ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 112-2012 (Simcoe)
DATE: 2013-11-19
BETWEEN:
The Children’s Aid Society of
Haldimand and Norfolk
Applicant
(Respondent on Appeal)
– and –
K.P.
Respondent
(Appellant)
P. James, Counsel for the Applicant
(Respondent on Appeal)
Brigitte Gratl, Counsel for the Respondent (Appellant)
W. Drescher, Counsel for the children,
K.J.O.P. and B.B.R.M.
HEARD: October 21, 2013
The Honourable Mr. Justice Patrick J. Flynn
reasons for JUDGMENT
[1] The Appellant purports to appeal two Orders:
The final Order representing the trial Judgment of L.P. Thibideau J. dated July 25, 2012; and
The temporary Order of K.A. Sherwood J. made at the trial management conference of October 12, 2011.
[2] The purported appeal of the Order of Sherwood J. is completely misconceived. It only first appeared in the Appellant’s Amended Notice of Appeal which was tucked into the Supplementary Appeal Record and dated May 8, 2013. It is well out of time and improper and that appeal must be dismissed.
[3] The Appellant is the biological mother of the children:
(i) K.J.O.P., born […], 2008 (“K.J.O.P.”); and
(ii) B.B.R.M., born […], 2010 (“B.B.R.M.”).
[4] The children are represented by the Office of the Children’s Lawyer (Mr. W. Drescher).
[5] K.J.O.P.’s biological father is unknown. B.B.R.M.’s biological father, B.M., was noted in default on October 12, 2011.
[6] The children’s maternal grandparents, S.P. and L.P., who attended the hearing of this appeal with their daughter, the Appellant, are not parties to this proceeding. Rather, they are part of the Appellant’s plan of care.
[7] The Appellant appeals the final Order of the trial judge, L.P. Thibideau J., which found both children in need of protection pursuant to s.37(2)(b)(i) and (ii) of the Child and Family Services Act (“CFSA”) and made them wards of the Crown without access to the parents.
[8] Both the Respondent, Children’s Aid Society of Haldimand and Norfolk (“CAS”) and the Office of the Children’s Lawyer (“OCL”) ask that this appeal be dismissed so that the children may be placed for adoption.
[9] K.J.O.P. first came into care under a Temporary Care Agreement on June 30, 2009.
[10] That Agreement was terminated by the Appellant on July 22, 2009, and K.J.O.P. was returned into her care July 24, 2009.
[11] One month later, K.J.O.P. was first apprehended from the Appellant’s care on August 28, 2009, then returned to the temporary care of the Appellant under supervision, less than four months later on December 16, 2009.
[12] After one more month, K.J.O.P. was next apprehended on January 14, 2010.
[13] B.B.R.M. was apprehended at birth on […], 2010.
[14] So, K.J.O.P. has been now in care for about 46 months – nearly four of his nearly five years – and B.B.R.M. has now been in care for his whole life – about 40 months.
The Law
[15] The standard of Appellant review in this matter:
(a) on questions of law, is that of correctness; and
(b) on questions of fact or mixed fact and law, is that of palpable and overriding error.
[16] There are two dominant principles applicable in child protection proceeding appeals:
(i) the best interests of the children; and
(ii) the particularly high degree of deference owed to the trial judge.
[17] It is open to an appellate judge in these matters to dismiss the appeal despite errors, if satisfied that the same outcome would be the result of another trial.
[18] The Respondents here are ad idem in arguing that the trial judge made no errors.
[19] It is clear law that the Ontario Court of Justice in child protection proceedings (and any Unified Family Court site) is akin to a specialized tribunal and because that court has exclusive jurisdiction over protection proceedings at first instance, heavy deference must be paid to the trial judge.
[20] That trial judge will always be in a “distinctly privileged position” as regard assessing witnesses’ credibility, the weighing and assessing of evidence and the drawing of factual inferences.
[21] In her Factum or in oral argument, the Appellant complained that the trial judge erred in the following areas. While other errors may have been touched upon in the Appellant’s Notice of Appeal, they were not strenuously or at all argued by her.
- Did the trial judge err in admitting the Supplementary Trial Record into evidence?
[22] The Applicant was represented by competent counsel at trial and throughout the pre-trial process, including the trial management conference before Sherwood J.
[23] When I put this issue to Appellant’s counsel she specifically disavowed any intention of raising on the appeal before me any ground of appeal based on ineffective representation by K.P.’s trial counsel.
[24] Not only did her counsel consent to the admission of the Supplementary Trial Record and the materials contained therein, he tendered it.
[25] An Order had been made at the trial management conference, on consent, for the evidence of Dr. Dockx to be given by medical report – a practitioner report and not as an expert report – subject to cross-examination. Appellant’s counsel at trial chose not to cross-examine Dr. Dockx.
