ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-19037
DATE: 20140410
IN THE MATTER OF the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended;
AND IN THE MATTER OF T.E.W. (D.O.B. […], 2010)
BETWEEN:
CAST
Applicant
– and –
S.C.-W.
Appellant
Samantha-Leigh Levenson, for the Applicant
O. Benjamin Vincents, for the Appellant
Cherry E. Isaacs-Reynolds appeared on behalf of T.E.W.’s maternal grandmother who was proposed as caregiver for T.E.W. by the mother at trial and on Appeal
HEARD: February 21, 2014
WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. Subsections 45(8) and 85(3) of the Child and Family Services Act, which deal with the consequences of failure to comply with subsection 45(8), read as follows:
45(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
85(3) A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
CZUTRIN J.:
G. CZUTRIN J.
Overview
[1] The mother of T.E.W. (born […], 2010) appeals the Crown Wardship and No Access order of Debra A. Paulseth J. (the “trial judge”) dated September 23, 2013.
[2] The trial judge released her 21-page Reasons for Judgment after a trial heard over six days in July and August 2013, and concluding on August 29, 2013.
[3] As at trial, the mother does not contest the finding that T.E.W. (the “child”) was in need of protection pursuant to s. 37(2)(b) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”). Rather, the mother appeals the trial judge’s disposition.
[4] For the reasons that follow, I dismiss the mother’s appeal.
The Mother’s Appeal
[5] The mother asks that I place the child in the care and custody of his maternal grandmother, or order a new trial.
[6] The Mother’s Notice of Appeal dated November 18, 2013 raised several grounds of appeal, including the following:
The trial judge failed to consider all the options available at law, as proposed by the mother, before making the order for Crown Wardship.
The trial judge’s “characterization of the grandmother’s involvement with the society is not supported by the evidence.”
The trial judge failed to recognize the failings of the Children’s Aid Society of Toronto (the “Society”) at the time the mother was in their care and custody “pursuant to a temporary care agreement.” The Society failed to adequately supervise the mother while in their care, resulting in criminal charges against the mother.
The trial judge failed to consider evidence that the grandmother was cooperative with the Society.
The trial judge allowed inadmissible evidence that the child’s aunt required assistance from the grandmother. It was asserted that this was hearsay evidence attributed to the aunt, who was not called at trial.
The trial judge erred in law by placing undue weight on the grandmother’s history with the Society, in light of more recent history confirming the grandmother’s cooperation with the Society.
The court made erroneous findings of fact unsupported by the evidence.
The Society failed to give the grandmother a reasonable chance to parent the child.
The trial judge misapprehended the evidence by concluding that the grandmother’s plan was “not rooted in reality because it was not permanent.”
The trial judge erred in finding that the Society met its burden “in this case.”
The trial judge erred in failing to consider the child’s wishes, particularly because the grandmother was the only constant presence.
The trial judge erred in ignoring the “child’s obvious attachment to the grandmother.”
In her factum, the mother also claimed that a Society worker had pre-judged the case by concluding that there was no support for a kinship placement by the Society’s kinship department. The mother argued that the worker made up her mind prior to undertaking the important and mandatory step of visiting the home and speaking to the grandmother.
Also in the factum, the mother alleged that a Society worker misinformed the grandmother that she could not be considered for kinship placement because she had a criminal record that required a pardon.
The trial judge misapprehended Dr. Daniel Fitzgerald’s evidence and recommendations.
The trial judge failed to consider Dr. Fitzgerald’s evidence that the grandmother was “receptive and listened to” him about the Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder issues.
The trial judge failed to consider Dr. Fitzgerald’s evidence of the importance of the child’s developed, secured attachments.
The Maternal Grandmother’s New Evidence
[7] I allowed the grandmother to introduce fresh evidence by way of an affidavit dated February 19, 2014. The fresh evidence confirmed that the grandmother was 60 years old.
[8] The grandmother deposed that, since the trial judge’s order, she sought to address a number of the issues with respect to her plan for her grandson.
[9] On January 27, 2014, she started attending Parenting Program Group Sessions (a ten-week program) as recommended to her by the Canadian Jamaican Association.
[10] In a letter dated February 18, 2014, Rev. Dr. P C-D speaks to the grandmother’s attendance, the components of the ten-week program, and the grandmother’s punctuality, cooperation, and eagerness to learn. The letter also speaks to the grandmother’s increase in “knowledge and understanding of the physical, intellectual, emotional, social and moral development of children.” Dr. P C-D asks that the child be given to the grandmother, and that the Society continue to give the necessary support to this family.
