COURT FILE NO.: FS-12-12655
DATE: August 16, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
Windsor-Essex Children’s Aid Society
David Ziriada for the Society
Respondent on Appeal
- and -
K.F.D.D.
Appellant on Appeal
- and -
A.M.
Michael D. Frank for K.F.D.D.
No one appearing for A.M.
Respondent on Appeal
HEARD: May 24, 2013
MITROW J.
INTRODUCTION
[1] The respondent, K.F.D.D. (“appellant”), appeals from the final order of D.W. Phillips J. (“the trial judge”) dated October 17, 2012 made in the Ontario Court of Justice at Windsor after eight days of trial spanning approximately three and a half months.
[2] The trial judge made an order of Crown wardship, placing the child, I.E.A.D., born […], 2009 (referred to as the “child” or “I.”) in the care of the applicant (respondent in appeal), Windsor-Essex Children’s Aid Society (“the Society”). The order provided that there would be no access to the appellant.
[3] The proceeding before the trial judge was a protection proceeding and the parties present consented to an order that the child be found in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] (“the Act”).
[4] The appellant seeks to set aside the order of the trial judge and requests that the child be placed in her care and custody subject to the supervision of the Society for a period of six months on terms and conditions deemed appropriate by the court. In the alternative, the appellant requests an order for specified access to the child a minimum of two times per month.
[5] The appellant is the child’s mother. The respondent, A.M., is the child’s father. He did not defend the protection application, he did not appear at the trial and he did not participate in the appeal.
[6] The Society opposes the relief sought on the appeal and requests that the appeal be dismissed.
BRIEF BACKGROUND HISTORY
[7] The background history of this matter is discussed in detail in the reasons for judgment. What follows below is a brief summary of the background.
[8] Ms. L.D. (“Ms. D.”) and Mr. D.M. (“Mr. M.”) are the parents of the appellant and I.’s maternal grandparents (and for convenience they are collectively referred to as the “maternal grandparents”).
[9] The appellant was born […], 1993. She was 18 years of age when the trial started.
[10] The Society had involvement for a number of years with the maternal grandparents regarding the children in their care, including the appellant. In or around June 2009, the appellant, then age 15 and pregnant with I., left the maternal grandparents’ residence where she had been residing. At that time, there were disputes between the appellant and the maternal grandparents and the appellant no longer wanted to reside with them. Soon thereafter, the Society started a protection application regarding the appellant and the appellant was made a temporary ward of the Society for a period of six months.
[11] Shortly before giving birth to the child, the appellant was placed at the Bethesda Centre in London, Ontario for the purpose of assisting her regarding planning for her pregnancy and thereafter the care of her newborn child.
[12] The appellant’s stay at the Bethesda Centre was fraught with difficulties traceable to the appellant’s inappropriate behaviour, including concerns regarding her parenting of the child.
[13] As a result of mounting protection concerns regarding the appellant’s ability to care for the child while at the Bethesda Centre, the child was apprehended and placed into the care of the Children's Aid Society of London and Middlesex in late February 2010. At that time, a protection application was commenced. The appellant returned to Windsor, Ontario for placement in a group home following the apprehension of the child and thereafter the protection proceeding was transferred to the Ontario Court of Justice at Windsor.
[14] The respondent, A.M., has no relationship with the child. In the reasons for judgment (at p. 34), the trial judge describes the evidence of the appellant regarding the respondent, A.M.. The appellant testified he was physically abusive towards her and that he was verbally and sexually abusive towards her.
[15] The child has been in continuous interim care with the Society (and for a brief period, the Children's Aid Society of London and Middlesex) from February 24, 2010 until trial.
[16] Although the program at Bethesda in London was not successful, the Society continued to assist the appellant and this included securing a teaching foster parent program that the appellant began in the fall of 2010.
[17] The appellant began to have more extensive visitation with the maternal grandparents and was able to return to live with them at their home in the fall of 2010. In December 2010, a final order was made in relation to the appellant, placing her in the care of the maternal grandparents subject to Society supervision for a period of six months and subject to five terms and conditions.
[18] On October 17, 2011, an order was made terminating the supervision order relating to the appellant on the basis that the appellant had turned 18 years of age and was no longer subject to the Act.
[19] In order to assist the court in assessing the ability of the maternal grandparents and the appellant as to their ability to care for the child, there were two assessments.
