COURT FILE NO.: 93/10

(Walkerton)

DATE: 20130201

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF THE COUNTY OF BRUCE

Greg Stewart, for the Children’s Aid Society

Applicant

• and -

D. J.

Peter Harrison, for the Respondent D. J. (Appellant)

J. E.

Hamoody Hassan, for the Respondent J. E. (Appellant)

CHIPPEWAS OF SAUGEEN FIRST NATION

Katherine Hensel, for the Respondent Chippewas of Saugeen First Nation

ONEIDA NATION OF THE THAMES

Chris George, for the Respondent Oneida Nation of the Thames

Respondents

Diane Barker and Jane Long, counsel on behalf of the children

HEARD: August 25, 26, 27, 28, 2012

REASONS FOR JUDGMENT

Fragomeni J.

[1] The appellants, D. J. and J.E. are the biological parents of the children, J. E. Jr. born […], 2004 and S.E. born […], 2005.

[2] The father, J.E., is a member of the Oneida Nation of the Thames. The mother, D.J., is a member of the Chippewas of Saugeen First Nation. The children, J. Jr. and S. are members of the Chippewas of Saugeen First Nation.

[3] In or about October 2008, the Children’s Aid Society of the County of Bruce (“CAS”) commenced a Protection Application with respect to J. Jr. and S. A trial of the Application was held over a period of 29 days before the Honourable Mr. Justice Bean between October 2009 and August 2010.

[4] At trial, the CAS sought an order that both children be made Crown Wards with a view to adoption, with no access by either parent. The parents, supported by both Bands, sought an order that the children be placed with their mother, and that the father continue to have access.

[5] On November 12, 2010 the Honourable Mr. Justice Bean ordered that both J. Jr. and S. be made Crown Wards with no access to the parents. The parents and the two First Nations appeal this order.

The Evidence at Trial

[6] J. Jr. and S. have been in the care of the CAS since January 2008. In January 2008 the CAS assumed the care of the children under a temporary care agreement. In October 2008 the CAS proceeded with a Protection Application. The mother opposed this application. The father did not oppose the application but requested continued access to the children.

[7] The trial of the Crown Wardship application took place over 29 days throughout 2009 and 2010, commencing October 19, 2009 and concluding on August 12, 2010. The Judgment of Justice Bean is dated November 12, 2010.

[8] Throughout the trial process the children remained in foster care. The children had access to their parents until the Crown Wardship with no access Order was made. The parents proceeded with a motion for access pending the determination of the appeal. This motion was heard by the Honourable Mr. Justice Ricchetti and on September 20, 2011 the motion was dismissed.

[9] The main witness called at trial included:

D.J. - the mother

J.E. - the father

Mark Heathfield: child protection worker who worked with the family since 2007

Sue Sahler: family resource worker with the Society

O.R.: children’s previous foster mother

Maria Riggin: supervisor of the Society’s Adoption services

Bruce Fleming: child protection worker who worked with the family from November 2005 to 2006

S.D.: daycare supervisor

Olivia Ribeiro: Society counsellor that had worked with the family

J.M.: daycare supervisor

Marcia Roote-Skye: Band representative for the First Nation

Bonnie Mason: employed with the Anishinabek Child & Youth Prevention Service and Bank representative for the First Nation

Protection Concerns:

[10] In the Protection Application the CAS identified the following main concerns:

(1) Hygiene concerns regarding the children and the mother’s home.

(2) Chronic diarrhoea identified at the children’s daycare.

(3) Domestic conflict between the mother and father.

(4) Developmental delay relating to both J. Jr. and S.

(5) Aggression between the children.

(6) The presence of metal pins in J. Jr.’s torso.

(7) Unclean and unsanitary conditions of the mother’s home.

(8) The parents’ inability to manage everyday childcare responsibilities.

[11] The London CAS first became involved with this family in 2004 on a referral from health services at Oneida, regarding concerns about J. Jr.’s growth and development. As a result, the mother signed a Voluntary Services Agreement with the London CAS.

[12] Bruce Fleming was assigned as the family’s worker in September 2004. He referred the children to the Thames Valley Children’s Centre for physiotherapy, occupational therapy and speech therapy. The parents often missed these appointments, as well as appointments with the doctor, dentist, and a respite service, namely Marymount Children’s Services.

[13] In his testimony, Bruce Fleming set out his concerns which included the following:

(a) The parents often slept late into the day, along with the children or put them to bed during the day to avoid having to occupy them.

(b) The children were not being stimulated but were often placed in front of the TV in a car seat or highchair.

(c) There were safety concerns with the apartment including a broken balcony door, broken glass in the doorway, old diapers and garbage on the floor, and the children picking things up off the floor and putting them in their mouths.

(d) J. Sr.’s schizophrenia appeared to be managed by medication but this resulted in him sleeping a lot.

(e) J. Sr. abdicated all parenting responsibility to the mother. The mother was often overwhelmed, stressed, crying, shaky, frustrated and angry. She was also going to court at that time to deal with childhood sexual abuse.

(f) The children’s hygiene was problematic. At times the children were covered by bug bites and scabbed over bites. The daycare reported concerns about the children’s hygiene, rashes and bedbugs and bites on the children that became infected.

(g) The children did not attend daycare regularly and the daycare reported that the children needed to be washed more regularly.

(h) J. Sr. stated he used drugs occasionally to help him eat and sleep and acknowledged that this money would probably have been better spent on diapers and wipes for the children. J. Sr. did state that groceries were always provided.

[14] In his examination-in-chief Bruce Fleming testified to the following:

Q. At the outset of your involvement, what understanding, if any, did you have about the issues that your Children’s Aid Society was working with this family on?

A. There were ongoing concerns about the parent’s abilities to manage everyday childcare responsibilities. There were concerns about neglect of the children’s basic needs. There were concerns about Al’s mental health status and the relationship between A. and D.. There was a concern that there had been some violence or power and control issues in the home.

…They were struggling to make, to get to appointments, to get the children to the doctor. I had arranged around the early to mid-point of my involvement with them to have the children seen regularly by the Thames Valley Children’s Centre, which is an agency that helps children with developmental disabilities or with physical disabilities and helps families to assist their children. So, we arranged for physiotherapy, occupational therapy and speech therapy and the parents sometimes missed, missed appointments to go there unless I drove them or arranged for taxis to be sent. The parents would miss appointments with the doctor. The parents were also referred to what’s called Marymount Children’s Services, which is a respite service for parents to help, to give parents a break during the day or to have, for the children to have say, it’s like a sleep over and have child care ongoing to give the parents a break from day to day parenting responsibilities. They would miss appointments at Marymount, at the Thames Valley Children Centre, at regular dental - doctor’s appointments. They, they, you know, indicated to me that they were struggling with finances and just, they just seemed to be having a difficult time meeting their, their obligations out in the community.

Q. From your observations that you were able to make of the apartment that family was living in, were there any safety concerns that you had apart from the general level of cleanliness that you told us about?

A. There, there were. There was a back door leading out to a balcony and it was broken, I think there was broken glass in the doorway, I don’t recall exactly but I remember being a little bit, more than a little bit, concerned about that. The general, as I said the general state of the apartment. I note - I see in one of my notes that there was old diapers and garbage on the floor. There was - J. Jr. used to like to open and close doors quite frequently and he would get into things, climb on things, he - so I was concerned that there was a, that back door it had like a huge glass pane, much like the, the door here, not quite as large but, and that he would open and close doors and slam them and that he could break that glass and would, I was worried that it would shatter on him or broken glass would be near him. And his climbing - I wasn’t always convinced that the parents were really paying close attention and supervising him well enough. So, I was a little bit worried that - in terms of that, and the kids putting things in their mouth that were on the floor, you know, I was worried about those type of things as well.

(names removed)

Mark Heathfield - Child Protection Worker who worked with the family since 2007

[15] It is important to set out in some detail the testimony of Mark Heathfield:

Q. You were talking earlier about commencing discussions with D. regarding bringing the children into care, and can you share with us when that topic - approximately when that topic first arose?

A. Yes. That arose through the fall of 2007. D., initially, when A. moved out of the house predicted that she’d lost her third child and her life would be free and she would have full authority to raise the kids properly and she could have any friends she wanted. She wouldn’t need A.’s permission to do anything. And for a time, D. was just blooming with possibility of having her freedom back as a single woman with her children and she was looking forward to that. By later fall, with referrals coming from both ACYPS and the daycare that the children’s condition was deteriorating, and my own observations of the home - at one point I recall D. - the home was truly in a health question - and D. was bright and bubbly and carrying on and I was point out that this number of flies in the bathroom was absolutely unacceptable anywhere in Canada and it was just - what could be do about that? And oh, she didn’t quite put it together that well, open a window or somebody’s going to put screens on it from the Band and it’s not her fault. And the sink was plugged up, the toilet had recently overflowed, and in my own mind that was the point I drew a line - where are we going with this? And she just absolutely didn’t get it. And then I said, well, how can you be so cheerful? Like, I find this, I find this is something we need to deal with right away. And then she started to cry and said, I see right through her and being bubbly and cheerful is part of her coping to be by things. And that when she was really talking, she was sobbing and saying she really couldn’t do it anymore. The kids were too hard for her and then she blamed just about everybody in the support cluster - the public health nurse, Healthy Babies, ACYPS. She wanted to sue the women’s shelter. She would not call the police. She doesn’t trust police. And the picture then suddenly changed to a woman that was becoming increasingly isolated from the very supports that made everything possible. So, I introduced the topic to her in a very gentle, non-accusive way, that perhaps it was time to consider a Temporary Care Agreement so that the children would be well cared for and she would know that, and have the opportunity to address her own personal issues that - see where it goes. And she said she was quite open to the idea but then asked me, could she keep the children over Christmas and then do this in January.

Q. When was that, first of all, you referred to an incident where the flies in the bathroom, when was that?

A. Oh. That I would have to look up. Well, there were two incidents. I recall myself being in the apartment and quite put off by the volumes of flies, but the second one that really took the cake, that happened on September 28^th.

Q. And that was in what year?

A. 2007.

Q. And can you describe the condition, what really took you aback?

A. Well, it was a calamity of sensory experience. The home, as walking through the door had a terrible stench to it. I don’t think because D.’s in all the time there that she was particularly aware of it. D. proudly told me she called the health inspector and had the health inspector go to the home and that the health inspector had told the Band that this apartment is not suitable for children. That was the referral I received from ACYPS and so we went out attendance to check that out and she had some plans for addressing the issue and getting screens put on and we said we’d go out there in one month and at that time, on September 28^th, I opened the door to the bathroom and there were two species of flies there. One, of course, houseflies, but the other species of fly I didn’t recognize. They were heavily clustered above the exhaust vent and if you opened your mouth in there you might catch a few, they were that thick. The apartment smelled bad. There was huge swirls of dirt, clearly mopped with a dirty, wet mop in big circles on the linoleum floor with smudges all over the place and the mop was hanging up dripping into the sink and I asked her how, how does she rinse her mop while she’s cleaning the floor, because there was a pail there, and she said, well, she just rinses it in the sink and I noted, well, and we talked about you know, the dirty dishes are also being splashed with the drippings from the mop on the floor and the kids are eating off those dishes and the kids are eating - crawling around on the floor and it’s wet. There was mould or appearance of mould along the baseboards there - which was not necessarily her fault, I’d had previous client in that apartment that had a similar problem - but my point was that this was not something D. was responding to or reacting to. She just accepted it. So, you know, that was a particularly shocking visit.

(names removed)

[16] The evidence at trial was that the mother although provided with services from CAS, would disengage from those services and not cooperate with CAS. Bonnie Mason stated that there were times when the mother engaged with her to get services and then there were times when she didn’t.

[17] Bonnie Mason expressed concern about the development of the children. J. Jr. had delayed speech and S. was not yet walking at 20 months. There was a six month gap in the children receiving speech therapy after the move to Saugeen and a gap of almost one year in the children receiving occupational therapy and physiotherapy.

[18] The mother agreed that there were services available to her and her children but she chose not to access those services because she was afraid they would report her to CAS and would look down on her for asking for help.

[19] The following exchange during the cross-examination of the mother provides some context with respect to concerns raised as it relates to the mother disengaging from services and help:

Q. And Ms J., there were services available to you and the children through ACYPS while the children were residing with you at Saugeen, correct?