[11] The grandmother also presented a lease document for one year commencing October 1, 2013 for herself, her 17-year-old child, and her grandson.
[12] The grandmother deposed that she applied for subsidized daycare for her grandson while she is at work.
[13] A letter from a residential counselor at Rosalie Hall advised that the child’s mother is eight months pregnant and due […], 2014. The grandmother deposed that her relationship with her daughter has improved tremendously. She visits her daughter and plans to allow visits of the child and the expected sibling.
[14] The grandmother has supportive affidavits from two siblings.
The Society’s Position
[15] The Society submits that the trial judge made no error in fact or law.
[16] The Society submits that, even if I find that the trial judge made some error, I should exercise my discretion pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, and the child’s best interests to be made a Crown Ward.
[17] The Society submits the following:
The Society did not fail to assess the maternal grandmother’s plan. The trial judge heard evidence from the family service worker and the kinship worker indicating the grandmother’s extensive history with the Society.
The trial judge found that, despite the grandmother’s evidence, she never really worked with the Society and she blamed the Society for all her problems. She called the Society in a crisis and did not follow through when the crisis calmed.
The trial judge found that the grandmother felt pre-judged by the Society’s kinship department, despite evidence that the same worker had recommended in other files many family members with child welfare histories.
The trial judge found that the grandmother could not remember or denied problems unless attributable to others.
The grandmother focused on her own interests and not the child’s interests.
The trial judge relied on admissible evidence in reaching her decision.
The trial judge followed the statutory path, and applied the CFSA and s. 57 appropriately.
The child has been consistently out of the mother’s care since he was 19 months of age. He is now four years old.
The child was in the care of his great maternal aunt from September 2011 until June 2012 and has remained in the Society’s care since then.
An order pursuant to s. 57.1 of the CFSA could not cure the issues between the mother and grandmother.
The grandmother appreciated that her daughter could not parent the child, but she appeared to vacillate as to her views about her daughter as a parent.
The trial judge found that the grandmother lacked insight about her daughter.
The mother did not testify at trial.
The Trial Judgment
[18] In considering the appeal, I reviewed the trial judge’s Reasons for Judgment.
[19] At the commencement of the trial, the child was three-and-a-half years old. He had been in the Society’s care continuously since his last admission on June 21, 2012.
[20] According to para. 9 of the Reasons, at the commencement of the trial,
[C]ounsel for the mother [the same counsel who appears on this appeal] indicated that his client was only proposing a plan with her mother. Counsel advised he was consenting to a finding based on his client’s inability to care for the child. The parties were able to agree upon the subsection 37(2)(b) finding, but were unable to agree upon the factual underpinning for this finding.
[21] The trial judge heard evidence from a police officer about events on September 24, 2011. The officer observed a TTC bus driver holding the then approximately one-and-a-half year old child. The officer looked into this unusual circumstance. She described the mother’s apartment as unclean; there was a steak knife on the kitchen floor, and the fridge was almost empty except for spoiled fruit and yogurt. The officer observed the interaction between the mother and child, and between the mother and grandmother (who arrived with groceries to the mother’s apartment). The Society apprehended the child.
[22] Based on the evidence, the trial judge correctly found that the child was in need of protection pursuant to s. 37(2)(b)(i) and (ii) of the CFSA.
[23] At para. 15 of her Reasons, the trial judge outlined the disposition process and what she needed to determine based on the CFSA and the case law.
[24] Commencing at para. 16, the trial judge considered the disposition options under ss. 57(1) and 57.1 of the CFSA, and noted correctly the mother’s position in placing the child with the grandmother.
[25] The trial judge correctly concluded that not all the options under s. 57 remained available because the child had been in the Society’s care for a cumulative period of over 12 months (September 24 to 30, 2011 and since June 21, 2012). She referenced s. 70 of the CFSA.
[26] At para. 18, she correctly concluded that the only options available in this case, based on the child’s best interests, were Crown Wardship with or without access and placement with the grandmother with or without supervision.
[27] At the conclusion of the trial, the mother’s counsel proposed only a placement with the grandmother with or without supervision, but also raised Crown Wardship with access.
[28] The trial judge reviewed the “best interests” definition under s. 37(3) of the CFSA and stated at para. 20 that “Crown wardship should only be ordered as a last resort.”