[20] The first assessment was completed by Dr. Janet Orchard and it was dated February 16, 2011. The assessment conducted by Dr. Orchard was pursuant to an order requiring a parenting capacity assessment of the appellant to assist in determining whether the appellant has the ability to adequately parent her daughter, I. Dr. Orchard is a clinical psychologist licensed to practice in Ontario.
[21] Dr. Orchard’s assessment was quite negative for the appellant. Dr. Orchard concluded at the time of the assessment that the appellant will not be capable of parenting I. on her own. Dr. Orchard’s assessment is discussed in more detail below.
[22] Dr. Catharine Lee completed a parenting capacity assessment of the maternal grandparents, Ms. D. and Mr. M., in relation to their care of I. The purpose of this assessment included an assessment as to the abilities of the maternal grandparents to care for I. At the time of the referral for the assessment, the concerns relating to the maternal grandparents’ ability to parent included a history of intervention with this family by the Society, including concerns about neglect and issues regarding providing an appropriate home environment.
[23] Dr. Lee is a psychologist licensed to practice in Ontario. Dr. Lee’s report is dated November 17, 2011. This report is also quite negative. Dr. Lee concludes that Ms. D. and Mr. M., either alone or jointly, do not possess the capacity to parent their granddaughter, I. The conclusions of Dr. Lee are discussed in more detail below.
[24] The appellant was residing with the maternal grandparents at the time of trial and was having supervised access to the child at the home of the maternal grandparents with the access being supervised by Society case aides.
GROUNDS OF APPEAL
[25] The grounds of appeal, discussed in more detail below, can be summarized as consisting of the following:
a) that the trial judge erred in failing to properly consider the evidence of Dr. Lee;
b) that the trial judge failed to properly consider and/or give due weight to:
(i) the positive evidence of the appellant’s development and her follow through with recommendations made by Dr. Orchard; and
(ii) the positive evidence of the appellant’s cooperation with the Society;
c) the decision of the trial judge is contrary to ss. 1 and 57(3) of the Child and Family Services Act; and
d) after making an order of Crown wardship, the trial judge erred by not giving any real consideration to the issue of access.
[26] For reasons set out below, I would give no effect to any of the grounds of appeal and, accordingly, the appeal is dismissed.
SCOPE OF APPELLATE REVIEW
[27] The scope of appellate review has been summarized by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33. What follows below is a brief summary of the principles enunciated in that case.
[28] The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities (para. 3).
[29] The standard of review on a pure question of law is that of correctness. The appellate court is free to replace the opinion of the trial judge with its own (para. 8).
[30] The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error” (para. 10). This deferential standard applies not only when the credibility of witnesses is an issue, but is also applicable to all conclusions of fact made by the trial judge (para. 24).
[31] In relation to the standard of review for inferences of fact, it is not the role of appellate courts to second-guess the weight to be accorded to the evidence. Where there is no palpable or overriding error made by the trial judge as to finding the underlying facts, “… then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where the disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts” (para. 23).
[32] Matters of mixed fact and law lie along a spectrum. Where, for example, an error is made in relation to the application of a legal principle, then that error may be characterized as an error of law subject to a standard of correctness. However, appellate courts must be cautious in finding that a trial judge erred in law, as it is often difficult to extricate legal questions from factual questions. For this reason these matters are referred to as questions of mixed fact and law and, in such cases, the standard of review is more stringent and the general rule can be stated that “… when the issue on appeal involves a trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error” (para. 36).