A. Yes.

Q. And you chose not to access those services, correct?

A. Yes, that is correct.

Q. And you did that because you were afraid of how the people at ACYPS would talk about you?

A. And report it to the C.A.S. if I asked them for help.

Q. And also that they would look down on you in some way for seeking that help, correct?

A. Correct.

Q. And I’m going to suggest to you that that’s an incident where you were putting your own needs ahead of the best interests of the children.

A. Yes.

Q. You will not cooperate with the placement of your children under a crown-wardship order?

A. That’s correct.

Q. Even if it included access for you?

A. That’s correct.

Q. In fact you would do whatever you could to frustrate that type of order, wouldn’t you?

A. Yes, I would.

Q. Do you not think it would have been reasonable at that point for you to have shared with them that you were looking to relocate and to find out what continued services might be available for him where you were going?

A. I didn’t think of it at that time.

Q. Ms J., I’m going to suggest to you that, in fact, you did think about it at that time, but you wanted to make the move to Saugeen to shake the Children’s Aid Society and these people off your back?

A. Yes, that’s correct, Mr. Sherwood.

Q. You saw that as a way to get out from under the Children’s Aid Society?

A. Get away from the city, Mr. Sherwood.

Q. And the Children’s Aid Society?

A. Yes.

Q. And you were prepared to do that even though it was going to affect the services that your children were receiving and that they needed?

A. Yes.

Q. Ms J., I’m going to suggest to you that you wanted to make that move to Saugeen because you wanted to be there and it didn’t matter to you what impact it had on the children?

A. Yes.

Q. And although you knew that you were going to make that move, you purposely withheld that information from the Children’s Aid Society in London?

A. Yes, I did.

(names removed)

Janice Mason

[20] Janice Mason, the children’s daycare supervisor testified in examination-in-chief to the following observations:

(i) both children had speech delays,

(ii) J. Jr. screamed and was not involved in play,

(iii) S. was quite awkward walking,

(iv) J. Jr. required extra staff to keep him occupied and to keep him from escaping,

(v) the children were not toilet trained when they first came into daycare,

(vi) the children engaged in masturbation at the daycare,

(vii) S. would go to strangers, wanting to be noticed and picked up and did not seem to have a sense of personal safety outside daycare,

(viii) the children would eat until the food was no longer being served and would be hungry from the time they arrived at the daycare,

(ix) the children frequently had diarrhoea.

Domestic Violence

[21] There was ongoing domestic violence. The mother told Mark Heathfield and Bonnie Mason that she had endured four years of abuse from J. Sr. On May 18, 2007 when Mark Heathfield and Bonnie Mason attended at the home following an incident, J. Sr. talked about killing his wife, in the presence of both children.

[22] By the fall of 2007 the CAS was receiving referrals from ACYPS and the daycare that the children’s condition was deteriorating. The Health Inspector had contacted CAS regarding the condition of the mother’s apartment.

[23] On January 8, 2008 the mother signed a Temporary Care Agreement for both children to be brought into care. The children’s development and presentation when they came into care was extremely concerning and included lack of language skills, lack of toilet training, J. Jr. screaming, biting himself and cowering in fright, chronic colds, fixation on food, and fear of bathing.

[24] The evidence of Mark Heathfield indicated that the children did “spectacularly better” after coming into care. Bonnie Mason, Janice Mason and Susan Sahler also testified about significant gains made by the children after coming into care. They indicated that the transformation of the children’s behaviour, language development, social development, and meaningful play with other children developed quickly.

Difficulties with Access

[25] The mother missed a significant number of access visits with the children. The mother demonstrated difficulty in keeping the children occupied and stimulated when with the children. By March 2009 there had not been any access for three months.

[26] The mother gave various reasons for missing access including new employment, shame that her children were in foster care; she was on committees, or because she didn’t feel like it. Sometimes she gave no explanation at all.

[27] Susan Sahler was scheduled to observe 102 visits. Three visits were cancelled due to court, bad weather and the children being ill. Of the remaining visits scheduled the mother attended 59% of the scheduled visits. When mother missed visits the children would be upset.

[28] The mother would make promises to the children and not keep them. Mark Heathfield stated in cross-examination:

On one occasion she had asked for an extended visit, particularly for J.’s birthday and she was going to arrange a ride in the fire truck and what not. We approved this and I supervised that visit myself and we waited and she didn’t show up that day. So in terms of schedule, when she does show up I think she does her very, very best with the children and they accept her completely and enjoy her attention.

(names removed)

[29] Another example is set out by Susan Sahler in her examination-in-chief as follows:

Q. And when you state that Ms J. spoke of all the presents she was going to buy them, what, what did she say, to your recollection?

A. She just told the children she was going to buy them lots of presents for Christmas. She was - she specifically mentioned Dora and tractors.

Q. When Ms J. made those statements to the children, how did they react?

A. They - at the time in December they were excited and understood about Christmas.

Q. To your knowledge or observation, did she deliver on those promises to the children?

A. Not to my knowledge, no.

Q. Based on your statements in that paragraph, what was Ms J.’s reaction when you explained to her about the, the last time the children having seen her, and this is now in March of 2009, was at, at Christmas time. How, how was her reaction?

A. There was no reaction or explanation.

(names removed)

Efforts to Promote the Children’s Cultural Heritage

[30] All of the parties involved with J. Jr. and S. agreed that maintaining and developing the children’s First Nation culture and heritage is important. The parents did take steps to ensure the children were exposed to cultural information specific to the First Nation people. During visits the mother would sing to the children in her First Nation language and teach them words. She showed the children the dream catchers she made. During one access visit the children went to see drums being made. She brought a book for the children on one access visit.

[31] Bonnie Mason testified that the CAS was open to considering any plan brought forward by the Saugeen First Nation to maintain the children’s connections with their cultural heritage and community. She stated that having an older mentor to the children would be beneficial to maintain a link to their cultural heritage. While in care, the children attended a naming ceremony to receive their spirit names.

[32] CAS welcomed a plan from any person or family from either Saugeen or Oneida First Nations who would have expressed an interest in adopting the children. Adoption would not affect their membership in the Chippewas of Saugeen First Nation. The mother would not agree to cooperate with a placement of the children under a Crown wardship order, even if it included access. She acknowledged that she would do whatever she could to frustrate that type of order. She would rather terminate her relationship with her children than participate in a Crown wardship structure with access.

[33] The mother was concerned that the children were culturally deprived while in care because they did not hear their language, eat traditional foods, or attend powwows, ceremonies and gatherings. The only way the children could be exposed to their cultural language was to be in her care.

Placement

[34] Mark Heathfield testified that the CAS came to the conclusion that no matter how much support the mother was offered or had, she could not parent the children. The CAS wanted to give her and the father the opportunity to locate a kinship placement if possible.

[35] When the children were brought into care there was a discussion about possible placements with the Saugeen community but none were available. Bonnie Mason contacted the First Nation Community at Cape Croker, but there were no placements available there

[36] At paragraph 59 of her factum, counsel for the Office of the Children’s Lawyer (“OCL”) sets out the efforts made to locate a culturally appropriate placement for the children:

Efforts made to locate a culturally appropriate placement for the children:

two Family Group Conferences (“FGC”) were held in June and July 2008 to try to find a placement for the children within the Saugeen or the Oneida communities;

a further temporary care agreement was signed on July 18, 2008 to allow for more time for proposed adoptive or kinship placements to come forward from community and family members. No placements were proposed as of October 2008, when the last Temporary Care Agreement expired;

D. J. approached members of her family but no one was willing to take the children. J. E. Sr. stated that there were no potential placements at Oneida or neighbouring communities with any of his family or anyone else at the time he was giving evidence on December 15, 2009;

S.D. (S.D.), witness for Mr. E., stated that he had approached two people in his community about a possible placement for the children. They declined. This effort was outside the FCG process. He was not aware of any other placements at Oneida. He did not make efforts to see if there was a potential placement for the children in affiliated First Nation communities within one hour of Oneida;

Leo Hopkins, owner and operator of Eagle’s Nest, testified that he has four foster homes, two in London and two in Windsor, and that his organization is the only First Nation organization offering this service and liaises with six Children’s Air Societies. The CAS must send a referral to Eagle’s Nest and Mr. Hopkins assesses whether a suitable placement exists. There can be a waiting list. Eagle’s Nest charges a per diem for children in his foster homes and pays the social workers and foster parents. Eagle’s Nest can offer a long term foster placement but not adoptive homes, however if foster parents wanted to adopt in a few years, Mr. Hopkins would be agreeable. At the time of trial, Eagle’s Nest held a possibility of placement, which would be unknown until the CAS made a referral and it was processed by Mr. Hopkins to determine if a suitable placement could be found; and

Bonnie Mason continued to look for a long term placement at Saugeen but was not able to find one and there was no permanent placement available at Cape Croker.

(names removed)

[37] The CAS proceeded with a Crown wardship application. Maria Riggin, adoption supervisor for the CAS, testified that the CAS had not received any plans from the Saugeen First Nation or Oneida of the Thames so the CAS was not able to pursue a placement at either of those places. In the absence of a First Nation home the CAS plan was to liaise with the family and community and encourage them to develop a plan that would promote and maintain their First Nation heritage.

Grounds of Appeal and Position of the Mother

[38] The mother raises the following issues and grounds of appeal:

(a) the trial judge made palpable and overriding errors of fact, including the following:

(i) that there were no set routines for the children while they were in the care of the mother;

(ii) the children’s developmental delays were attributable to the parenting afforded to them by the mother;

(iii) that the children were thriving since being taken into care;

(iv) the slivers found in the torso of J. Jr. were inserted while he was in the care of the mother and that it was unlikely that J. Jr. did not complain of pain caused by such insertion;

(v) the parents intended to re-unite and co-parent the children;

(vi) the mother was biased against white people.

(b) The trial judge erred in law in relying on the Courtroom demeanour and conduct of the parents in evaluating their credibility and ability to parent.

(c) The trial judge was unreasonable in making the following findings:

(i) the children’s best interests would be served by making them Crown wards for the purpose of adoption with no access;

(ii) the children’s cultural needs would or could be adequately met through the placement proposed by CAS.

(d) The mother did not receive effective assistance of counsel at trial.

Grounds of Appeal and Position of the Father

(a) The trial judge erred in finding that Crown Wardship with no access to be the least restrictive alternative pursuant to sections 57(2) and (3) of the Child and Family Service Act.

(b) The trial judge erred in placing undue weight on the strength of the proposed adoption when terminating access to the parents.

(c) The trial judge erred in not adequately considering the Native status of the children in the determination of Crown Wardship with no access.

(d) The trial judge erred in considering the demeanour of the parents during the trial as a relevant factor in his determination of the placement of the children.

Position of the Chippewas of Saugeen First Nation (Saugeen)

[39] Saugeen reiterates in its factum the grounds of appeal put forward by the mother.

Standard of Appellate Review

[40] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.), the court set out the following with respect to the standard of review for questions of fact at para. 25:

Although the trial judge will always be in a distinctly privileged position when it comes to [page256] assessing the credibility of witnesses, this is not the only area where the trial judge has an advantage over appellate judges. Advantages enjoyed by the trial judge with respect to the drawing of factual inferences include the trial judge's relative expertise with respect to the weighing and assessing of evidence, and the trial judge's inimitable familiarity with the often vast quantities of evidence. This extensive exposure to the entire factual nexus of a case will be of invaluable assistance when it comes to drawing factual conclusions. In addition, concerns with respect to cost, number and length of appeals apply equally to inferences of fact and findings of fact, and support a deferential approach towards both. As such, we respectfully disagree with our colleague's view that the principal rationale for showing deference to findings of fact is the opportunity to observe witnesses first-hand. It is our view that the trial judge enjoys numerous advantages over appellate judges which bear on all conclusions of fact, and, even in the absence of these advantages, there are other compelling policy reasons supporting a deferential approach to inferences of fact. We conclude, therefore, by emphasizing that there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge -- that of palpable and overriding error.

[41] Findings of fact made by a trial judge should not be set aside unless it can be shown that the facts found by the trial judge are:

(a) clearly wrong;

(b) unreasonable;

(c) unsupported by the evidence.