[29] The trial judge noted that the court should not consider keeping a child in the Society’s care if a less disruptive alternative would protect the child. She also noted that she must consider community or other family options before Crown Wardship.
[30] Commencing at para. 22 of her Reasons, the trial judge identified the Society’s evidence, including testimony from several Society workers, a kin support worker for an aunt who had care of the child (involved from November 2011 to June 2012), a kin assessment worker, and Dr. Fitzgerald, and his psychological report of the child.
[31] Dr. Fitzgerald’s curriculum vitae and his report formed part of the Society’s Appeal Record. I had the opportunity to review them. His report arises from his examination of the child, interviews, and psychological assessment tools.
[32] The trial judge heard from the grandmother and concluded at para. 25 of her Reasons that “it is clear that she has an extensive history with the Society.” The trial judge reviewed some specific details of the grandmother’s history with the Society from 1997, 2000 to 2005, and 2007 to 2009.
[33] The trial judge then reviewed the access arrangements for the child. The child was in two different foster homes following his apprehension on September 24, 2011 until he moved to his aunt’s home on September 30, 2011.
[34] Originally, the access scheme included supervised access to the mother either with the aunt or with the grandmother. However, the aunt requested that the access be in her home. The aunt had concerns about the child’s “serious behavioural difficulties.”
[35] The trial judge concluded on the evidence that the aunt “needed support from grandmother to maintain the child and this was not forthcoming.”
[36] The child went back into the Society’s care on June 21, 2012. He was transferred to his fourth foster home on August 10, 2012. This was his ninth move since birth.
[37] The mother and grandmother raised concerns about the child’s foster care. A Society worker met with the mother and grandmother to follow up (para. 46 of the Reasons).
[38] Dr. Fitzgerald’s report and findings noted the following:
• The child has “problems with impulse control.”
• The results of a standardized measure of intelligence test indicate “overall intellectual functioning that is in the Low Average range, at the 19th percentile for Canadian children his age. This means that his ability to reason, solve problems and learn new information is equivalent to, or better than, 19% of his peers.”
• “Results on a measure of social adaptation and behavioural functioning indicate … struggles to cope with expectations of day-to-day life in his home and at his daycare. He is a very aggressive and impulsive boy who has difficulty regulating his emotions and behaviour. The test results points to high levels of hyperactivity, impulsivity and distractibility … he can respond to minor frustrations aggressively.”
• The child has a “tendency to display sexualized behaviour.”
[39] Dr. Fitzgerald provided a series of recommendations including the following:
• The child requires a close, supportive, and nurturing environment with caregivers who can respond to his needs for safety, nurturance, and empathy.
• “Use of effective behaviour management strategies by skilled behaviour specialists in the daycare will be necessary. In addition, support for the development of effective social and interpersonal skills will be important.”
• The child “is going to do best in an environment where there is a great deal of consistency and external control.”
[40] Dr. Fitzgerald testified on cross-examination that it might be beneficial to keep the grandmother in the child’s life, but he did not assess the child and grandmother together.
[41] The trial judge reviewed evidence about the mother and grandmother’s visits with the child at paras. 48 and 49 of her Reasons. While the child was always happy to see his grandmother, she often criticized the child’s clothing and tried to redress him. The grandmother examined his teeth. After grooming the child, she sat on the couch and watched him play.
[42] Starting at para. 51 of her Reasons, the trial judge reviewed the grandmother’s evidence about her relationship with the child’s mother. Much of what she said about the mother was negative. Yet, the grandmother participated in pretending that she was the mother to confirm the mother’s visits with the child.
[43] The Society planned a first visit with the child at the grandmother’s home on the condition that the mother would not have contact with the child. The grandmother allowed telephone contact with the mother on that occasion and another occasion.
[44] The grandmother’s sister expressed an interest in planning for the child, but could not as she was very busy as a pastor in her church at the time. She thought her niece might be interested, but the niece never came forward at the trial. The sister who is a pastor appears to be the same sister who provided a February 19, 2014 affidavit as part of the fresh evidence presented to me. In her affidavit, she offers no plan to care for the child but to assist her sister in several ways.
[45] The Society visited the grandmother’s home in October 2012. The grandmother lived with her then 17-year-old daughter.
[46] At para. 69 of her Reasons, the trial judge noted that the grandmother’s plan had changed by August 29, 2013. The grandmother was definitely moving but was not sure where and had no daycare information.