DISCUSSION
A. The trial judge erred in failing to properly consider the evidence of Dr. Lee.
[33] This ground of appeal relates to the evidence of Dr. Lee and can be summarized as follows:
a) The appellant submits that when Dr. Lee reviewed the Society file, that Dr. Lee failed to review any information in the Society file for the period starting in the summer of 2006 to approximately June 2009. The appellant submits that during this time period there was some positive information regarding the maternal grandparents (who were the subjects of the assessment). The appellant submits that the trial judge, in weighing the evidence of Dr. Lee, neglected to properly take into account Dr. Lee’s failure to consider that positive information, and that neither Dr. Lee nor the court seemed to have considered that during this time the Society did not seek to apprehend the appellant or her sibling from the maternal grandparents and the Society did not seek a supervision order;
b) The conclusions reached by Dr. Lee are further thrown into doubt because Dr. Lee admitted she was not aware of the fact that the appellant was placed with the maternal grandparents (being the appellant’s parents) pursuant to a supervision order in late 2010, and further that Dr. Lee admitted she was not aware that the supervision order with respect to the appellant had been terminated by the court in 2011;
c) The appellant argues that Dr. Lee’s criticism of the maternal grandparents as to their understanding of the child’s needs was not warranted, and that in relation to access, Dr. Lee’s concerns about an access visit that she observed were contrasted by the positive observations of the Society case aides who had supervised access visits and also the observations of the Society protection worker, who was present for some access visits; and
d) The appellant submits that the conclusions of Dr. Lee are not supported by the facts, thus calling into question the conclusions reached by Dr. Lee.
[34] This ground of appeal rests substantially on the submission that the trial judge failed to take into account, or misconstrued, relevant evidence thereby erring in accepting the conclusions reached by Dr. Lee in her assessment. Dr. Lee’s conclusions and recommendations regarding the maternal grandparents were negative. Dr. Lee found that each maternal grandparent presented with concerns impacting on his or her ability to function as a parent. Dr. Lee found there was extensive history with the Society and, despite utilization of extensive resources, the maternal grandparents repeatedly put their children (including the appellant) at risk of neglect or denied concerns raised by others. It was Dr. Lee’s conclusion that historically the maternal grandparents demonstrated limitations in their capacity to collaborate with service providers and to meet their children’s needs. Dr. Lee characterized the problems faced by the maternal grandparents as “severe, long-standing, and resistant to change.”
[35] In relation to Ms. D., Dr. Lee found there were significant limitations in her ability to understand appropriate developmental expectations and parenting abilities. Ms. D. evidenced a lack of insight into her own limitations and the child I.’s needs. The profiles endorsed by Ms. D., according to Dr. Lee, indicated signs and symptoms of psychiatric or psychological difficulties that will likely adversely influence her parenting ability. Dr. Lee felt that the prognosis for change based on involvement in therapeutic interventions was guarded.
[36] In relation to Mr. M., Dr. Lee stated that his relationships tend to be characterized by conflict and misunderstandings. This pattern would likely adversely influence his interactions with family members and service providers. Mr. M. acknowledged a history of drug abuse and need for mental health services. Although Mr. M. followed through with obtaining medication and therapeutic supports, Dr. Lee concluded that Mr. M.’s responses during the assessment indicated a failure to acknowledge limitations in himself on his parenting ability and that this would place the child I. at risk for harm or neglect. Dr. Lee further stated that Mr. M. admitted readily that he contributed little to the raising of his children other than providing material needs and was not actively involved in parenting other than to discipline his children, and yet Mr. M. tended to deny limitations in his parenting ability.
[37] Dr. Lee concluded that neither Ms. D. nor Mr. M. currently possessed the capacity to parent I. on an independent basis. It was also Dr. Lee’s opinion that Mr. M. and Ms. D. did not possess the capacity to co-parent I. as a couple.
[38] The evidence that Dr. Lee allegedly failed to consider (according to the appellant) is included in Ex. 24, being a case activity report forming part of the Society’s records.
[39] I find that a review of the transcript of Dr. Lee’s cross-examination in relation to issues raised on appeal does not assist the appellant. Dr. Lee testified simply that she did not recall some of the excerpts from Ex. 24 that were read to her by the appellant’s counsel during cross-examination. Dr. Lee, regarding one excerpt, testified she “may have” seen that excerpt in her review of the file. What is clear from Dr. Lee’s cross-examination is that the focus of the appellant’s complaint was that some of the positive information regarding the maternal grandparents during the relevant three year period was not specifically referred to in Dr. Lee’s report.
[40] During further cross-examination, Dr. Lee testified that she does not write down in her notes everything that she reads. Dr. Lee stated she included in her written report information that is “important and relevant.” Dr. Lee offered an explanation that some of the positive information that was not included in her report may not have been “important and relevant” having regard to the subsequent events that occurred.
