SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS 12-404
DATE: January 25, 2013
RE: The Children’s Aid Society of Brant, Applicant/ Respondent
A N D:
J.P., Respondent/ Appellant
Child and Family Services Department Respondent to Appeal
Office of the Children’s Lawyer Respondent to Appeal
BEFORE: The Honourable Mr. Justice Robert J. Nightingale
COUNSEL:
K. Stacy Neill, for Applicant/ Respondent
Nicole Matthews, for the Respondent/ Appellant- J.P.
Penny Martin, for the Respondent -Child and Family Services Department
Birkin Culp, for the Office of the Children’s Lawyer
HEARD: January 9, 2013
E N D O R S E M E N T
Introduction
[1] The Appellant J.P. appeals the Order of the Honourable Mr. Justice Edward made on September 7, 2012. Justice Edward in that Order dismissed the Appellant’s motion to be added as a party to the child protection proceedings in the Ontario Court of Justice involving the six children, aged 18 months to 10 years, of A.T. and S.T..
[2] On June 1, 2012 Justice Edward had made an Order that the T. children be made crown wards without access to their parents on a motion for summary judgment by the Respondent Children’s Aid Society of Brant (“the Society”) and set the issue of sibling access and a kinship placement over to trial. (On an appeal brought by the mother, which was dismissed, that Order was rescinded and replaced with an Order, still in effect, that the children should not be placed with either or both parents, that there should be no access by the parents to the children and that pending a determination at trial of the kinship placement issue, the children would remain in the temporary care of the Respondent Society with no access by the parents.)
[3] The Appellant J.P. then brought a motion returnable August 3, 2012 requesting an Order adding the Appellant as a party to the proceedings asking that the children be placed with her. All of the evidence was placed before Justice Edward on the return date of the motion and he reserved his decision at the conclusion of the hearing rendering it on September 7, 2012. In his judgment Justice Edward dismissed the motion of the Appellant to be added as a party to the proceedings.
[4] It is from that Order that J.P. appeals based on three grounds of appeal noted as follows:
Justice Edward erred in relying entirely on the relationship between the Children’s Aid Society of Brant and J.P. as a determining factor in whether or not to add the third party as a participant in the child protection proceedings regarding the children.
Justice Edward erred in not giving proper weight to the evidence of J.P. as to her suitability of being a kin caregiver for the children.
Justice Edward erred in not considering the evidence that J.P. resides in Hamilton Ontario and that her request for the Children’s Aid Society of Hamilton to conduct a home study was not an unreasonable one.
[5] The appeal of J.P. was opposed by the Society, the Child and Family Services Department of the Six Nations Council, and by the Office of the Children’s Lawyer.
Standard of Review
[6] The law is quite clear that findings of the trial judge are entitled to deference by the appellate court and should not be overturned unless the trial judge committed a palpable and overriding error in his findings of fact, inferences made from such findings, or mixed fact and law. Housen v Nikolaisen (2002) 2002 SCC 33, 2 SCR 235.
[7] A palpable and overriding error means a decision that is clearly wrong being contrary to the evidence, where the trial judge patently misunderstood or misapprehended the evidence or where there was no evidence whatsoever to support the trial judge’s conclusions. A palpable and overriding error must be plainly identifiable and the error is shown to have affected the result.
[8] Justice MacPherson stated in Children’s Aid Society of the Regional Municipality of Waterloo v. S.L.S (2010) O.J. 2312:
“In family law cases, appellate courts have a narrow scope of review because of the fact- based and discretionary nature of the decisions to be made. Appellate courts must give considerable deference to the decisions of family and child protection courts. Children’s Aid Society of Toronto and S.A.C. 2005 43289 (ON SC), 2005 CanLII43289, (2005) O.J. 4718 (Ontario S.C.)
The Ontario Court of Justice is akin to a specialized tribunal and therefore deference should be given to the Judge hearing the matter, given that the Ontario Court of Justice or Family Court is given exclusive jurisdiction over protection proceedings under the Child and Family Services Act. Children’s Aid Society of Toronto v R.C. (2009) CanLII49313, (2009) O.J. 3861 (Ontario S.C.)”
[9] In this case, the trial judge was in my view very much aware of the applicable principles that have developed under the case law before adding a party to a child protection hearing including:
i. whether the addition of the party is in the best interests of the child,
ii. whether the addition of the party will delay or prolong proceedings unduly,
iii. whether the addition of the party is necessary to determine the issues,
iv. whether the additional party is capable of putting forward a plan that is in the best interests of the child,
v. whether the person seeking to be added as a party has a legal interest in the proceedings.