[42] In H.L. v. Canada (Attorney General) 2005 SCC 25, [2005] 1 S.C.R. 401 the court stated the following at paras. 55-56:

55 "Palpable and overriding error" is at once an elegant and expressive description of the entrenched and generally applicable standard of appellate review of the findings of fact at trial. But it should not be thought to displace alternative formulations of the governing standard. In Housen, for example, the majority (at para. 22) and the minority (at para. 103) agreed that inferences of fact at trial may be set aside on appeal if they are "clearly wrong". Both expressions encapsulate the same principle: an appellate court will not interfere with the trial judge's findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.

56 In my respectful view, the test is met as well where the trial judge's findings of fact can properly be characterized as "unreasonable" or "unsupported by the evidence". In R. v. W. (R.), [1992] 2 S.C.R. 122, McLachlin J. (as she then was) explained why courts of appeal must show particular deference to trial courts on issues of credibility. At the same time, however, she noted (at pp. 131-32) that

[page 422]

it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.

The statutory framework in criminal matters is, of course, different in certain respects. But as a matter of principle, it seems to me that unreasonable findings of fact -- relating to credibility, to primary or inferred "evidential" facts, or to facts in issue -- are reviewable on appeal because they are "palpably" or "clearly" wrong. The same is true of findings that are unsupported by the evidence. I need hardly repeat, however, that appellate intervention will only be warranted where the court can explain why or in what respect the impugned finding is unreasonable or unsupported by the evidence. And the reviewing court must of course be persuaded that the impugned factual finding is likely to have affected the result.

[43] The standard of review on a question of law is that of correctness (Housen at para. 8).

[44] The standard of review on a question of mixed fact and law is set out in Housen at paras. 33 and 36 as follows:

33 Where, however, an erroneous finding of the trial judge can be traced to an error in his or her characterization of the legal standard, then this encroaches on the law-making role of an appellate court, and less deference is required, consistent with a "correctness" standard of review. This nuance was recognized by this Court in St-Jean v. Mercier, [2002] 1 S.C.R. 491, 2002 SCC 15, at paras. 48-49:

A question "about whether the facts satisfy the legal tests" is one of mixed law and fact. Stated differently"whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact" (Southam, at para. 35).

Generally, such a question, once the facts have been established without overriding and palpable error, is to be reviewed on a standard of correctness since the standard of care is normative and is a question of law within the normal purview of both the trial and appellate courts. [Emphasis added.]

36 To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed law and fact". Where the legal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

[45] In Children’s Aid Society of Toronto v. G.S., 2012 ONCA 783 released November 19, 2012 the court dealt with the standard of review at para. 19 as follows:

In C.(G.C.) v. New Brunswick (Minister of Health and Community Services), [1988] 1 S.C.R. No. 1073, at para. 5, the Supreme Court of Canada said the following about the deferential standard of review applicable in family law cases in the context of a child welfare proceeding:

... 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.

Relevant Legislative Scheme

[46] Once a finding is made that the child is in need of protection, the court must determine what order for his or her care is in his or her best interests.

[47] Section 57 (1) of the Child and Family Services Act sets out the types of orders available to the court:

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1); 2006, c. 5, s. 13 (1-3).

[48] Sections 57(2), (3) and (4) state:

(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13 (4).

(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. 1999, c. 2, s. 15 (1).

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4).

[49] Section 37(3) of the CFSA sets out the factors to be considered in making an order that is in the best interests of the child:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

3. The child’s cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child’s views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3); 2006, c. 5, s. 6 (3).

[50] In Jewish Family and Child Services of Greater Toronto v. M.F. [2012] O.J. No. 2261, (ONCJ) C. Curtis J. states the following at paras. 124 to 125:

124 A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J) (1997), 23 R.F.L. (4th) 79 (Ont. Ct. [Gen. Div., Div. Ct.]).

125 The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance: Children's Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. Children's Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504 (Ont. Sup. Ct.).

[51] With respect to the issue of access, Justice Curtis provides an informative review of the test at paras. 133 to 140:

133 The test for access to crown wards is set out in s. 59 (2.1) of the C.F.S.A.:

Access: Crown ward

(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.

134 The process for a decision regarding access, following a decision that the children should be made crown wards, was also set out recently by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., supra, 2010 (Ont. Sup. Ct.), para. 25, as follows:

1. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1)(a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

2. Determine whether the access would impair the child's future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss the claim for access. If not, go to the next step.

3. Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58).

135 Once there has been an order for crown wardship, the legislation reflects an intention to shift the focus away from providing services to facilitate the re-integration of the child back to the natural family, towards a focus on long-term, permanent placement, preferably through adoption: Children's Aid Society of Ottawa v. R.L., 2004 CarswellOnt 3080, 132 A.C.W.S. (3d) 718, [2004] O.T.C. 665 (Ont. Sup. Ct.), para. 57; Children's Aid Society of Niagara Region v. C. (J.), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

136 There is a presumption against court ordered access for a crown ward in order to facilitate permanency planning: Children's Aid Society of Niagara Region v. C. (J.), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

137 Once the decision is made in favour of crown wardship, the burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order. This is an extremely difficult onus for parents to discharge, but appellate authority has repeatedly confirmed that the burden is on the party seeking access: Catholic Children's Aid Society of Toronto v. M.(C.), [1994] 2 S.C.R. 165 (S.C.C.), p. 50; Children's Aid Society of Toronto v. D.P., 2005 CarswellOnt 4579, [2005] W.D.F.L. 4375, [2005] W.D.F.L. 4373, 19 R.F.L. (6th) 267, 202 O.A.C. 7, 93 A.C.W.S. (3d) 853, [2005] O.J. No. 4075 (Ont. C.A.).

138 Access is the exception and not the rule in the context of a crown wardship order. Section 59(2) of the C.F.S.A. creates a presumption that any right of access is revoked: Nouveau-Brunswick (Ministre de la santé & des services communautaires) c. L. (M.), [1998] 2 S.C.R. 534, 230 N.R. 201, 204 N.B.R. (2d) 1, 520 A.P.R. 1, 165 D.L.R. (4th) 58, 41 R.F.L. (4th) 339, [1998] S.C.J. No. 52, 1998 CarswellNat 557 (S.C.C.), para. 44.

139 The onus is on the persons seeking access to a crown ward to prove on a balance of probabilities that:

(1) the relationship between the person and the child is meaningful to the child;

(2) the relationship between the person and the child is beneficial to the child; and,

(3) access will not impair the child's future opportunities for a permanent or stable placement.

The parent has the onus of establishing all three portions of the test in section 59 (2.1) of the C.F.S.A.. This is a very difficult test for the parent to meet: Children's Aid Society of Niagara Region v. C. (J.), supra, 2007 (Ont. Div. Ct.).

140 The meaning of the phrase "beneficial and meaningful" was considered in Children's Aid Society of the Niagara Region v. M.J. , 2004 CarswellOnt 2800, [2004] W.D.F.L. 510, 4 R.F.L. (6th) 245, [2004] O.T.C. 634, [2004] O.J. No. 2872 (Ont. Sup. Ct.), para. 45-47:

What is a "beneficial and meaningful" relationship in clause 59 (2)(a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

I read clause 59 (2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

Issue - Trial judge’s findings re: No set routines for the children while in Mother’s care

Trial Judge’s Reasons:

The children have been in care for approximately three years.

From February 2005, their CAS worker, Bruce Fleming, attempted to assist the parents, but they were resistant to his advice. They seemed to him to be depressed, over-stressed and overwhelmed. He referred the children to Thames Valley Children Centre and Marymount Children’s Services because of their developmental delays. The parents missed appointments with them to their physician and dentist. The children’s attendance at daycare was sporadic. There were no set routines in the house. Mr. Fleming accessed services for their family but the parents did not grasp the CAS concerns, despite intensive work with them.

[52] The appellants argue the uncontested evidence demonstrates that there were routines for attendance at daycare, outdoor play after dinner and bedtime. In support of that position the appellants point to the testimony of Sue Sahler and J. Sr. as it relates to outdoor play after dinner and bedtime.

[53] The OCL and CAS submit that the trial judge heard testimony that while in London, the children would often sleep until late in the day along with the parents and/or were put to bed during the day so that the parents would not have to occupy them. The evidence noted that the children were not receiving adequate stimulation; instead they were often placed in front of the TV in a car seat or highchair. The father abdicated all parenting responsibility to the mother who was often overwhelmed, stressed, crying, shaky, frustrated and angry. The children did not attend daycare or their doctor or dentist or other professional appointments regularly. The OCL submits further that the evidence demonstrated that when the family moved to Saugeen, the focus of the CAS workers was to focus on the parenting capacity deficits. Lack of routine was one factor in that assessment but not a significant or overriding factor. The more significant aspects of concern related to supervision deficits, hygiene problems, house maintenance issues, domestic violence and denial of same, and later the issue relating to the presence of slivers in J. Jr.’s abdomen.

[54] With respect to the issues relating to routines at the mother’s house, the testimony of Sue Sahler provides some background and context with respect to this concern:

Q. … You’d indicated to Ms J., as a result of her conversation with you about sleeping routine, that the children needed a routine, they did not appear to have a routine and that’s why you believe they were having difficulty settling into sleep at foster, in foster care. Is that correct?

A. I don’t believe that I said that she didn’t have a routine. We talked about routines and what a healthy routine would be. And Ms J. had indicated to me that that was her routine, to let the children play outside until they were tired.

Q. And in fact you - she’d indicated to you the routine was for her to take them outdoors and have them play under her direct supervision in order to tire them out in the evening. Is that correct?

A. Yes.

Q. And she’d indicated to you that that was her routine with the children?

A. Yes.

Q. And you’d also indicated to her that that was inappropriate?

A. I, I would not have used the word inappropriate with her because that was her routine. I would have talked about healthy routines, different routines. And the issue was more of trying to explore of what her routine was with the children to help them settle into foster home with their bedtime routine. That’s all I was trying to do, is bridge the routine.

A. …That’s when she told me that they just - they go outside, they’d wander until they were tired and want to go to sleep.

Q. Did she discuss with you whether there was anyone outside with the children supervising them at that time, or not?

A. I had asked her, oh, so who would you be with and she said just me. Which led to conversation about routine and the importance of that for children. But she felt that that was her routine, in her words.

(names removed)

[55] I am not satisfied that when the evidence is considered as a whole and viewed in the context of the concerns identified by the CAS, that the trial judge committed palpable and overriding error in finding that there were no set routines in the mother’s house. It is not reasonable to isolate that statement without considering the context of the analysis being conducted by the trial judge.

Issue: The Developmental Delays experienced by the Children Improved once placed in Care

Trial Judge’s Reasons

The children exhibit behavioural difficulties and delayed development. While in the care of the mother they both screamed. J. had a flat effect. They lagged in the development of language skills. They suffered from frequent diarrhoea. They were often absent from daycare. They behaved as though underfed. They both showed self-stimulating or masturbatory behaviour. The mother viewed the actions of the daycare sending the children home because of diarrhoea as picking on her children.

All of the concerns improved after the children came into care. The children had clean clothing, and were themselves clean. They no longer appeared hungry or ate off other persons plates. There was no more diarrhoea. J. continued some masturbating behaviour, but S. did not. Both children became very verbal and will start conversations with others. Janice Mason observed that both children have significantly advanced in all areas of their development.

The children have a sensory and developmental consultant, a speech and language pathologist and both physio and occupational therapists. Both children required special routines and the daycare and one-on-one assistance to deal with their behaviour. J. now has an individual education plan at school, again has one-on-one assistance in the classroom. Although they have both improved greatly, they will continue to require services in the future.

There is clear evidence that when the children were in the care of the parents, and of the mother alone, both children had developmental delays, research and language delays and motor skills and behaviour problems. When admitted to care both children were anxious. J. engaged in head banging.

This evidence demonstrates that both children made significant gains after coming into care which continued over time. Both children are receiving therapy to deal with the emotional harm they have sustained. J. was diagnosed with autism before coming into care, he has progressed so far so fast that the diagnosis is now being questioned.

(names removed)

[56] The appellants submit that the only significant change to being placed in care was the cleanliness of their hair and clothing. The appellant argues that since the children were only 2 and 3 years of age when they were placed in care, any advances in their ability to communicate, control impulses and socialize would be expected in the three years that followed as a result of normal advances in development.