[41] The trial judge did consider the cross-examination of Dr. Lee and the information from the Society records put to her during cross-examination. It is important that the trial judge relied on admissions made by the appellant and the maternal grandparents during their cross-examination in weighing the conclusions drawn by Dr. Lee. The trial judge states at para. 95 of his reasons:
While respondent mother’s counsel Mr. Frank conducted a vigorous and probing cross-examination which pointed out certain pieces of information, not drawn to the attention of the assessor, it did nothing at the end of it to dislodge the essential critical findings by the assessor. With particular reliance upon the admissions (drawn in consequence of cross-examination) on the respondent mother and each of her parents, the conclusions drawn by the assessor are entirely reliable and highly persuasive.
[42] Regarding the supervision order and its termination, although Dr. Lee may not have been aware that the appellant was placed with her parents in 2010 pursuant to a supervision order, Dr. Lee was aware that the appellant had resumed living with her parents. The fact that the appellant was with her parents pursuant to a supervision order was not a material factor that could reasonably have influenced the conclusions drawn by Dr. Lee. The evidence indicates that the supervision order was terminated by the court as a result of the appellant attaining age 18 and hence no longer being subject to the Act. When Dr. Lee did her assessment, the appellant was already 18 years of age and Dr. Lee testified she was cognizant of the fact that the appellant, given her age, would not have been subject to an order under the Act. The fact that Dr. Lee was unaware of the actual termination of the supervision order was not material to Dr. Lee’s conclusions.
[43] The trial judge accepted the conclusions of Dr. Lee in the context of considering all the evidence before him. There was ample, and indeed compelling, evidence before the trial judge to justify his acceptance of Dr. Lee’s conclusions. Given the standards of appellate review discussed earlier, the trial judge is entitled to considerable deference as to his factual findings and inferences arising therefrom. The trial judge made no errors in considering and assessing the evidence of Dr. Lee.
B. The trial judge failed to properly consider and/or give due weight to: a) the positive evidence of the appellant’s development and follow through with recommendations made by Dr. Orchard in the parenting capacity assessment of the appellant, and b) the positive evidence of the appellant’s cooperation with the Society; and the decision of the trial judge is contrary to [ss. 1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html#sec1_smooth) and [57(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html#sec57subsec3_smooth) of the [Child and Family Services Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html).
[44] These grounds of appeal are inter-related and are discussed together. There was some fresh evidence filed on appeal and that is also dealt with below.
[45] These grounds of appeal include what the appellant submits is at the heart of this appeal: that the trial judge failed to give due weight to the positive evidence as to the appellant’s accomplishments subsequent to the report of Dr. Orchard and, accordingly, the appellant submits that the trial judge fell into reversible error making an order of Crown wardship.
i. The Report of Dr. Orchard
[46] Dr. Orchard’s report was completed approximately four months after the appellant attained age 17.
[47] The report discussed and addressed numerous issues regarding the appellant: her conflicts with the maternal grandparents (being the appellant’s parents), including leaving home while pregnant at the age of 15 and refusing to return home; her rebellious behaviour at Bethesda group home in London shortly before, and then after, the birth of I.; her disclosure as a victim of sexual molestation at approximately age 8 or 9 by her paternal grandfather; her emotional immaturity; despite her young age, her involvement in numerous intimate relationships and being victimized in some of those relationships; and her tendency in being disinterested and distracted during basic parenting skills training attended by her at the teaching foster home where I. was placed.
[48] The foregoing summary is not exhaustive of the concerns discussed in Dr. Orchard’s report. In concluding that the appellant is not capable of parenting I., Dr. Orchard stated in part (at page 20, Ex. 12):
While possessing adequate intellectual ability to learn, [K.F.D.D.’s] emotional issues and coping inadequacies mean that she would not be able to adequately parent I. Unfortunately I cannot estimate when [K.F.D.D.] might reach a point of greater emotional maturity such that parenting I. adequately might be a reasonable possibility. Achieving such maturity will take time and will also require openness to receiving guidance and counseling. [K.F.D.D.] has indicated a willingness to attend anger management counseling at Teen Health. However, she will also require therapy to consider the lingering impact of her sexual and physical abuse history. That counseling would be available through the Sexual Assault Crisis Centre. Until such time as she has demonstrated greater emotional maturity, self-awareness and ability to protect herself in relationships, [K.F.D.D.] will not be capable of parenting I. on her own.