[47] The lease and rental application dated September 23, 2013 filed as part of the fresh evidence is dated the same day as the trial Reasons. The lease shows that the 17-year-old daughter and the child would be residing with the grandmother.
[48] The trial judge considered the mother’s counsel’s submission that the grandmother was consistently supporting the family. However, because of historic openings with the Society, she was pre-judged, particularly by the kin assessment worker. Counsel also submitted that the grandmother was not provided with the resources she needed.
[49] The trial judge found that the grandmother had a pattern of failing to follow up with resources. The trial judge found that a Society family service worker referred the mother to the Jamaican Canadian organization.
[50] At para. 76, the trial judge found that the child had very special needs when he went into the Society’s care. She referred to Dr. Fitzgerald’s recommendations:
[The child] requires constant reassurance and positive feedback. … The environment needs to be structured and consistent and secure. His daycare must be a specialized one with very skilled child care staff. His caregiver must be a constant and must be capable of connecting in a meaningful consistent manner with the resources that this child will need if he is to develop to his full potential.
[51] The trial judge then considered the grandmother’s plan. Based on her findings and Dr. Fitzgerald’s recommendations, the trial judge concluded the following at paras. 77-82:
• The grandmother’s plan “falls far short of meeting this child’s needs.”
• The grandmother did not appreciate the impact on the child of all the mother’s moves in his early months of life.
• The grandmother “did not appreciate that the chaos of this lifestyle left the child lost and unattached.”
• “She was encouraged to support her sister’s placement; but she was unable to do so. She is always drawn back to her daughter’s needs.”
• The grandmother “did not understand the importance of Dr. Fitzgerald’s recommendations.”
• The grandmother “never really worked with the Society.”
[52] In the end, when considering the child’s best interest, the child’s special needs, the grandmother’s plan, and the competing plans, the trial judge ordered Crown Wardship.
Standard of Review
[53] The appellate standard of review in cases such as this is well established. The standard of review for questions of law is correctness. The “appellate court is free to replace the opinion of the trial judge with its own”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
[54] The standard of review for questions of fact is palpable and overriding error: Housen, at para. 10. The Ontario Court of Appeal commented on the definition of “palpable and overriding error” in Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201, at paras. 296-297 and 300:
The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding.” The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254 at 281.
Housen provides a detailed analysis of the “palpable and overriding” standard of review. … the “palpable and overriding” standard applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts. This court cannot retry any aspect of this case.
[55] Questions of mixed fact and law are subject to the ‘palpable and overriding error’ standard unless it is clear that the trial judge made some error of law or principle that can be identified independent of the judge’s application of the law to the facts of the case. In these circumstances, the error of law is extricable from the questions of mixed fact and law in issue, and must be separated out and reviewed on a standard of correctness: Housen, at paras. 36-37.
[56] In the context of child protection cases, “appellate courts have a narrow scope of review because of the fact-based and discretionary nature of the decisions to be made. Appellate courts must give considerable deference to the decisions of family and child protection courts”: Children’s Aid Society of Toronto v. C. (S.A.), 2005 43289 (Ont. S.C.), at para. 12, aff’d 2007 ONCA 474, 158 A.C.W.S. (3d) 610; see also New Brunswick (Minister of Health and Community Services) v. C. (G.C.), 1988 34 (SCC), [1988] 1 S.C.R. 1073, at p. 1077.
[57] In Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 12, Bastarache J. stated that the standard of review articulated in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10-12 in regard to support issues is equally applicable in the context of child custody. That standard from Hickey is as follows:
When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges. … Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.
Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.
There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. … Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balance the factors differently.
Analysis
[58] This case is about disposition, as the mother conceded the finding that the child is in need of protection under s. 37(2)(b) of the CFSA. The mother offered no plan. She now raises questions of fact, law, and mixed fact and law.
[59] The mother has failed to satisfy me that the trial judge’s findings of fact contain palpable or overriding errors. The trial judge heard evidence, considered issues of credibility, and made factual findings mainly related to the competing evidence from the grandmother and the Society’s witnesses. I find that there was ample evidence for the trial judge to make the findings she did.
[60] The trial judge correctly applied the CFSA and case law. She followed the appropriate statutory pathway. She noted the correct steps to follow in the disposition part of a hearing set out in Children’s Aid Society of Toronto v. T.L., 2010 ONSC 1376, [2010] O.J. No. 942.