[57] The appellants submit that the learned trial judge made a palpable and overriding error in finding that the developmental delay dramatically improved once placed in care. In support of that position they point to the following:

• Bruce Fleming testified that the children already “appeared to be much better” when living at the Zhaanwanog Shelter, even though they were still in mother’s care.

• Janice Mason testified that she observed a change over time - it probably took a full year of just gradually noticing a change in behaviour - “it was in such small increments that you didn’t notice until suddenly, it was greatly reduced.”

• The evidence showed that the children, particularly J. Jr., are special needs children and their placement in care has not significantly changed that.

• Janice Mason testified J. Jr. will “still yell out”. There was no change in J. Jr. self-stimulating.

• Both children still required ongoing assistance for quite a while.

• A psycho-development assessment in 2010 confirmed J. Jr.’s diagnosis with Autism Spectrum Disorder with continued issues requiring therapy and medication management.

[58] The OCL and CAS take a completely opposite position on this issue. They submit that the evidence is uncontroverted and confirmed by the parents themselves. The OCL and CAS submit that the evidentiary foundation relied on by the trial judge to make his findings came from the testimony of four professional witnesses:

Mark Heathfield - the Child Protection Worker who worked with the family since 2007;

Bonnie Mason of ACYPS and Band Representative for the Saugeen First Nation;

Janice Mason, daycare supervisor;

Susan Sahler - Family resource worker with the CAS.

[59] He also relied on the testimony of the mother and father.

J. Sr.

Q. Now after the children came into care, did you notice any changes?

A. He’s more - better. He’s talking more and he’s using his words and he’s using his sentences. He’s making it clearer.

Q. What about the yelling?

A. To tell you the truth I’ve never heard him holler for a long time now. So I imagine he’s getting help.

Q. And what about S.? Have you noticed any change in her?

A. Yeah. She’s getting more questions in too and her motor skills are developed too and little bit better.

D. J. (mother)

Q. There’s been a number of witnesses - I’ll just take that back from you, who’ve given evidence and that would include Mr. Heathfield, Ms. Sahler, Ms. Mason and that the children - Ms. O.R., that the children made a very quick and, and very surprising improvement in pretty well all areas: their speech, behaviour, gross and small motor control when they came into care. Did you observe that? That there was a significant improvement in how the children were doing after they came into care over a very short period of time that that that happened?

A. Yes, I witnessed that.

Mark Heathfield

… The children didn’t do better, they did spectacularly better, and this was, this was very much a surprise to all of us working with the family, which was now three staff from the Children’s Aid Society designated to work with the family. The transformation in the children’s behaviour, language development, social development, the emergence of meaningful, parallel play happened so quickly that it was quite striking for all of us to witness.

Bonnie Mason

Q. And now do you recall the discussion in paragraph 85 that there was a spectacular improvement in the children since they had come into care and that was the reason he question, in questioning the diagnosis of autism?

A. Correct.

Q. Did you observe that yourself, having seen the children before they came into care? Did you have an opportunity to see them after they were in care, and did you notice any difference?

A. Yes, I did.

Q. What did you notice?

A. I did notice a big improvement with regards to both S. and J..

Sue Sahler

… After they came into care each time I saw them for an access visit their development, their language blossomed and so did - D. had commented on it each time and still does to this day how well they’re doing.

(names removed)

[60] I am not satisfied on the basis of the evidentiary record before him that the learned trial judge made a palpable and overriding error in finding that all of the concerns and issues relating to the children improved after the children came into care. On the testimony he heard from the witnesses, including the parents themselves, it was open to him to make the findings he did.

Issue: Slivers in J. Jr.’s Side

Trial Judge’s Reasons:

J. did suffer physical harm by having two wood slivers inserted in his body cavity and by the surgery to remove them. It appears that the slivers were inserted while J. was in the parent’s care. His parents claim to have no knowledge of the splinters. There is no evidence as to how they got there. I cannot accept that J. made no complaint about them or that the parents would not have seen entry injuries when bathing or changing him and in my opinion, it is probable that the slivers entered J.’s body as a result of the parents’ failure to supervise or protect the child adequately.

(names removed)

[61] The appellants submit that on the basis of the evidence that was before him, it was simply not open for the trial judge to conclude that the slivers came to be in J. Jr.’s torso before he was taken into care. The appellant argues that it is equally plausible that they were the result of an injury suffered after the children were taken into care. The slivers were found six weeks after the children were taken into care.

[62] The appellant submits that at the time of the discovery of the slivers, J. Jr. was pre-verbal and prone to shrieking for no apparent reason. It is entirely plausible that whenever the slivers went into J. Jr.’s side, he was not able to communicate the source of his discomfort, if any, to any of his caregivers, whether it was the mother or the foster parents.

[63] The OCL and CAS submit that Mark Heathfield’s concern was that the parents had no recollection of the child ever having this occur. He considered that a potential risk of neglect. Mark Heathfield testified as follows:

And the second one concerned the report of the pathologist concerned with the objects found inside the chest cavity of J.. And my concern there was not necessarily that they were inflicted by the parents. My concern was that the parents had no recollection of there having been even a wound in the area, which would indicate that bathing - baby or whenever that infection on entry happened, we would’ve expected that the parents would’ve recalled that the baby was even uncomfortable about it, so I thought that justified indicating potential risk for neglect.

(names removed)

[64] I agree with the position of the OCL and CAS. Considering the evidence of parenting and the conditions of the home while the children lived with their parents and subsequently their mother, it is not an unreasonable inference that this incident occurred while the children were in their care. It was open to the trial judge to make this finding when the totality of the evidence relating to the care of the children and the conditions of the home is considered.

[65] I am not satisfied the trial judge made a palpable and overriding error with his finding on this issue.

Issue: Ms. J. and Mr. E. intended to re-unite in order to jointly parent the children despite a continued separation for over three years

Trial Judge’s Reasons:

The parents’ relationship has been both verbally confrontational and physically abusive. Each parent has assaulted the other more than once. Despite the violence and conflict, the mother appears unable to separate from the father, even when required to do so by her agreement or court order. She has continued a sexual relationship with him during this trial, staying in a motel with him. The mother’s evidence was that she wanted to divorce him but has taken no steps to do so. She later gave evidence that she did not want a divorce and that she wanted to reconcile with the father so they could parent the children together. This was the father’s wish as well.

I do not believe they will follow through with the mother’s proffered intention to live separately. The mother appears ambivalent and the father does not want that. The only thing that is keeping them apart may well be the negative impact which cohabitation might have on their positions in this trial.

[66] The appellant submits this finding was in error for the following reasons:

• The parents had separated permanently in February 2008.

• Mother has started a new relationship of some two years.

• Mother has maintained her separation from father for over three years notwithstanding one night spent together during the trial.

[67] The OCL and CAS submit that the trial judge’s finding was supported by the following evidence:

D. J. and J. E. Sr. intended to re-unite in order to jointly parent the children: There was ample evidence of domestic violence between the parents, often in the presence of the children. The underlying concern was not only D. J.’s inability to separate from J. E. Sr. but her ability to make good relationship choices and put her children’s needs ahead of her relationship. The basis for the trial Judge’s finding included:

despite the violence and conflict in the relationship, the mother was unable to separate from the father, even when required to do so by agreement or court order;

the mother and father continued a sexual relationship throughout the trial;

the mother gave inconsistent testimony on whether she wanted to divorce the father, and stated at one point that she wished to reconcile with him so they could parent the children together; and

the mother grew up in a house with alcoholism and substance abuse, domestic violence and incest. She was sexually abused by an uncle, who was charged and convicted. She has struggled with anxiety and depression and with making choices that were in her children’s interests. For example, over Christmas 2008, she chose to place her children in care rather than asking J. E. Sr. to leave her home.

[68] The mother in her own testimony confirmed that she and the father maintained intimate contact during the trial:

Q. And I understand that when J., Mr. E. Sr. is attending the trial here, he often stays over in Hanover, does he not?

A. Yes, he does.

Q. He gets a motel room there?

A. Yes.

Q. And do I understand that you’ve been staying with him at the motel as well?

A. Yes, I spend a night or two during the trial with him.

Q. A night or two each week?

A. Whenever he’s there.

Q. So whenever the opportunity presents itself the two of you stay together in the motel that he gets in Hanover, correct?

A. That’s correct.

Q. And are the two of you continuing to engage in sexual relations?

A. Yes.

(names removed)

[69] I am satisfied that it was open to the judge to make the findings he did and not accept or be very sceptical about the mother’s intentions as it related to re-uniting with the father. Considering the testimony in this area as a whole I am not satisfied the learned trial judge made a palpable and overriding error.

Issue: Mother’s alleged bias against white people despite the context within which the comments regarding Society personnel were made

Trial Judge’s Reasons:

The family has been involved with the two CAS’s for years. They have been fortunate to deal with very few CAS workers over the period while they say that they have had a good working relationship with their workers, both parents have expressed their dislike and distrust of the workers and of the CAS. The mother is openly biased against white people, and has made a derogatory [comment] describing an Indian ACYPS worker a white worker with a brown face. The mother admits that the care has done some good, that the children have improved in virtually every way, but still resents the CAS. She has stated that she will not co-operate with the CAS in the future and they reversed their positions, which came to depend on who asks the questions. She has said that everything would be fine if the CAS just left her and her children alone. While those feelings are understandable, they do not indicate a good working relationship in the future.

[70] The appellants’ position on this issue is set out in paragraphs 69 to 71 of the Factum of the Chippewas of Saugeen First Nation as follows:

While not necessarily appropriate or sensitive, the use of the term “white” to refer to the non-Aboriginal, Canadian majority (excepting visible minorities) is widespread in academic, policy and legal discourse. It does not necessarily, and should not be assumed, to reflect a bias against persons of European ancestry, any more than referring to Ms. J., an Anishinabek person, as “Native”, “Indian”, “Aboriginal”, “Indigenous” or “First Nations” can be assumed to reflect a bias against Ms. J..

Ms. J.’s use of the phrase “white” people should be juxtaposed against the frequent references to her and her children as Indians or Native through the trial judge’s decision, the court proceedings, and the Child and Family Services Act.

Ms. J.’s main contact with people outside the Saugeen community is with Society personnel, all of whom are non-Aboriginal, and all of whom are “white”. At the time she made the statement, “white” people working for the Society had taken her children from her, promising their return if she and Mr. E. separated permanently, and then reneged on that promise. Society workers had confounded her access to the children, criticized every aspect of her parenting and personal development, and were seeking to have her children adopted to a “white” family with no access to her or their father, or their respective families.

(names removed)

[71] The OCL and CAS submit that the evidence on this point related primarily to the mother’s inability to work co-operatively with the CAS and other service providers, regardless of race. They argue that on the basis of the evidence it was reasonable for the trial judge to conclude that the mother experienced difficulty in this area.

[72] It is my view that the trial judge’s conclusion and finding that the mother is openly biased against white people was an unnecessary statement. When that statement is read within the context of the concerns being articulated by the judge relating to the mother’s difficulties in working with and co-operating with CAS and others, the main thrust of what he was saying related to the mother’s inability to work with CAS.

[73] In their factum, the Chippewas of Saugeen First Nation references the report of Dr. Ana Bodnar describing the troubling history of Aboriginal peoples’ experience with both child welfare agencies and residential school. At trial, the First Nation introduced the report on the consent of all parties.

[74] In her report she deals with this troubled history and describes the equally troubling contemporary consequences of those histories and in particular the difficulties experienced with Aboriginal children adopted into non-Aboriginal homes. I will deal further with this issue later in these reasons.

Issue: Relying on Courtroom demeanour and conduct to evaluate credibility and ability to parent

Trial Judge’s Reasons:

The father has received counselling for his constant abuse and anger issues. He required his counsellor to constantly sit beside him in the courtroom as a support during the trial. However, his anger and distress resulted in emotional scenes, angry interruptions and abrupt departures from the courtroom. The mother’s behaviour was similar. Both were often overcome by emotion, requiring a recess. Both struggled to attend court on time and were often late returning after a recess. The trial was understandably very stressful for them and their upset was understandable. However, I have never observed this behaviour to access as frequently or over so long a period. In my view, this is indicative of the parents’ reaction to stress and is routine.

[75] The appellants submit that the courtroom behaviour was not relevant to the material issue of the parents’ capacity to parent and whether the children are in need of protection.