Children’s Aid Society of London and Middlesex v S.H. (2002) 2002 46218 (ON SC), O.J. 4491 (Ont C.J.)
Although Justice Edward did not specifically articulate each of these five principles in his reasons, he is a very experienced Justice familiar with these matters and did specifically comment in his reasons for judgment, that “a four or five-part test is often articulated” in the jurisprudence related to the addition of parties to a child protection proceeding. He was obviously referring to those principles. The appellate court should not presume that the trial judge was not aware of or failed to apply the appropriate legal test merely because the test was not explicitly set out in the judge’s reasons. Ali v Triple 3 Holdings Inc (2002) CanLII45126 (ONCA). In any event, the Appellant concedes that Justice Edward did not make any error with respect to the applicable law in his findings.
The Facts
[10] The affidavit evidence that was before Justice Edward on the original motion of the Appellant confirmed that five of the six children and their late brother S.T. who was born after the protection application was commenced, being the biological children of A.T. and S.T., were found to be in need of protection and were made wards of the Respondent Society for four months in December 2009.
[11] The status review application in September 2010 resulted in a finding that the children were in continuing need of protection and a temporary Order was made returning three of the children to the parents subject to a supervision Order on terms and conditions. Three other children were returned to those parents in December 2010 subject to the Society’s supervision. Unfortunately, 5 children were re-apprehended by the Society in January 2011 as a result of the death of the 18 month old child S.T., and a subsequent police investigation.
[12] On […], 2011 another child was born to those parents, which child was also apprehended at birth by the Respondent Society and a protection application was initiated. That child has also remained in the care of the Respondent Society since that time period.
[13] On April 4, 2011 the Appellant J.P. filed an application for sole custody of that infant child with the Superior Court of Justice in Hamilton even though he was legally in the care of the Society. The Appellant and also brought a motion to put forth a plan for that child in the child protection proceedings.
[14] However, the affidavit evidence that was before Justice Edward confirmed that the Appellant J.P. would not provide criminal record checks for all of the adult members in her household or consent to disclosure of any Children’s Aid Society files of her own child who had earlier been placed with the Hamilton Children’s Aid Society to enable the Respondent Society to evaluate the Appellant’s plan for the care of the child in May 2011. The Society accordingly brought a motion for such disclosure but in July 2011, the Six Nations Band Council withdrew its motion to have J.P. added as a party to the proceedings before the Society’s motion for disclosure was argued and the matter did not proceed.
[15] On October 12, 2011 the parents of the children were charged with numerous serious criminal offences relating to the death of their child S.T..
[16] The Respondent Society brought a motion for summary judgment on June 1, 2012 for an Order that the six children were in need of protection under Section 37 of the Child and Family Services Act. Justice Edward granted that judgment finding that five of the children continued to be in need of protection under Section 37(2)(bi), (bii), (f), and (g) of the Child and Family Services Act and the newborn child in need of protection under Section 37(2)(bi),(bii),(g.1). Justice Edward also ordered that the children be made wards of the Crown with no access to the parents and ordered a trial on the issue of kin placement and sibling access.
[17] On August 3, 2012, Justice Edward made an Order removing the parents as parties in the proceeding and adding two other persons, C.T. and W.S.S. as parties being relatives of A.T. so that they could be considered as kinship placement for the children. Justice Edward reserved his decision regarding the motion of the Appellant J.P., who is a friend of the children’s parents, to be added as a party.
[18] Justice Edward had before him nine affidavits on the Appellant’s motion to have herself added as a party to the proceedings including her own and those of the paternal grandmother, the children’s aunt, and the mother of the children. The Society also provided affidavit evidence from their representatives in opposition to that motion.
[19] The affidavit evidence submitted by the Appellant J.P. included testimonial letters confirming that she was a talented and committed member of her community. It is clear that Justice Edward in his reasons for judgment considered that evidence. Those letters however did not comment on the Appellant’s abilities as a parent.
[20] There was some evidence before Justice Edward regarding the Appellant’s plan of care for the children but there was also significant evidence before him that the Appellant, who is not a family member of the children, had had and was still having significant issues of conflict with the Respondent Society and was not cooperating with them to provide all of the relevant information that the Society needed.