[61] The trial judge considered all the options available at law, and correctly concluded that not all options under s. 57 remained available because the child had been in the Society’s care for more than 12 months. She correctly considered case law such as Catholic Children’s Aid Society of Hamilton v. M.A.M., [2003] O.J. No. 1274 (S.C.), providing that Crown Wardship is an order of last resort.
[62] Section 57(4) of the CFSA required the Society to examine with fairness, reasonableness, and due diligence whether it was possible and in the child’s best interests to place the child with a family member, neighbour, or community member: see Children’s Aid Society of the Regional Municipality of Waterloo v. Z.B., 1996 4742 (Ont. Ct. J. (Prov. Div.)) and Children’s Aid Society of the Regional Municipality of Waterloo v. M.L., [2002] O.J. No. 3179 (S.C.).
[63] Section 57(4) of the CFSA also required the trial judge to consider whether placement with a family member, neighbour, or community member was possible in the context of the child’s best interests. Children’s Aid Society of London and Middlesex v. L.S., [2005] O.J. No. 5599 (S.C.), at paras. 23-24 states the following:
Before making an order for Crown wardship, however, subsection 57(4) requires the court first to consider whether it is “possible” to place M. “with a relative, neighbour or other member of the child’s community or extended family”. It is certainly “possible” to place M. with Ms. S.F. but the real issue is whether it is in M.’s best interests to do so. See subsection 57(1) and section 1 of the Act.
… The requirement that the court first consider a community placement before making an order for Crown wardship might suggest a presumption in favour of a community placement but I think not. It seems to me that the appropriate test is to weigh and to balance the merits of placing M. with Ms. S.F. under a supervision order or, alternatively, an order for Crown wardship without any starting presumption in favour of one or the other. The comparison is strictly limited to an examination of the advantages and disadvantages of those competing dispositions using the best interests of the child yardstick and, specifically, the enumerated criteria in subsection 37(3) of the Act.
[64] Before ordering that the child become a Crown Ward, the trial judge correctly considered whether it was in the child’s best interests to be placed with the grandmother. The trial judge correctly noted that a family must not be judged by middle class standards of child care; the court must apply a standard of care that is consistent with the child’s best interests: Catholic Children’s Aid Society of Hamilton v. J.I., 2006 19432 (Ont. S.C.), at para. 38. The trial judge also considered the criteria enumerated under s. 37(3) of the CFSA.
[65] The trial judge had ample evidence to conclude that the grandmother did not offer a realistic, long-term, or stable plan. The child has physical, mental, and emotional needs that require special attention. He needs a stable, positive environment. The grandmother changed her mind about the mother (criticizing the mother’s behavioral problems and aggressive tendencies, and yet testifying that she is a good mother); the grandmother failed to abide by the Society’s conditions; and she pretended to be the mother to falsely confirm the mother’s visits.
[66] The Society explored kinship placements and placed the child for a time with a family member. While family members remain supportive, they do not offer a kinship placement. The new evidence of family members while supportive of placement of the grandmother offer support and in the case of one sibling was considered by the Society but as before the role was supportive rather than offering placement. While the grandmother’s post trial efforts are commendable in the absence of being satisfied that it addresses the concerns identified by the psychologist who testified and of the concerns identified by the trial judge does not satisfy me that the new evidence rises to the level of reversing the trial judge or further delay permanency planning for the child.
[67] Given how long this child has been in care, even the grandmother’s very best, fresh evidence does not raise the possibility of a result that would place the child immediately in her care without further transitioning; furthermore, the Society or a judge would have to be satisfied that the grandmother can realistically carry through with a long-term, stable plan.
[68] After her disposition of Crown Wardship, the trial judge considered possible access to the child. She concluded that neither the mother nor the grandmother satisfied the test under s. 59(2.1) of the CFSA. Although I note that the trial judge never used the words “no access,” it is clear that was her conclusion and I find no appealable error.
[69] As difficult as it is for all judges (whether at first instance or on appeal) to terminate a family’s relationship with a child, the appeal is dismissed.
Czutrin J.
Released: April 10, 2014
COURT FILE NO.: FS-13-19037
DATE: 20140410
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended;
AND IN THE MATTER OF T.E.W. (D.O.B.[…], 2010)
BETWEEN:
CAST
Applicant
- and -
S.C-W.
Appellant
REASONS FOR JUDGMENT
CZUTRIN J.
Released: April 10, 2014