Sudbury and Manitoulin v. C. B., 2013 ONSC 5179

COURT FILE NO.: C-197-11
DATE: 2013-08-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Children’s Aid Society of the Districts of Sudbury and Manitoulin, Respondents

AND:

C. B., Appellant

BEFORE: The Honourable Madam Justice Patricia C. Hennessy

COUNSEL:
Dawn Dubois, for the Respondents

Darren L.M. Berlinguette, for the Appellant

HEARD: June 12, 2013

ENDORSEMENT ON APPEAL

[1] The father, C. B. appeals the order of Guay J, dated August 17, 2012, making the child L. S.-B. (born […], 2011) a Crown ward with no access. The father seeks an order placing the child in the care of R.G. under a 12 month supervision order subject to certain conditions.

[2] The trial before Justice Guay proceeded on the narrow issue of the placement of the child, either in the care of R.G. and J.F. or as a Ward of the Crown. All witnesses filed affidavits for their evidence in chief. Counsel for the parents cross examined two of the affiants.

[3] The appellant argued the following grounds of appeal: That the trial judge failed to appreciate that R.G. and J.F. are capable parents; that there was no evidence that R.G.’s osteoporosis would prevent her from caring for the child; that the trial judge erred in law and misapprehended the evidence by determining that the child’s continued access and relationship with his parents was not in his best interests and that the trial judge misapprehended the evidence by determining that R.G. and J.F. would not be able to manage the parents’ access to the child.

[4] The standard of review on a question of law is correctness and on mixed questions of law and fact is palpable and overriding error. (Children’s Aid Society of the District of Sudbury and Manitoulin v. D. D. 2004 47772 (ON SC), [2004] O.J. No. 5058, SCJ at para. 16)

[5] The parents consented to a finding that the child was in need of protection and agreed to a disposition that excluded them as caregivers. At trial, the parents submitted that the child should be permanently placed with R.G. and J.F.. By June 2013, the father had not exercised access to the child since March 2012.

[6] R.G. did not attend the appeal hearing although counsel for the father stated that she had planned to do so. She lives close by the court house and counsel advised that he had learned that she was en route to the courthouse. She did not arrive all morning.

[7] I am persuaded that there was ample evidence to support the trial judge’s finding that a placement with R.G. and J.F. would not be in the best interests of the child. The trial judge reviewed his concerns about R.G.’s serious and deteriorating health, which had already resulted in her giving up her job as a parental support worker. His concerns were legitimately based on the evidence before him. He noted in addition, R.G.’s difficulties in raising her own children, such that she requested the assistance of the Children’s Aid Society of the Districts of Sudbury and Manitoulin (“CAS”) and he noted the fragile health of the child and the likelihood of high care needs as he grew. Most importantly the trial judge considered the evidence from R.G. and J.F. with respect to their views on access to the child by the parents. The trial judge concluded on all of the uncontested evidence that the parents’ difficulties would continue to be visited upon the child, should the child be placed with the proposed caregivers.

[8] With respect to the issue of continued access of the parents, the trial judge considered the history of the child’s experience with his parents and their abilities or lack thereof to care for the child, given their limited intellectual development. In particular, the trial judge had regard for the views of Dr. Ross and CAS staff who had observed the child with his parents and who had extensive dealings with the proposed caregivers.

[9] The trial judge was of the view that the proposal that the parents have continued access to the child was against the test of best interests of the child. He noted the father’s serious challenges with anger control and management and how this had led to a change in the place of access and ultimately in the father refusing to see the child. He concluded that parental access to the child would put the child at risk of harm. These findings were well supported by the evidence.

[10] In considering the evidence the trial judge took into account the two proposals before the court and examined the advantages and disadvantages of the competing plans without any starting presumptions. He concluded inter alia that the proposal put forward by the parents would result in continued uncertainty for the child, which was contrary to his best interests. The trial judge underscored the need for finality which was in the best interests of this child who had been in care since birth and was now in a home with a sibling, waiting for final placement.

[11] The finding and reasons of the trial judge are in accord with the purposes of the Child and Family Services Act, achieving permanency for the child in accordance with his best interests.

[12] The trial judge did not err in law or make any palpable or overriding errors in coming to his decision. The appeal is dismissed.

The Honourable Madame Justice Patricia C. Hennessy

Date: August 27, 2013