[21] The allegations in the affidavit evidence of the Respondent Society before Justice Edward referred to this significant evidence of lack of cooperation of the Appellant which included the following:
a. The Appellant refused to co-operate and deal with the Society in conducting an assessment of the Appellant and obtaining a home study which is a Ministry standard stating she would only deal with the Children’s Aid Society of Hamilton and that home studies were created by the Children’s Aid Society to generate more funding from the ministry and are not legislated nor mandated.
b. The Appellant only provided a police record check for her daughter-in-law and herself, but not her son, both of whom resided with her which is required by the Society although she disclosed her son had a criminal record.
c. The Appellant only provided a police record search listing an Ohsweken Ontario address although she resided in Hamilton. The Society required a police record check in her area as local occurrences may not appear on this check as well as a police record search of all adult members of the household to assess a Plan of Care for the children by her.
d. The Appellant did not consent to disclose the Children’s Aid Society records from other provinces in Canada regarding her potential involvement with those Societies which is also required in the regulations.
e. The Appellant refused to sign a release enabling the Society to review the records of the Children’s Aid Society of Hamilton regarding one of her children who was a Crown Ward which was required to assess a home for a child in care in accordance with the applicable regulations.
f. Although asked by the Society to do so, the Appellant did not obtain the consents or releases for police checks from her daughter-in-law and her adult son who resided with her and would be caring for the infant child so that the Society could conduct the required and appropriate checks on their backgrounds.
g. The Appellant had earlier refused in June 2011 to provide the required consents to enable the Society to assess her proposed plan of care for the newborn child, withdrew it before her motion was heard and did not meet with the Society until shortly before this motion to be added as a party regarding the 6 children involved in these proceedings in early August 2012. In May 2012, the Children’s Aid Society of Hamilton advised they would only conduct an assessment with the consent of the Appellant which consent she did not provide before the hearing before Justice Edward (her Counsel did indicate in submissions to Justice Edward that her consent was now being provided but there was no documentation before him to confirm that).
h. Although there was no evidence that the Appellant had in fact requested Children’s Aid Society of Hamilton to conduct a home study and served the appropriate request on them, there was evidence that the Children’s Aid Society of Hamilton would not be conducting a home study on her.
[22] In addition, Justice Edward had already added as parties two family relatives of the children who were being very cooperative with the Society and were putting together a plan for the children being placed with them.
[23] Justice Edward was clear in his decision that he would not preclude the Appellant from becoming a party to a protection application simply because of a perceived conflict between her and the Respondent Society.
[24] However, Justice Edward also went on to clearly state that he had to figure out the future for these six children who had suffered a horrible past and that in his view, any success in the case would only be achieved if there was tremendous cooperation between whomever the children were placed with and the Society. Justice Edward found that it was evident to him that there was no such cooperation between the Appellant and the Society even though she appeared to be a talented and committed member of the community. He was entitled to consider this evidence as a very relevant factor in this case. Children’s Aid Society of Brant v. S.M. (2003) O.J. 4584 (OCJ).
[25] Justice Edward went on to state that he had particular concerns with whether or not the addition of the Appellant would unduly delay or prolong the proceedings, one of the five principles that he was required to consider in hearing her motion. He found, obviously based on the evidence before him, that by adding her as a party he would create almost a second trial to deal with her purported issues with either the Society or the Hamilton Children’s Aid Society even before he could address how the Appellant could meet the needs of these six children who desperately needed a stable home. That obviously included, as pointed out by Mr. Culp acting for the Office of the Children’s Lawyer in this case, the potential of various court motions to require production of all the relevant documentation which the Society would require to consider her proposed kinship motion, at least some of which was being disputed by her. Justice Edward found that such an exercise would simply prolong the case that had already taken far too long to address the needs of those six children who had been in the Society’s care for 20 months which was certainly open for him to find based on all of the evidence that was before him. It was clear from his reasons that Justice Edward felt that by adding the Appellant as a party, the hostility between her and the Society and the proceedings being prolonged unduly were the most significant factors of this case and on that basis, he dismissed the application to have the Appellant added as a party to the proceeding.
[26] Justice Edward’s decision was based clearly on the evidence that was before him. The Appellant has not established to this Court’s satisfaction that this was a case of there being no evidence to support his conclusions or that clearly he misunderstood or misapprehended the evidence that was before him. Even if this Court, on review of all the evidence, may have come to a different conclusion than Justice Edward based on its own interpretation of the evidence or inferences drawn from it, the case law is clear that this is not permissible in the absence of a palpable and overriding error by the Motions Judge which would have affected the result, which I find is not the case.
[27] Accordingly, the Appellant’s appeal is dismissed.
[28] I am prepared to receive short submissions regarding the issue of costs from the parties in writing as costs were not addressed on the hearing of the appeal. If any of the Respondents wish to pursue a claim for costs they shall provide those submissions within 10 days of the date of this Order not exceeding four type-written double spaced pages excluding the Bill of Costs and Costs Outline with the Appellant to submit her responding submissions within 7 days after that.
[29] If no claims for costs is to be been made by any of the Respondents, then there will be no order as to costs.
January 25, 2013
The Honourable Mr. Robert J. Nightingale