[49] The trial judge accepted Dr. Orchard’s findings and conclusions, stating as follows at para. 121:
To repeat for certainty, there was no cross-examination of Dr. Orchard on her report. The report was unchallenged. The report was not contradicted. There was nothing in the evidence offered by the respondent mother causing doubt about the content or conclusion of the report authored by Dr. Janet Orchard. The court concludes that the findings and conclusions are sound and entirely reliable.
[50] In coming to this conclusion, the trial judge made no errors. His conclusion is supported by the evidence.
ii. The Appellant’s Progress Subsequent to Dr. Orchard’s Report
[51] The theory of the appellant’s case as presented at trial was that the appellant was no longer the immature teenager assessed by Dr. Orchard, that the appellant had made important gains, and that the appellant would continue to reside with the maternal grandparents (being the appellant’s parents), who would assist the appellant with the child’s care. The appellant, however, would be the primary caregiver. The appellant was agreeable to the child being placed with her, in those circumstances, subject to supervision by the Society and subject to such terms and conditions as were appropriate.
[52] Generally, the supervised access visits that the appellant had with the child occurred three times per week, for two hours each visit, at the home of the maternal grandparents and was supervised by Society case aides. The appellant called the case aides as witnesses and it is not disputed that their evidence as to the access visits, generally, was positive.
[53] Subsequent to Dr. Orchard’s report, the appellant took some parenting courses. She initiated and engaged in counselling at the Sexual Assault Crisis Centre. The appellant began to participate in anger management counselling even though this was not something that was requested of her by the Society. The appellant completed a sufficient number of credits to obtain a high school certificate (as distinct from a diploma where substantially more credits are required). The appellant testified she was planning to attend Everest College.
[54] Ms. Ferraro-Tabone testified for the Society. She is a child protection worker and she was the family services worker for the family for the period starting late 2011 until trial. Her role was to support the appellant in her goal to have the child returned to her care.
[55] During cross-examination, Ms. Ferraro-Tabone acknowledged that the appellant was generally cooperative, had signed releases as requested, had agreed to a hair follicle test to test for drugs (the result was negative), and had done what was requested of her by the Society. Ms. Ferraro-Tabone also testified in cross-examination as to the appropriate terms of supervision, however, that evidence was elicited in the context of what the terms of supervision might be assuming that the court made a supervision order.
[56] It was forcefully argued by the appellant that the trial judge either ignored or failed to give sufficient weight to the positive evidence of the appellant’s accomplishments. I am unable to agree with this submission. I find that the trial judge did consider this evidence.
[57] The trial judge did consider the parenting courses and sexual abuse counselling taken by the appellant. Regarding the latter, the trial judge noted that some issues were not discussed by the appellant with her counsellor, including the appellant having engaged in a sexual act with a boy in a park, observing her father (being the maternal grandparent, Mr. M.) watching pornography or being awakened in her sleep by noise created when the maternal grandparents engaged in sexual intercourse. The trial judge specifically referred to the appellant’s attendance at high school and the credits the appellant earned in obtaining a high school certificate. The trial judge reviewed the appellant’s evidence as to her plans to attend Everest College and her evidence that she would arrange for daycare for the child, should the child be returned to her, although the trial judge also noted that the appellant had yet to attend and inspect the daycare facility described by her and located close to her residence. (The foregoing is addressed by the trial judge in paras. 181, 184 – 201 and 208.)
[58] In relation to the appellant’s plans to attend Everest College, the trial judge found that the cross-examination of the appellant creates “real doubts about the prospect for success” (see para. 202) and the trial judge thereafter referred to the specifics of the appellant’s cross-examination that confirm the somewhat last minute aspect of this plan.
[59] A significant emphasis was placed by the appellant on the positive evidence of Ms. Ferraro-Tabone during cross-examination and (according to the appellant) the trial judge’s failure to consider or give proper weight to this evidence. However, the trial judge made the express finding that “despite the answers provided by [Ms. Ferraro-Tabone] in cross-examination, the report and conclusions of Dr. Orchard are far more compelling” (see the footnote on p. 37 of the reasons). The trial judge then goes on to discuss Dr. Orchard’s conclusions. Also, the trial judge was very alive to the cross-examination of Ms. Ferraro-Tabone as to the terms and conditions of a potential supervision order as the trial judge posed a number of questions to Ms. Ferraro-Tabone on that matter. Finally, in relation to access, the trial judge reviewed in detail the evidence of Ms. Ferraro-Tabone and also the evidence of the three case aides who had supervised the access visits (see paras. 161 – 173).