[76] The appellants argue that with these types of court proceedings, a parent who faces losing their children, the conduct of the parents was not unreasonable and the trial judge should not have relied on it.

[77] The OCL and CAS submit that the trial judge was entitled to take those observations into account.

[78] In [F.A.W. v. Children’s Aid Society of Halifax [1986] N.S.J. No. 449 (NSCC)] the court noted the following at para. 7, in part:

…the distinct advantage denied appeal court judges of seeing and hearing the witnesses; of observing their demeanor and conduct, hearing their nuances of speech and subtlety of expression and generally is presented with those intangibles that so often must be weighed in determining whether or not a witness is truthful. These are the matters that are not capable of reflection in the written record and it is because of such factors that save strong and cogent reasons appellate tribunals are not justified in reversing a finding of credibility made by a trial judge.

[79] In Housen the court stated the following at paras. 14 and 18, in part:

…Similarly, the trial judge has also been exposed to the entire case. The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow…

The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected.

[80] I agree with the position of the OCL and CAS. This trial lasted 29 days. The trial judge heard a considerable amount of evidence. The trial judge acknowledged that the case was understandably upsetting to the parents. However, I agree with the OCL’s characterization of the trial judge’s comments. He did not rely solely on the conduct and demeanour of the parents in the courtroom in assessing their reactions to stress but made those observations within the context of all of the evidence relating to their ability to cope with stress, such as avoiding service providers, missing access visits, inappropriate conduct towards supervisors. Bruce Fleming noted that the mother was often overwhelmed, stressed, crying, shaky, frustrated and angry. The OCL and CAS submit that the parents’ demeanour in the courtroom supported by other evidence was indicative, not determinative, of the parents’ reaction to stress. I agree.

Issue: Did the trial judge err in finding Crown Wardship with no access to be the least restrictive alternative

[81] The appellants submit that the onus is on the CAS to prove the less disruptive alternatives to Crown Wardship would not protect the children. The appellants make reference to the decision in L. (R.) v. Children’s Aid Society of Metropolitan Toronto. At para. 25, the court sets out the following:

In an unreported decision in Children’s Aid Society of the Peel Region v. Dianna K. and Stephen K. (1991), 28 A.C.W.S. (3d) 572, [1991] W.D.F.L. 1066, [1991] O.J. No. 1375, 1991 Cars­well­Ont 1460 (Ont. Gen. Div.), Justice Victor Paisley declined to stay the trial judge’s judgment to return the child to her parents pending appeal. At page 6 [of the typescript], he quoted from the trial judge’s decision [at (1991), 25 A.C.W.S. (3d) 301, [1991] W.D.F.L. 264, 4 O.F.L.R. 121, [1991] O.J. No. 159, 1991 Cars­well­Ont 1468 (Ont. Prov. Div.) per Provincial Judge Nasmith] as follows:

Before an order can be made here that removes Emily from her birth parents or either one of them, I must be satisfied that less restrictive alternatives would be inadequate to protect her. The agency seems to have gone straight to the idea of adoption from the outset. Less intrusive methods were neither attempted nor refused.

He continued to quote on page 8 [of the typescript]:

Subsection 53(3) of the Child and Family Services Act is like a presumption against the state’s removal of children from their biological homes. The presumption must be overcome before the foster home is compared for advantages as a permanent placement . . . we are directed to include in our considerations about “best interests” those common-sense items listed in subsection 37(3). For our present purposes, the expression has a usage that helps to distinguish making placement choices on a level field, on the one hand, and overcoming rights and prerequisites and presumptions and special onuses, on the other hand. It is only after getting over a prerequisite to the state’s placement of children outside their birth homes that one starts placing children here and there on a pure “best interests” approach. In this sense, the child’s “best interests” can be said to be the paramount, or even the sole, consideration in placement choices once, but not before, this initial justification for a wardship disposition (removal) is established at trial. Subsection 53(3) of the Child and Family Services Act is both specific and clear.

At page 9 [of the typescript], Justice Paisley stated:

I agree with the judge’s reasoning. I think he is right.

[82] The appellants submit further that the court must consider whether the CAS has given the parents an opportunity to parent by providing guidance, counselling and other services to the family for the protection of the children before a child is removed the home. The appellants referred the court to the decision in [Children’s Aid Society of Toronto v. R.G.]. The following paragraphs are relevant and informative:

[59] The statute governing these proceedings is the Child and Family Services Act. In any analysis, first and foremost, there must be consideration of the paramount purpose of the Act, which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purposes, the Act is also designed to support the autonomy and integrity of the family unit and to recognize that, whenever possible, children’s services should be provided in a manner that respects the children’s need for continuity of care and for stable family relationships [subsections 1(1) and 1(2) of the Act].

[60] The Act requires the court to consider the least disruptive alternative that will adequately protect the child [paragraph 1(2)¶2 and subsection 57(3)].

[61] In balancing the best interests of the child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parent’s parenting ability. See Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M., supra.

[64] It should further be noted that the society has a statutory duty to try to provide services to assist the family before a child is removed from the home. The society is required, among other things, to provide services to assist the family before a child is removed from the home. The society is required, among other things, to provide guidance, counselling and other services to families for protecting the children or for the prevention of circumstances requiring the protection of children [clause 15(3)(c) of the Act].

[66] A Crown wardship order is probably the most profound order that a court can make. The judge must exercise this only with the highest degree of caution, only on the basis of compelling evidence and only after a careful examination of possible alternative remedies. See Children’s Aid Society of Hamilton v. M.A.M., D.L. and M.M. (2003), 121 A.C.W.S. (3d) 889, 16 O.F.L.R. 235, [2003] O.J. No. 1274, 2003 Cars­well­Ont 1122 (Ont. Fam. Ct.).

[67] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. They must be examined from the child’s perspective. See Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M., supra.

[68] Consideration should be given whether the society has given the parent an opportunity to parent. Where the society frustrates contact with the parent and offers no services, this consideration must come into the equation. See Children and Family Services for York Region v. A.W. and M.M. (2003), 121 A.C.W.S. (3d) 299, [2003] O.J. No. 996, 2003 Cars­well­Ont 936 (Ont. Fam. Ct.); Catholic children’s Aid Society of Metropolitan Toronto v. Pier Angelii M., supra; and Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. C.K. and C.C. (2001), 102 A.C.W.S. (3d) 1107, [2001] O.J. No. 128, 2001 Cars­well­Ont 219 (Ont. Fam. Ct.).

[69] The issue is not whether the children will be better off with parents other than natural parents. If that was the criterion for a protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned are receiving a level of parenting care that is below the minimum standard tolerated in our community. See Saskatchewan Minister of Social Services v. S.E. and E.E., reflex, [1992] 5 W.W.R. 289, 41 R.F.L. (3d) 405, [1992] S.J. No. 375, 1992 Cars­well­Sask 327 (Sask. QB).

[83] The appellants submit that the resources provided to the foster placements were never provided or even offered to the mother. The appellants submit further that the CAS and the court failed to recognize the uniqueness of Indian and Native culture. The parents were the only parties who could offer a continuing tie to this community and culture.

[84] The OCL and CAS submit that the trial judge did properly consider the best interests of the children in determining that in the circumstances of this case a Crown Wardship order with no access was the appropriate and necessary order.

[85] The OCL and CAS state that the trial judge found the children to be in need of protection under six sub-sections of s. 37(2) of the CFSA. None of the appellants appeal the finding that the children were in need of protection.

[86] The OCL and CAS argue that the disposition of Crown Wardship with no access was reasonable for the following reason:

(a) Developmental Stages of the Children

[87] The appellants did not call expert evidence on the development stages of the children before and after they came into care, nor did they request an assessment pursuant to section 54(1) of the CFSA. The trial judge properly relied on the best evidence he had which was comprised of the observations of the service providers and child protection workers and the parents themselves.

(b) Continuity of Care and Relationship with Parents

[88] The trial judge was aware of the potential for the current foster placement to breakdown. The OCL and CAS state that the trial judge did not find that the children’s needs were better served by these particular foster parents, but that the children’s interests required that they remain in care.

[89] The OCL and CAS submit further that the trial judge did not deny the positive aspects of the children’s relationship to their parents, that is “the children are emotionally tied to their parents”.

[90] The OCL and CAS argue that the trial judge properly balanced this aspect of the analysis against the concerns demonstrated in the evidence as a whole that the parents were unable to parent the children and a return to the parents would inevitably result in failure and re-apprehension.

(c) Cultural Identity

[91] The OCL and CAS submit that the trial judge sets out in his reasons the efforts made to consider and promote the children’s cultural heritage. The trial judge properly balanced the importance of cultural contact against the child protection provisions of the CFSA.

[92] The parents and the Saugeen First Nation led no evidence to assist on this issue.

[93] Efforts were made to maintain the children’s connection to the First Nation community. The trial judge specifically acknowledged the CFSA mandate to consider a child’s cultural background. At trial the evidence was that the CAS would promote the children’s heritage through openness agreements with the Saugeen First Nation and the parents if appropriate.

[94] In their factum, the Saugeen First Nation address the cultural issue further. At trial the First Nation filed the report of Dr. Ana Bodnar, with the consent of all parties. Dr. Bodnar outlined the deleterious effects of a residential school on families and communities, particularly with respect to parenting. Dr. Bodnar described the experience of Aboriginal children taken from their families and communities as part of the “Sixties Scoop”.

[95] Dr. Bodnar reviewed the statistical breakdown of adoptions of aboriginal children to non-aboriginal families. The explanations for such high rates of adoption breakdown (50% to 95%) are:

• inability of adoptive parents to teach children to cope with discrimination;

• difficulty or failure of adoptive families to provide a template/role models for development of children’s identities as Aboriginal people.

Trial Judge’s Reasons:

The Board had filed (Ex #24) a “Research Document” of the papers, prepared for the purpose of this trial by Dr. A. Bodnar dated Mar 22, 2010. This was submitted on consent and Dr. Bodnar was qualified as an expert in the areas covered by the document. She did not give evidence, again on consent.

Dr. Bodnar found in the document that the negative impact which the residential schools have had on Aboriginal parenting is inter-generational. In this case, the maternal grandmother may have attended a residential school. The poor parenting skills in this case, are there, at least in part caused by the residential schools experience.

Counsel for the Band submitted, on the basis of the document, that the successful protection of children and support by the CAS of First Nations families requires both a screening of the family and specific support by CAS of First Nations families and intervention intended to ameliorate the effects of residential schooling. However, Bonnie Mason, the acting Director of ACYPS, a witness called by the Board, gave evidence that the Board should do the screening, which fit the above descriptions of the support and intervention described in the document.

Thus, if the mother’s parenting deficit have been caused by the residential schools, they have not been specifically identified or addressed.

Sec 37(3)3. “The child’s cultural background”. The children are members of the Chippewas of Saugeen First Nation - they have Indian Status. While in the care of both parents or of the mother alone, the children were taught about their native heritage, and participated in cultural activities on the reserve. Those efforts failed, despite 2 family group conference convened by the CAP, involving both bands. The CAS intends to foster the children’s heritage by openness agreements with the parents and the Band. The prospective adopting parents with whom the children are now living with widen the agreements and will continue to expand the children’s connections to their heritage.

The plan of the CAS is to have the children adopted by their present foster parents. The capable of parenting the children and meeting their needs. Openness agreements with the parents and the Band will maintain their cultural heritage. The plan of the mother and the Band is to have the children returned to the care of the mother under CAS supervision for 12 months. The father would certainly have access under this plan. Whether ordered or not, however their past difficulties with anger, conflict to violence, and the father’s additions and mental health issues, this plan would place the children in a situation of parental conflict, in my view the father is likely to move in with the mother to parent the children jointly. Both parents have said this is what they want, given the very high needs of the children and the parents own continuing issues, in my opinion their plan is not feasible. Placing the children on an experimental basis will totally result as it did in 2008.

[96] I agree with the position of the OCL and CAS. The evidentiary record demonstrates that while in care, the children had continued exposure to their heritage at Saugeen First Nations. For example in her cross-examination Janice Mason stated the following:

…it’s general, the culture of the daycare, the fabric of the daycare is made up of, of folks from Saugeen. Myself and one other staff excluded, everyone else in employment at the centre are Saugeen membership. They bring their own cultural and community expertise to the centre.

