311).

[32] The following observations of the Court of Appeal in Waxman at paras. 296-297 were recently adopted by the Divisional Court in the context of an appeal in a child protection proceeding in the case of Children’s Aid Society of Ottawa v. D. (S.N.) 2012 ONSC 1888 (Ont. Div. Ct.):

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: Housen at 246. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference. An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254 at 281.

...Housen provides a detailed analysis of the "palpable and overriding" standard of review... First and foremost, ... the "palpable and overriding" standard applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts. This court cannot retry any aspect of this case.

[33] It is therefore not necessary, nor appropriate, to carry out a detailed review of the reasonableness each individual finding in the “constellation of findings” of Justice McSorley to determine whether she made a “palpable or overriding error,” or whether there was a lack of factual support for her ultimate finding on disposition. In my view, even if Justice McSorley may have been in error in one or more of her individual findings as asserted by the in the Appellant’s Factum, the Appellant has not demonstrated that such errors went to the root of the penultimate finding of fact, namely what disposition would be in C.G’s best interests.

[34] At para. 106 of her Reasons, Justice McSorley referenced the “great deal of evidence” respecting the Appellant’s inability to connect with C.G. and meet his emotional needs. In my view, there was ample evidence upon which Justice McSorley was entitled to rely in making the finding that the Appellant was emotionally detached from C.G., the most notable being the evidence of Dr. McDermott, which strongly supported this finding, and which Justice McSorley accepted. The evidence of the access workers lent further support to Justice McSorley’s finding, at para. 112, that the Appellant’s interactions with C.G. during access were perfunctory for the most part and devoid of emotional connection.

[35] It is evident from a fair reading of Justice McSorley’s Reasons that her “best interests” finding rested primarily on her findings respecting the lack of emotional connection between the Appellant and C.G. Dr. McDermott’s recommendation that the legal ties between the parents and the child be severed, so as to free him for permanency planning outside of their care, similarly rested largely on her observations respecting a lack of emotional connection, supported by the observed marginal parenting skills. As indicated in section 37(3) of the CFSA, Justice McSorley was required to take into consideration the circumstances listed in that subsection that she considered relevant. I find that she made no palpable or overriding error in placing the degree of emphasis on the Appellant’s emotional detachment from the child that she did.

[36] The Appellant points to Justice McSorley’s comment that she did not believe that the relationship between the Appellant and C.G. is not “particularly” meaningful and beneficial to him, must mean that there remains some degree of meaning and benefit for him, and therefore there must be some emotional attachment between the child and the Appellant. I would not give effect to this submission. The observation by Justice McSorley that the relationship is not “particularly” meaningful and beneficial to C.G., at para. 130 of her Reasons, was made in the context of her consideration of the issue of access, after her finding that an order for Crown wardship was appropriate. A relationship is capable of being somewhat, or minimally, meaningful and beneficial without the existence of emotional attachment. Justice McSorley’s observation in this respect did not take away from her finding, expressed earlier, regarding the lack of emotional attachment between the mother and child.

[37] I am not satisfied that Justice McSorley made an error in principle, misapprehended the evidence or arrived at a clearly unreasonable result in reaching her determination that the best interests of the child called for a Crown wardship, no access disposition.

Conclusion

[38] For the reasons set forth above, the appeal is dismissed. The Order of Justice McSorley making C.G. a Crown ward with no access to her biological parents is upheld.

D.A. Broad, J.

Date: April 4, 2013