[60] Accordingly, I would give no effect to the appellant’s submission that the trial judge failed to properly consider, or that he failed to give due weight, to the positive evidence as to the appellant’s progress subsequent to Dr. Orchard’s assessment. The trial judge did consider this evidence, but he did not give this evidence the weight that the appellant submits he should have. There is no basis to interfere, on appeal, with the trial judge’s assessment of this evidence and the weight he ascribed to it.
iii. The appellant’s submission that the trial judge’s decision is contrary to the [Child and Family Services Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html), specifically ss. 1 and 57(3).
[61] Section 1 of the Child and Family Services Act provides as follows:
1(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:
To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
To recognize that children’s services should be provided in a manner that,
i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.
To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.
To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.
[62] Section 57(3) provides as follows:
57(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.
[63] The trial judge in his reasons, at para. 230, formulated a number of conclusions with reference to the statutory “best interests test” set out in s. 37(3). The trial judge’s findings included the following:
a) that there is nothing in the evidence to suggest that the appellant’s inability to care for the child would change;
b) that while the appellant is older, she has not sufficiently matured or learned enough to alleviate the court’s concerns;
c) that the history of the appellant and her family suggest that the prognosis in placing the child with the appellant “is wholly unfavourable”;
d) that notwithstanding the love and affection demonstrated by the appellant and her parents towards the child, as demonstrated during supervised access, the appellant and her parents, whether individually or together, lack capacity to parent;
e) that although the appellant has a genuine love for the child, such love is insufficient in the face of the appellant’s “obvious lack of capacity to parent,” and that based on the assessment evidence, there is nothing to suggest that this circumstance will change.
[64] I would give no effect to the ground of appeal that the trial judge’s decision was contrary to s. 1 and s. 57(3). Given the length of time the child had been in care, the trial judge correctly considered the options available to him, on the evidence, as being either Crown wardship or a supervision order.
[65] Contrary to the submissions of the appellant, I find that the trial judge, in a thorough, careful and well-reasoned decision, considered and weighed all relevant evidence. The trial judge was acutely aware of the choices available for disposition, and he considered, and rejected, the less restrictive alternative based on a sound analysis of the evidence before him, and a proper application of the principles set out in the Act, including ss. 1 and 57(3).
[66] The trial judge was not satisfied that the appellant, or the maternal grandparents, could parent the child. This conclusion is supported strongly by the evidence and there is no basis on appeal to disturb this finding and the order of Crown wardship.
iv. Fresh Evidence
[67] During the hearing of the appeal, counsel on consent filed three exhibits as fresh evidence on the appeal. These exhibits consisted of a request to admit dated April 3, 2013 served by the Society and two responses to requests to admit served by the appellant dated April 12, 2013 and May 6, 2013. The fresh evidence related to facts occurring subsequent to the trial.
[68] In her response to request to admit dated April 12, 2013, the appellant agreed that she had moved out of the home of her parents at the end of December 2012, that she had commenced a relationship with one J.S., who is 17 years of age, and that she moved into the home of J.S.’s mother. The appellant further agreed that she and J.S. were looking for a residence of their own where they can live together. The appellant also confirmed that she did not go to Everest College after the trial ended. The appellant further confirmed that she did not return for anger management counselling following the trial. Finally, she stated that she did not have a specific plan to live with her parents at this time (being April 12, 2013) but that she continues to be on good terms with her parents and that she could live with them if the court deemed that appropriate and in the best interests of her daughter should her daughter be returned to her care. She claimed that she would place her relationship with her daughter as her number one priority and she would follow the court’s direction in terms of who she can live with and this included J.S.
[69] In her response to request to admit dated May 3, 2013, the information from the appellant included that she was now no longer residing with J.S. and that she was not in a relationship with him. She states she now lives with her parents and plans “to continue living with them indefinitely.”
[70] The fresh evidence is not helpful to the appellant. The overall effect of the fresh evidence is that it serves to corroborate some of the trial judge’s concerns. Although I would have dismissed the appeal in the absence of the fresh evidence, it is instructive to briefly discuss the fresh evidence in the context of the evidence at trial.