[26] I would therefore rule that there was no error in the admission by the trial judge of the Supplementary Trial Record. So long as he didn’t treat the evidence contained therein as expert evidence (and he specifically said that he did not), he was fully allowed to rely on it to resolve any ambiguities or conflicts in the viva voce evidence. This ground of appeal must fail.
- Did the trial judge err in relying on the letters of Dr. Dockx, the “professional opinion” of the nurse and the comprehensive pain program psychological assessment for the maternal grandmother as if they were expert evidence?
[27] It is patent that the reports before the trial judge were not expert reports. Nor were they referred to or treated as such. Nor were they treated as parenting capacity assessments.
[28] It was appropriate for the trial judge to rely on the health professionals’ reports to weigh evidence, draw inferences and make findings of fact. These reports were admissible under the Evidence Act.
[29] Despite the two disclosure Orders made before trial, disclosure of the psychological report and the medical records was not made until after the trial began. On May 9, 2012, the Appellant’s counsel produced two medical briefs and requested that they be marked as exhibits.
[30] I agree with counsel for the Respondent CAS that the current concerns set out by Dr. Dockx constitute an “opinion based on experiences like any other person in the community who could make an opinion as to the quality of care by the mother based on observation”.
[31] The Appellant and her parents were called at trial and had ample opportunity to comment on or refute those reports. The Appellant’s counsel had full opportunity to cross-examine.
[32] I would hold that these admissible reports were not treated by the trial judge as if they were expert reports. There was no error here. The Appellant fails on this ground as well.
- Did the trial judge err in accepting hearsay evidence contained in the Affidavits filed as exhibits?
[33] The Appellant’s trial counsel agreed that the CAS Affidavits be admitted as evidence and clearly did not raise the issue of hearsay or object to the admissibility of any statement made in the Affidavits.
[34] The child protection worker/deponent, Jamie Brownlee, was examined in chief and cross-examined. The trial judge made clear that hearsay was not forming part of the substantive evidence but was admitted for background only.
[35] The trial judge’s Reasons demonstrate a careful weighing of the evidence and assessment of the credibility of the witnesses.
[36] Because of the deference owed to the trial judge, it is not open to me to second guess that weighing or assessment.
[37] Accordingly, the Appellant fails on this ground as well.
- Did the trial judge err in law when he failed to address the best interests of the children by inadequately dealing with the structured test under s.37 of the Child and Family Services Act?
[38] While it is clear that the trial judge did not expressly articulate the specific elements of the best interest factors in determining the disposition of this case, it is equally clear that his careful Reasons are child-centered and focused on the best interest of these two young boys.
[39] Consideration of the relevant factors is implicit in his decision.
[40] Nowhere is there any requirement in law that the trial judge is required to recite the applicable statutory provisions or the words “best interests of the children”.
[41] While there are some who might conclude that it would be better for such reference or recital be made, I am satisfied that the trial judge’s Reasons show that his primary concern throughout the trial was the children’s best interest.
[42] This is another example of the circumstance in which an Appellate court must give due deference to the experienced trial protection judge, knowledgeable in the law. I find no error and this ground of appeal fails as well.
- Did the trial judge err in taking judicial notice of K.J.O.P.’s memory life?
[43] The Appellant argues that the trial judge placed great weight on inappropriately taking judicial notice when he writes, at para. 73:
... because of the age of this child [K.J.O.P.] the court can take judicial notice of the fact that it is unlikely that this child has any memories of the time when he was in care of his mother and grandmother.
[44] K.J.O.P. was first apprehended from the care of his mother and the home that she shared with the grandparents when he was eight months of age. Except for one month between December 16, 2009 and January 14, 2010, when he was 12 months of age and was apprehended the final time, he has remained in the care of the CAS. Any reasonable person, with ordinary life experience and properly informed would reasonably conclude that such a child is unlikely to have memories of the time when he was in the care of his mother and grandmother.
[45] In my view, therefore, this ground of appeal also fails.
[46] I would agree that the trial judge’s assessment and conclusion about the lack of beneficial and meaningful relationship between the mother and the children.
Conclusion
[47] In the end, this appeal must fail.
[48] The trial judge’s conclusions are amply supported by the totality of the evidence which he carefully considered.
[49] His approach was child-centered. While he recognized the mother’s desire to parent these children, he was not satisfied that the issues of concern raised by the CAS had resolved to enable her to give the children the care that is in their best interests. The trial judge placed priority on the children’s need for permanence over the mother’s desire to have another chance.
[50] I can find no error of law nor any palpable and overriding error of fact or mixed fact in law. Accordingly, the appeal is dismissed.
P. J. Flynn J.
Released: November 19, 2013
COURT FILE NO.: 112-2012 (Simcoe)
DATE: 2013-11-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children’s Aid Society of Haldimand and Norfolk
Applicant
(Respondent on Appeal)
– and –
K.P.
Respondent
(Appellant)
REASONS FOR judgment
P. J. Flynn J.
Released: November 19, 2013
/lr