Q. … and could you elaborate a little bit on that? As opposed to a daycare that didn’t service a First Nation, wasn’t located on a First Nation, what types of activities or instruction would - have you observed on the part of your staff that integrated, specifically, Anishnabek culture?

A. Singing in the language.

Q. And when you say “language” is that Anishawbemowin language?

A. Yes, Ojibwa language in English, yes. Music, drum music played from a a variety of First Nation cultures that we, we have flute music that plays as well. We have a number of CD’s. We most recently have acquired some language CD’s that have played. It’s just folks talking in the Ojibwa language, so, substituting for real people talking in the language we have some of that to occur in the language as well. Culture and traditions - on staff I have a Jingle Dress dancer for instance who incorporated a mini powwow most recently in the summer for the children, so, the music and the dance. Community walks and familiarity with the community, the home from which the children have come - just real familiarity in that close-knit sense of the First Nation community. We know one and other. We’re aunties and uncles to one and other and the caring that goes on. It’s very much a part of the centre as well.

[97] The CAS were prepared to consider plans from either First Nation who would be interested in adoption but none was available or put forward. The evidence at trial demonstrated that efforts were made to locate a placement for the children within their own culture, including participation in Family Group Conferences which included Band members, attempts by the parents and others and to locate possible First Nations placements and investigation of a foster home called Eagle’s Nest which dealt with First Nations foster placements.

[98] I am satisfied that the evidence establishes that the CAS’s plan did recognize the cultural heritage of the children. I am also satisfied that the trial judge properly considered the Native status of the children. On the record before him it was open to him to make the findings he did and to give the appropriate weight to the evidence on that issue. The allocation of the weight to be afforded to the issue was within the discretion of the trial judge having heard all of the evidence during a 29 day trial. That assessment of the evidence and weight to be assigned to it should not be disturbed on appeal and deference is owed to the trial judge.

[99] I am satisfied that the trial judge, faced with a difficult task indeed, properly balanced the very important aspect of promoting and maintaining cultural contact against the provisions of the CFSA. Deference is owed to the trial judge who heard all of the evidence and saw the witness testify over a lengthy 29 day trial.

[100] The appellants submit that the evidentiary foundation that an adoption would take place was never a firm option nor did it ever materialize. They argue that an adoptive home never did exist and that by relying on the fact that it did, the learned trial judge made an error, which error was the result of misleading information put forward by the CAS. The learned trial judge relied on erroneous information.

[101] The OCL and CAS respond to this submission and allegation that it is not true that the CAS deceived the trial judge. At the time of trial the adoption plan in the H. home was in place. After the trial and prior to the release of the trial decision that plan was no longer available.

[102] On this issue it is important to keep in mind the chronology of events that took place with respect to the placements.

[103] The L.R.’ home was not a permanent home so the CAS moved the children to be with the H. on May 11, 2010. The H. had indicated a desire to care for J. Jr. and S. on a long term basis and this placement was a foster placement with a view to adoption placement.

[104] Unfortunately, the H. placement broke down for J. Jr. on December 22, 2010 after seven months and he was moved to the home of D.C. and her husband C.G.. J. Jr. was familiar with this family because he had been going there for relief visits. J. Jr. has remained in D.C.’s home since then.

[105] S. remained with the H. until March 21, 2011 when she returned to O.R. and L.R. and has been there since then.

[106] The OCL submits that unfortunately, the H. family turned out not to be a good fit for J. Jr. and S.. Both children struggled when they were removed from the L.R.’ and placed with the H..

[107] I cannot agree with the appellants that this factor was the critical factor that would have tipped the scale away from a Crown Wardship order with no access.

[108] In any event there was evidence before the learned trial judge with respect to the CAS plans should the H. not pursue the adoption of the children. Ms. Riggin testified on this point as follows:

Q. Ms Riggin, I’m going to turn your mind to I suppose another potential here, and that is if the court were to grant the Children’s Aid Society request for crown wardship, no access, that this family that you have told us about does not pursue the adoption of these two children. What process would the agency follow then to implementing its plan?

A. We would continue to look within our own Society. We would start looking without, without neighbours which would be Grey, Huron Perth and actually in the Southwest Region of which we are a part to see if there is an appropriate home who can, who can meet the children’s needs. If that doesn’t occur we look on a more provincial level. There is an Adopt Ontario website and the children aren’t named but they’re like a profiling kind of thing and then we would pursue anybody who would be interested in that. There is the adoption resource exchange where we can use our mechanism.

[109] It is important to look at that evidence within the context of all of the evidence that was before him.

[110] The only plan the mother put forward at trial was that the children be returned to her. Although the CAS attempted to identify a First Nation family nothing was proposed by any of the parties that could reasonably be considered. Efforts were made by CAS to address the cultural issues in this case. The CAS was working with the First Nations but nothing was available to accommodate J. Jr. and S. As I indicated the only plan put forward by mother, father and Saugeen was a return of the children to mother, an option the learned trial judge could not endorse on the record before him.

[111] I am satisfied that the trial judge’s reasons set out the circumstances and reasons why he determined that it was in the best interests of the children to order Crown Wardship. In his reasons he references section 37(3) and that section 37(3) sets out the circumstances of the case which he must consider in determining the best interests of the children. He then proceeds to deal with subsections (1) to (13). I am satisfied that it was open to him on the evidentiary record to find that it was in their best interests that they be made Crown wards with no access.

Issue: Ineffective Assistance of counsel for the mother at trial

Trial Judge’s Reasons:

On May 6/10, after 18 days, the trial was interrupted when the mother, while being re-examined by her then counsel, Ms. B. Grewal made accusations of what I consider to be unethical and improper conduct. In my opinion, whether the accusations were true or false, Mr. Grewal was unable to continue as the mother’s counsel, although I did not believe them.

On May 25/10 Ms. Grewal brought a motion, which was unopposed to be removed as solicitor of record for the mother on the grounds that communication had broken down and she was unable to receive further instructions. The Order was granted.

On June 14/10, Mr. Pe. Harrison appeared on the record for the mother and stated he was prepared to continue the trial.

On July 6/10 Mr. Harrison filed an Amended Answer and Plan of Care on Consent.

In his written submissions, Mr. Harrison submits that a mistrial should be granted on grounds that:

“During the course of the trial .. it came clear to (the mother) that Mr. Grewal was not managing to portray her (the mother) best interests to the Court. As a result (the mother) terminated her relationship with Mr. Grewal.”

There is no evidence, other than statements made by Mr. Harrison which are inadmissible (and if they were, he would have to get off the record as he is both counsel and witness in the same matter) of the mother’s instructions.

The mother stated during her outburst on May 6/10 that “she had not been given a chance”, I do not understand this statement after 18 days of trial. The mother had counsel throughout. If she is now dissatisfied with Ms. Grewal’s performance, has remedies elsewhere.

Mr. Harrison also submits that his failure to obtain medical records should result in a mistrial. He had from May 7/10 to July 20/10 to review Ms. Grewal’s files and the transcripts and court filings. He could have subpoenaed any missing medical records or obtained an order to produce against a third party. He did not. Any relevant medical records had already been produced to Ms. Grewal by the CAS, and full disclosure made to her. This was available to Mr. Harrison. This issue was not raised until Mr. Harrison requested mediate records in his fresh Answer. The CAS informed him of their position and made submissions to the Court. I declined to order the CAS to produce medical records which were not in the possession or control of the CAS.

In my view, the issues raised by Mr. Harrison, while they may be grounds for appeal, are not grounds for a mistrial. I will not declare one or make the Order sought.

[112] The mother alleges the following factors:

(1) There were occasions when the mother’s counsel failed to attend important parts of the trial because she was in another court or delayed.

(2) There were occasions where counsel appeared unprepared and unaware of the issues and the evidence.

(3) Her counsel drafted an Answer and Plan that conceded some facts alleged by the Society with which the mother disagreed.

(4) Counsel failed or refused to meet with the mother to prepare for trial.

[113] The mother submits that this ineffective representation caused a miscarriage of justice. The mother submits further that she has no other remedies available to her to secure the return of the children. Neither a lawsuit or a complaint will achieve that result. The only remedy short of allowing the appeal and returning the children to her is to order a new trial on the basis of ineffective representation. Considering the importance of the issue to the mother the cost of a second trial should not outweigh the loss of her children.

[114] The OCL and CAS submit that the mother’s claim of ineffective representation at trial cannot succeed. The mother, when asked, confirmed the contents of her Answer and Plan of Care as filed. The mother was asked whether she had reviewed it before signing it and whether she agreed with it and she confirmed that she did.

[115] The OCL and CAS state that the mother waited until 18 days into the trial before she raised a concern about counsel.

[116] The OCL and CAS point to the following factors to support their position that there was no prejudice to the mother:

(a) The mother’s position was the same as that of both the father and the Saugeen First Nation, who were competently represented by counsel. Even if there were deficiencies in mother’s counsel’s representation it had no effect on the evidence and positions put before the trial judge.

(b) The mother was asked twice, by her own lawyer and by counsel for the CAS, whether she had reviewed her Answer before signing it and both times she answered that she did. The mother only raised a concern about her counsel at the very end of her evidence.

(c) Appropriate latitude was given to the mother’s new counsel to prepare for re-examination of his client. The CAS also agreed to recall the worker and the access supervisor to allow new counsel to cross-examine them further.

[117] In R. v. Archer, [2005] O.J. No. 4348 the court sets out the following at paras. 118 and 119:

It is helpful to begin with a summary of the applicable legal principles, none of which are in dispute. An accused who is represented at trial is entitled to effective representation by counsel. Ineffective representation may result in a miscarriage of justice necessitating the quashing of the conviction on appeal. Evidence relating to the alleged ineffective assistance of counsel will be received on appeal pursuant to s. 683(1) so that the appellate court may determine whether the representation was ineffective and ultimately whether it resulted in a miscarriage of justice: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 43-44, 56-58 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; R. v. B.(L.C.) (1996), 104 C.C.C. (3d) 353 (Ont. C.A.).

An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel's acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997), 114 C.C.C. (3d) 225 at 247:

An appellate court's review of trial counsel's performance should be deferential ... deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer's performance was deficient because they would have conducted the defence differently.

[118] In D.W. v. White, [2004] O.J. No. 3441 (Ont. C.A.) the court set out the following at paras. 47 and 55:

47 The judgment of the court was rendered by Grange J.A. In his reasons, he acknowledged that the rights of the defendant had been seriously and adversely affected by the conduct of his counsel. But one of the competing rights that he identified, at p. 8, was that of the opposing litigant, who "would be forced into the trouble and expense and hazards of a new trial through absolutely no fault of its own". On the subject of incompetence of counsel, Grange J.A. said, at p. 9:

Perhaps the failure of duty -- if there was any -- can be attributed to incompetence. Certainly the court tries to protect litigants from their incompetent solicitors, but the task becomes very difficult when the incompetence is in the trial process itself because the rights of others are inevitably and inextricably involved. The trial is, of course, the culmination of the litigation process, putting the whole machinery of the law into action to determine the rights of the parties. A new trial based entirely upon a solicitor's incompetence in a civil action should be rare indeed.

55 Like Grange J.A., I would not be prepared to close the door to the viability of ineffective assistance of counsel as a ground for a new trial in a civil action. But, also like Grange J.A., I would limit the availability of that ground of appeal to the rarest of cases, such as (and these are by way of example only) cases involving some overriding public interest or cases engaging the interests of vulnerable persons like children or persons under mental disability or cases in which one party to the litigation is somehow complicit in the failure of counsel opposite to attain a reasonable standard of representation. The present action is not such a case.

[119] In R. v. G.D.B. 2000 SCC 22, [2000] 1 S.C.R. 520 (SCC) at paras. 26 and 29 the court noted:

26 The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O'Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, [page532] first, that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted.

29 In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697).

[120] I agree with the position of the OCL and CAS. The evidentiary record on this issue does not support the mother’s position that there was been a miscarriage of justice. The unified positions of the mother, the father and the First Nations were put before the trial judge. Counsel for all three of those parties were given the opportunity to cross-examine the witnesses called by the CAS. New counsel was given time to prepare and was also given the opportunity to cross-examine witnesses that had already been called. The mother was given the opportunity to provide further evidence in re-examination.