[71] The appellant, following the trial and pending appeal, decided to engage in yet another relationship. She moved out of the maternal grandparents’ home contrary to her assertion at trial that her plan was to continue to reside with them.
[72] The appellant’s formation of a further relationship confirms Dr. Orchard’s concerns as to the appellant’s impulsiveness and immaturity in seeking out intimate relationships. The appellant’s move from the maternal grandparents’ home provides some corroboration as to concerns expressed by the trial judge regarding the appellant’s instability. The reliability of some of the evidence given by the appellant at trial is adversely affected by the fresh evidence.
[73] The appellant’s admission that she did not go to Everest College after trial, validated the trial judge’s skepticism about the viability of this plan.
[74] During cross-examination of Ms. Ferraro-Tabone, one of the points being pursued was that the appellant should be commended for seeking out anger management counselling, especially considering that this was something she was not required to do by the Society. Accordingly, the appellant’s admission subsequent to trial that she did not attend anger management counselling following the trial “because I was not required to do so by the Society and it was not part of their plan for me” suggests that it was somewhat disingenuous for the appellant, at trial, to have touted this fact.
C. Did the trial judge err by not giving any real consideration to the issue of access once he decided on Crown wardship?
[75] The appellant submits that the trial judge did not specifically deal with the issue of access in his reasons. The appellant submits further that there was ample evidence during the trial regarding the bond and relationship between the child and the appellant to justify an access order. The appellant argues that the relationship between her and the child is “beneficial and meaningful” to the child.
[76] There is a statutory presumption against access to a Crown ward. Section 59(2.1) of the Act states:
59(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child’s future opportunities for adoption.
[77] In Children’s Aid Society of the Niagara Region v. J.C., 2007 8919 (ON SCDC), [2007] O.J. No. 1058 (Div. Ct.), the Divisional Court considered the predecessor section to s. 59(2.1). Although the predecessor section had a slightly different wording, the difference was not material. The effect of that case is that a person seeking access to a Crown ward has the onus of proving on a balance of probabilities that the relationship between that person and the child is “beneficial and meaningful” to the child and that the ordered access will not impair the child’s future opportunities for adoption. “Beneficial” has been held to mean “advantageous” and “meaningful” has been held to mean “significant.” The Divisional Court further stated that the fact that the children loved their mother, and she loved them, and that the children enjoyed some of their visits with their mother, did not equate with their relationship with the mother being “significantly advantageous to their overall wellbeing.” (See paras. 22, 23 and 38.)
[78] The principle of preserving family ties through access cannot come into play where an order of Crown wardship is made unless the parent seeking access can bring himself or herself within the requirements of the Act (now s. 59(2.1)): see Catholic Children’s Aid Society v. N.B. and O.G. 2009 ONCJ 648 at paras. 276 – 279 (O.C.J.).
[79] The trial judge had numerous concerns regarding the appellant and her ability to parent the child. The trial judge made a number of negative findings against the appellant, summarized at pages 68 and 69 of the reasons. The trial judge accepted the content and conclusions of Dr. Orchard’s report. In her report, while observing an access visit, Dr. Orchard states that she became increasingly concerned over a lack of physical affection between the appellant and the child (see Ex. 12, page 12). The trial judge was cognizant of the Society’s plan for adoption and the need for permanency planning.
[80] While the trial judge did not discuss access specifically in the context of s. 59(2.1), I find, reading the reasons for judgment as a whole, and considering the findings of fact made by the trial judge, that the trial judge came to the conclusion that the appellant failed to discharge the onus on her to satisfy the trial judge on a balance of probabilities that the relationship between the appellant and the child was beneficial and meaningful to the child, and/or that the ordered access will not impair the child’s future opportunities for adoption.
[81] I find that the trial judge’s order that there be no access is amply supported by the evidence and the findings of fact, and I see no basis to interfere with this order.
CONCLUSION
[82] For the reasons set out above, the appeal is dismissed.
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: August 16, 2013
COURT FILE NO.: FS-12-12655
DATE: August 16, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of London and Middlesex
Respondent on Appeal
- and -
K.F.D.D.
Appellant on Appeal
- and -
A.M.
Respondent on Appeal
REASONS FOR JUDGMENT
MITROW J.
Released: August 16, 2013