[121] The mother acknowledged in her testimony that she had reviewed her Answer and Plan before signing it and agreed to the contents.

[122] The trial was not complete and continued on for another 11 days. New counsel had an opportunity to revisit areas that the mother had concerns about as it related to her previous counsel’s representation.

[123] In all of those circumstances this ground of appeal fails. Despite the very serious nature of these proceedings involving children I cannot conclude that there has been a miscarriage of justice.

Conclusion

[124] For all of the reasons articulated the appeal is dismissed. With respect to the findings of fact made by the trial judge and considering the high standard of appellate review I am not satisfied that the trial judge committed palpable and overriding error.

[125] I cannot conclude that the findings made and inferences drawn by the trial judge were clearly wrong, unreasonable or unsupported by the evidence. When considering the best interests of the children the court must consider all of the facts and circumstances and the situation as a whole. In my view the learned trial judge did that and as I indicated he clearly took into account the various factors set out in section 37 of the CFSA.

[126] Portions of the evidence referred to by the appellants cannot be viewed in isolation. The evidence must be viewed and considered within the context of the entire evidentiary record.

[127] With respect to the application of the law and the legislative scheme of the CFSA, the standard of review is correctness. The reasons set out by the trial judge demonstrate he properly considered the relevant provisions of the CFSA and properly applied the facts to that legislative scheme.

[128] This was no doubt a difficult trial. The issue in these cases is significant and any order made has serious and significant consequences. The trial lasted 29 days. The record demonstrates that the trial process was not easy for the parents, and understandably so. As Justice Curtis so aptly stated, “No one in the family is untouched by this order, and no-one will ever be the same. It is an order that is not to be made lightly, or without careful thought and consideration regarding all the options available for the child. Crown Wardship is the capital punishment of family law.”

[129] I am satisfied that the trial judge gave careful consideration to all of the evidence and decided this case by considering what was in the best interests of the children.

[130] This analysis does not end, however, with my conclusion regarding the appeal of the trial judge’s decision. With the consent of all counsel fresh evidence was filed. It is now necessary to deal with the fresh evidence to determine whether the trial judge’s decision ought to be changed or in the alternative, to determine whether a new trial is warranted.

Fresh Evidence Filed

[131] The fresh evidence that I will be making reference to was filed with the consent of all the parties.

[132] The Saugeen First Nation filed fresh evidence in the form of two affidavits: Lauren Jones and Sandhya Chari who were both articling students at the law firm retained by Saugeen. These affidavits are sworn May 11, 2012. The documents attached to the Chari affidavit are:

• A letter dated February 15, 2012 from the CAS to Katherine Hensel, solicitor for Saugeen

• CAS case notes for J. Jr. and S.

• CAS Plans of Care for J. Jr. and S.

• CAS Social History Reports for J. Jr. and S.

[133] The fresh evidence of the CAS consists of the following three affidavits:

• Meghan Whitmore, Child Services Worker for J. Jr. from June 29, 2009 to August 25, 2011, sworn June 21, 2012

• Karin Farrow, Child Services Worker for J. Jr. and S. from August 25, 2011 to the present, sworn June 21, 2012

• Summer Kueneman, worker involved in the development of permanency plans and adoption plans for Crown wards of Bruce Grey Child and Family Services

• Affidavit of Patricia Chatham, employed in the office of Diane Barton, enclosing the following:

• Ambulatory Care of Clinical Note of Dr. Nkiru Nwebube dated June 7, 2011 re: S.

• Report Card for S.

• Individual Education Plan for S.

• Report Card for J. Jr. for June 26, 2012

• Student Achievement for Alternative Program for J. Jr. for 2011/2012

• Individual Education Program for 2010/2011

• Bonnie Mason affidavit sworn August 9, 2012

[134] The documents attached to the affidavit of Meghan Whitmore are:

• Paediatric Development Clinic Report for J. Jr. prepared by Dr. Pamela Frid, Developmental Paediatrician and Medical Director of the Thames Valley Children’s Centre dated October 20, 2010

• Occupational Therapy Consultation Report for J. Jr. prepared by Shirley Sutton, Occupational Therapist, dated October 28, 2010

[135] The document attached to the affidavit of Karin Farrow is an Attachment Assessment and Permanency Planning Report prepared by Mary-Jo Land, dated June 14, 2012.

[136] The documents attached to the affidavit of Summer Kueneman are:

• Letter from Ms. Kueneman to the Oneida First Nation dated December 7, 2011

• Letter from Ms. Kueneman to the Saugeen First nation dated December 7, 2011

[137] The mother filed a fresh affidavit sworn August 7, 2012. Her new common-law spouse, S.M., also filed an affidavit sworn August 7, 2012. The mother also filed the affidavit of Martha Roote-Skye sworn August 9, 2012.

[138] I will also be referencing the report of Mary-Jo Land, Certified Child Psychotherapist, dated June 14, 2012.

[139] The CAS and OCL submit that the fresh evidence does not disclose information that would lead to a reconsideration of Justice Bean’s decision nor does it warrant a new trial. The OCL and CAS submit that the evidence at trial regarding the parenting capacity deficits of the parents and the harm occasioned to the children was overwhelming and returning the children to the care of the parents in those circumstances is not an option the court should consider.

[140] The CAS and OCL acknowledge that there are concerns set out in the updated information that both children continue to have developmental, behavioural and cognitive difficulties. As a result of those difficulties and the significant time needed to address those issues the children have been placed in separate foster homes. The OCL and CAS submit that it is in their best interests to keep them in separate foster homes until the adoption process is completed. J. Jr. and S. have been in care for four and a half years. Both have been stable in their current placements for one and a half years for J. Jr. and three years, three months for S., with regular sibling contact.

[141] The OCL and CAS acknowledge that the mother has made changes in her life. The affidavit of the mother sworn August 7, 2012 sets out the following:

• At present she lives with her common-law husband S. M. and their infant son J.M.

• At paragraphs 3 and 4 of her affidavit the mother states:

I have met and discussed developmental issues with Valencia Anoquot, the First Nation’s home and community care worker. She has researched and made me aware of all the resources available for children with autism in Bruce and Grey Counties, which include:

Behavioural consultations from Keystone Child and Youth Services in Owen Sound;

Autism Ontario (in Toronto, but with services in Wiarton, Kincardine and Paisley), for parent counselling, support groups and information about autism;

Thames Valley Children’s Centre in Owen Sound for diagnoses, support workers, financial supports;

Childcare and child income supplements from the provincial and federal governments;

Physiotherapy and occupational therapy (Grey Bruce Health);

Northport Elementary (a local school); and

Speech and language therapy (Grey Bruce Health).

If the children are living on the reserve, the following services are also available to them:

Sports and extracurricular programming;

Mino Bimaadswin Health Services to assist in coordinating therapy, transportation and other resources;

Anishnabek Child and Youth Services afterschool and summer programming, once the children are 8 years old;

The Good Food Box, a food supplement delivery offered through the First Nation to member families;

Health Babies (parenting group and training, growth and development activities and counselling; home visits, drop-in playgroups);

Maternal Child Health Worker (at Health Services); and

Strengthening Families (a parenting program developed by the Centre for Addictions and Mental Health).

• The mother states she would access all of these services if the children are returned to her

• J.M. was born on […], 2011 at Mount Sinai Hospital in Toronto. Prior to his birth he was diagnosed with a heart defect. Once he was born he was diagnosed with Digeorge Syndrome, a cluster of birth defects which are the result of a chromosome 22 deletion

• J.M. had surgery at four months of age and further surgery in October. J.M.’s health is good although he may experience some developmental delays as a result of his condition as he grows.

• J.M. was apprehended by CAS at the age of 16 days. He was placed in foster care on November 7, 2011. J.M. was returned to his parents on November 14, 2011. On July 26, 2012 the mother consented to a supervision order for 6 months. CAS worker, Ryan Thompson, working with the parents, has not expressed any concerns about the care of J.M.

• The mother is presently residing in Southampton in a two bedroom apartment large enough to accommodate J. Jr. and S. The mother has been allocated a home by the Band in French Bay and should be completed by February 2013. It will be a four bedroom home.

[142] In her affidavit sworn August 9, 2012, Marsha Roote-Skye, Director of Anishnabek Child and Youth Prevention Services (ACYPS) at the Chippewas of Saugeen First Nation outlined the resources that will be available to the mother, which included:

• Medical support

• Special needs support

• Training and programming

• Extra-curricular activities

• Food hamper

• Clothing

• Culturally-appropriate counselling and support

• Community respite services

[143] There is no issue that the children continue to experience difficulties and require significant and constant care and supervision. The fresh affidavit material and supporting reports filed demonstrate that quite clearly.

[144] However, the evidence also establishes that both J. Jr. and S. are progressing well and their lives have been more stable on many fronts. For example in S.’s June 26, 2012 report card it states:

Strengths/Next Steps for Improvement

S. is cooperative, friendly and cheerful student who generally demonstrates a positive attitude towards learning. She has demonstrated significant academic and social growth throughout grade one. She requires frequent reminders to be attentive during lessons and to keep her body facing the right direction. With direct support she generally preservers and makes an effort in her work but when left to work independently she is distracted and off task. S. has difficulty expressing her ideas. The class decided they wanted to sing one of our favourite songs, “C-A-N-A-D-A” for the school talent show, S. did a great job making waving her flag and singing! It is very important for S. to review her sight words, read and write daily, and practice math skills in order to maintain gains made this year. Have a wonderful summer S.!

(names removed)

[145] In J. Jr.’s report card of June 26, 2012 it states:

Strengths/Next Steps for Improvement

The programming for the learning skills is recorded in the IEP and varies from the descriptors that are outlined on the Elementary Progress Report. J. Jr should be very pleased with the academic gains that he has made this year. His printing continues to show improvement and he is adding more details to illustrations. J. loves to read aloud and would benefit from visits to the Paisley public library during the summer to select new books to read at home. J. is certainly aware of the rules and routines at school but does not always follow them. He is learning to make socially acceptable choices. He continues to work on giving others personal space and asking for help in appropriate ways. It has been great to have J. in our class again this year! Enjoy your summer but remember to be safe, J.!

(names removed)

[146] In her reported dated June 14, 2012, Mary-Jo Land, Certified Child Psychotherapist and Play Therapist, Certified Dyadic Developmental Psychotherapist, Certificated Attachment Focused Therapist and Consultant, Registered Clinician with ATTACh, deals with many issues relevant to this analysis. The report of Mary-Jo Land dated June 14, 2012 is relevant and very informative. It is important to set out portions of her report in these reasons.

[147] Ms. Land details the Sources of Information she relied on at pages 1 to 3 of her report. She then reviewed the circumstances relating to J. Jr. and S. separately.

Re: J. Jr.

[148] J. Jr. lives with his foster parents, D.C. and C.. The older children of the family no longer live at home so J. Jr. is the only child in the home. J. Jr. has known D.C. and C. since June 2008 when he was almost 4 years old.

[149] The children last saw their biological mother, the appellant, in October 2010. On November 15, 2010 the children were made Crown wards with no access.

[150] Ms. Land interviewed D.C. and C.. D.C. reported that J. has made “amazing” academic progress. He was able to write all of his classmates’ names for their Valentine’s cards. He is now able to follow morning and after school routines at home and completes his homework.

[151] D.C. took extensive training in managing J.’s autism, which was very helpful to her.

Re: S.

[152] S. lives with O.R. and L.R. and with their four teenaged daughters, two of whom are adopted. S.’s experiences are similar to those of J. She was diagnosed as developmentally delayed in the areas of language, self-care, and motor skills. S. has made great developmental gains since being placed in care although she does require academic support.

[153] Ms. Land reviews her interview with O.R.. O.R. described the difficulties and challenges S. has to deal with in the areas of education, health issues, behaviour issues. O.R. believes that adoptive parents for S. would need to be very special and would need to be able to give S. what she needs in terms of affection and extra attention.

[154] The report makes the following recommendations:

(1) J. - the best permanency for J. is to remain in the care of D.C. and C. and for them to be provided with the supports they need.

[155] Ms. Land explained the rationale for this recommendation as follows:

Placement stability is essential for J. Like many children with ASD, he does not tolerate transitions or changes very well. Placement stability in foster care is highly dependent on parent commitment. D.C. and C. are highly committed to J. and this commitment is felt by them to be life-long. Both D.C. and C. were brought to tears when asked what J. might need in an adoptive parent causing them to think of him moving. Not only does this demonstrate commitment but also a deep bond to this child. Parent commitment is supported by feelings of competence and confidence. D.C. has invested in learning to parent children with ASD. She parent shim effectively and the results are demonstrable. She appears to be confident in her parenting strategies. Parenting J. can be exhausting and supports are needed to prevent burnout. Only if D.C. and C. are unwilling or unable to parent J. should he be moved to a new placement.

(names removed)

(2) S. - the best permanency option for S. is to be placed in a highly suitable adoptive home, if one can be found in the near future.

[156] Ms. Land explained the rationale for this as follows:

S. has very high needs for nurturance, adult engagement and attunement and for attention. She has an attachment to O.R. that appears to have many of the qualities of a secure attachment however, O.R. does not present as having a very strong bond with S. O.R. provides excellent care for S. and yet S. seems to be a foster child rather than a child she loves and delights in. O.R. prefers to foster younger children and is not interested in adopting S. O.R. is willing to continue parenting her but does not see S. in the family in 10 years.

(names removed)

[157] Ms. Land does not recommend that they be placed together because each child has very significant needs that require intensive parental time, energy, commitment and engagement.

[158] The final portion I wish to reproduce is at page 12:

9. What recommendations and/or considers should occur related to access/contact with natural family, including natural mom and natural dad, as well as extended family?

J. and S.: There does not appear to have been any therapeutic work done to resolve the trauma and neglect within the family of origin before or after placement. The records indicate that both the mother and the father struggled to attend all of the access visits. The children have not seen their mother or father since November 15, 2010, one and one half years ago. Because the children are intolerant of changes and transitions, and therefore need consistency and stability in their lives, I do not recommend access to any family members. I do not believe that the children would be able to manage the complex feelings and memories if they were to have access. I think that it is more important to insure success with their new families.

I recommend the children have on-going access their First Nation Bands, their culture and their heritage. I envision a mentor / elder from their band who would commit to educating both children and their foster / adoptive parents in traditional culture.

(names removed)

[159] Mary-Jo Land was cross-examined by counsel for the father on July 27, 2012 and by counsel for the Chippewas of Saugeen First Nation. I do wish to refer to portions of that cross-examination.

[160] With respect to working with aboriginal children she stated that in the course of professional training and conferences she attends there are workshops that she has taken that pertain to aboriginal children. She has worked with aboriginal children before. She has also worked with the Native CAS in Toronto. She acknowledged as well that she has not taken any specific post-graduate level courses in working with native children.

[161] Ms. Land agreed with counsel that the first option when dealing with siblings is to maintain sibling contact. The first principle is to maintain sibling contact.

[162] In further cross-examination Ms. Land acknowledged that she did not spend any time with S. and mother or with S. and father. She did not have conversations with either parent or with any representatives of their Bands.

[163] With respect to the importance of culture, Ms. Land stated the following:

So just like you’re saying, I agree with you that culture is extremely important, but I would suggest to you, and I believe very, very strongly that first of all a child needs to be attached to the human race before they’re attached to a particular aspect of the human race, and that’s what attachment is. Without being, connecting to an adult and remaining connected to an adult you’re putting the cart before the horse to say the culture comes before membership to the human race.

Q. Well we …

A. It’s an aspect of the human race.

[164] Ms. Land also emphasized that the attachment security with a parent supersedes the sibling bonds. In this case she recommends that the children not be placed in one home together. She confirmed that based on the medical and psychological needs of the children and knowing the amount of high level of skill and intervention and time required to meet those needs she stated:

It would be highly unlikely to find a parent who would be able to meet the needs of both children and likely to have two adults would are present enough to prevent each child from interfering with the attachment of the other child to the parent.

So if we’re looking at J., I don’t think J. should move, and that’s what I said in my recommendations there.

(names removed)

[165] At page 53 and 54 Ms. Land states:

So this child has experienced the loss, abandonment of her mother, repeated visits that were not attended, disappointments, needing to cut back on the amount of visits that were happening. So she has experienced that. She has experienced loss, neglect and some forms of trauma in the context of this relationship with this mother. So in order for S. to have an attachment with this mother, first of all there is a history that needs to be addressed. It’s not starting carte blanche.

(names removed)

[166] In cross-examination by counsel for Saugeen she was asked:

Q. And it’s your view that J., neither J. nor S. have significant, or as you’d call it secure or healthy attachment to their biological mother?

A. After this period of absence, no.

(names removed)

[167] With respect to the chronology of developmental changes Ms. Land sets out the following at page 68 of her cross-examination:

A. So you’re looking at the trajectory. So given the delay that the children had at the time of apprehension, so if you were to draw their trajectory their trajectory would be a low profile, a low rise. And then, and then upon coming in care, what I’m understanding from the reports from not only the CAS but the other professionals involved, is that there’s a change in trajectory, and so that the children are developing at a greater rate. That is the important piece, not of course that they would over time improve on their developmental stages. Of course they would but it’s, it’s the developmental trajectory that they’re seeing the change, and I think that that’s what, what is relevant, and that’s what I’m speaking to.

Q. So you wouldn’t agree that between the ages of three and six there’s a greater change of development than any other point in childhood?

A. No, actually, you’re actually wrong there, it’s zero to three.

Q. Sorry?

A. Zero to three is the greatest change.

[168] Ms. Land was also questioned about adoption in aboriginal families. The following exchange is relevant:

Q. And are you aware of the differences specifically with aboriginal cultures? The differences in aboriginal child welfare?

A. But again, what I’m saying to you is I’m not talking about don’t adopt these children into an aboriginal family. That’s nowhere in my report.

Q. But you haven’t recommended that these children be placed or adopted into aboriginal homes either, correct?

A. I’m recommending that they be placed into a home that can meet their needs. If that is an aboriginal home I’m quite happy to accept that. But your line of questioning is as if I’m suggesting that they shouldn’t be, and that’s not what my report says at all.

Conclusion

[169] I have not reviewed the entirety of the fresh evidence filed in these reasons.

[170] The further evidence filed by the mother does not rise to a level that results in either an order to change the existing order or to warrant a new trial. In [Children’s Aid Society of Peel (Region) v. W. (M.J.) (Ont C.A.)] Osborne, J.A. set out the following in his conclusion at paras. 92 to 99:

92 I do not think that the further evidence elevates the proposal that Margaret live with her step-grandmother, and perhaps with her grandfather, in Smithers, B.C. to a level where a new trial is required. To put it bluntly, the proposal that M. be placed in Smithers makes no sense once it is exposed to even superficial analysis. Mr. and Mrs. G., who I accept are well-intentioned, seem to have, at best, a superficial appreciation of the problems M. presents and of her profound needs.

93 The statutory provisions requiring consideration of extended family and a least restrictive placement consistent with a child's best interests are in the C.F.S.A. for a purpose and that purpose would not, in my view, be served by placing M. with Mr. and Mrs. G. They barely know M. and M. does not know them. They have not, by ongoing contact with M., set the stage for a transition from foster care in Ontario to extended family care in B.C. in any meaningful way. I note in this regard that when Mrs. G. came to Toronto in February 1994, she made no attempt to contact M. directly or through the C.A.S. In addition, Mr. and Mrs. G. have not established a less direct contact with M. through gestures such as cards and gifts at Christmas and on her birthday.

94 In addition, as I have said, the G.s' family circumstances in Smithers, B.C. are important. Mrs. G. is caring for two young boys who require almost constant attention at home and at school. I see serious potential problems in the G.s' household if M. were added to it.

95 M's needs are not in dispute. She needs one-on-one care and play therapy. She manifestly will not get either in Smithers, B.C. which is 4 1/2 hours by car from Prince George, which is the nearest city where play therapy is available. Mrs. G.'s mobility problems also weigh against the B.C. placement proposal as do the somewhat inadequate accommodations available in the G.s' trailer home.

96 Finally, there is the argument that the known is to be preferred over the unknown, that the certainty of an extended family placement in B.C. should be preferred over the uncertainty of adoption. In my opinion, this argument is fallacious. There is clear evidence that, notwithstanding her deficiencies, M. is adoptable, that is, that there are qualified parents who will seek to adopt her. Although they are nameless, there is relative certainty in the attributes that prospective adoptive parents will possess and bring to M.'s care. Ms. Abrahms makes this clear in her evidence where she stated that prospective adoptive parents will be screened to achieve a match between their qualities as parents and M.'s needs.

97 Time is important in the life of a young child. M. was five when she was first placed in care. She was six when she came to live with her foster parents Mr. and Mrs. J. She was seven when the status review hearing was held in the provincial court. She was eight when the appeal from the provincial judge's order was argued. She is now almost nine and, by virtue of the new trial order, exposed to the prospect of returning to the position she occupied when she was seven, when she was the focal point of a status review hearing. If there were to be a new trial, allowing for some time to secure a date, M.'s status will have been under review for close to 40 per cent of her life. This, although not determinative, cannot be in her best interests.

98 In result, I would allow the appeal, set aside the order that there be a new trial, and restore the order of Crown wardship without access.

99 This is not a case for costs.

[171] The appellant mother’s personal circumstances are now such that she has the obligation and responsibility, along with S.M., to raise and parent their child J.M. J.M. has special needs and will require intensive parenting with the assistance of the many resources identified by Ms. Roote- Skye in her affidavit.

[172] The plan put forward by the mother that the children be returned to her and that she is now able to care for them cannot succeed. It is not in the best interests of J. Jr. and S. that they be returned to their mother.

[173] The fresh evidence is also clear that the children have made progress in their young lives. There is no doubt that there is a lot of work yet to do. D.C. and C. and O.R. and L.R. are to be commended for their commitment and dedication to assisting J. Jr. and S. At page 5 of the report, Ms. Land notes:

Both D.C. and C. cried at the thought of J. not being with them.

[174] There is nothing before me to suggest that the appellant mother has the ability to be able to care for J. Jr. and S. In her new environment, the factual matrix of her present responsibilities would not and do not permit this to take place. It is not a viable option.

[175] J. Jr. and S. have not seen the mother or the father since October 2010, over 2 years. I agree with the OCL and CAS that the children require finality and stability so they can continue to make the progress they have made. As I indicated the fresh evidence demonstrates that there is still a lot of work to do. That work can best be accomplished by maintaining the existing order and allowing the CAS to commence and complete the adoption process. As I indicated, the children have not seen their parents since October 2010. Following the decision of Justice Bean, on November 12, 2010 the parents did not move for access for a lengthy period of time with Justice Ricchetti’s hearing the motion on September 15, 2011. Justice Ricchetti dismissed their motion for access pending the hearing of this appeal. The children have been in care since they were very young. A new trial is not in the children’s best interests. Finality and stability is absolutely critical for J. Jr. and S.

[176] It is critical as well and well recognized by everyone that the children’s aboriginal cultural heritage must be protected, maintained and promoted.

[177] I have reflected on this decision considerably. It is a decision that will affect these children for a lifetime. However, I am satisfied that proceeding in this way will permit J. Jr. and S. to grow up healthy and strong and to become productive members of their aboriginal community as well as the community at large.

[178] Counsel for the OCL in her oral arguments made the following submission:

If the children were returned home it would be an experiment that could, and in the OCL’s view likely would fail, leaving the children in a significantly worse position then they are today. If the children were to go home and the placement broke down, that they very likely would end up back in care on an emergency basis and would start the cycle of emergency and short term placements all over again.

[179] I agree with that assessment.

[180] The Crown Wardship order of Justice Bean with no access was and is the appropriate order in this case. The evidentiary record, the legislative scheme and the jurisprudence all support the order made.

[181] The fresh evidence filed fails to support the position that the existing order should be changed. The fresh evidence filed does not support an order that a new trial is warranted.

[182] For all of the reasons set out in these reasons the existing order of Crown Wardship without access is confirmed.

Fragomeni J.

Released: February 1, 2013

COURT FILE NO.: 93/10

(Walkerton)

DATE: 20130201

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF THE COUNTY OF BRUCE

• and –

D. J. (Appellant)

J. E. (Appellant)

CHIPPEWAS OF SAUGEEN FIRST NATION

ONEIDA NATION OF THE THAMES

REASONS FOR JUDGMENT

Fragomeni J.

Released: February 1, 2013