ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-018 / FS-13-019 / FS-13-020
DATE: 2014-06-04
BETWEEN:
M.C. (Biological Mother of Ri.C-L.,
Ru.C-L. and T.C.) and
S.L. (Biological Father of Ri.C-L. and
Ru.C-L.)
Appellants on Appeal
– and –
Children’s Aid Society of the Districts of Nipissing and Parry Sound
Respondent on Appeal
– and –
Children: Ri.C-L., Ru.C-L. and T.C.
Respondents on Appeal
– and –
F.G. (Biological Father of T.C.) and
R.R-G. (Stepmother of T.C.)
Respondents on Appeal
D. Andrew Thomson, for the Appellant M.C.
Edward Rae, for the Appellant S.L.
Don C. Wallace, for the Respondent
Serge Treherne, Agent for Children’s Lawyer
Timothy Graf, for Respondents F.G. and R.R-G.
HEARD in Parry Sound: April 29, 2014
REASONS ON APPEAL
O’Neill j.:
A. Introduction
[1] On April 29, 2014, I heard two appeals from the Orders made by Maille J. of the Ontario Court of Justice, dated January 15, 2013. The Orders followed a 15 day trial held over several months.
[2] The Orders provided as follows:
The child, Ri.C-L. born […], 2008, is found to be in Need of Protection pursuant to Section 37(2)(a) and subclause 37(2)(a)(i) of the Child and Family Services Act.
The child, Ri.C-L. born […], 2008, shall be made a Ward of the Crown without Access and shall be committed to the care and custody of the Children’s Aid Society for the Districts of Nipissing and Parry Sound for the purpose of adoption.
The child, T.C. born […], 2007, is found to be in Need of Protection pursuant to Section 37(2)(b)(i) of the Child and Family Services Act.
The child, T.C. born […], 2007, shall be placed in the care and custody of his father, F.G., subject to the supervision of the Children’s Aid Society for the Districts of Nipissing and Parry Sound for a period of four months.
The mother, M.C., shall have supervised access to the child, T.C. born […], 2007, as arranged with the Children’s Aid Society for the Districts of Nipissing and Parry Sound.
The stepfather, S.L., shall have supervised access to the child, T.C. born […], 2007, at the discretion of the father, F.G., and to be arranged with the Children’s Aid Society for the Districts of Nipissing and Parry Sound.
The child, Ru.C-L. born […], 2010, is found to be in Need of Protection pursuant to Section 37(2)(b)(i) of the Child and Family Services Act.
The child, Ru.C.-L. born […], 2010, shall be made a Ward of the Crown without Access and shall be committed to the care and custody of the Children’s Aid Society for the Districts of Nipissing and Parry Sound for the purpose of adoption.
[3] The mother, M.C., appeals the orders made relating to all three children both with respect to the finding in Need of Protection and the disposition, being Crown Wardship without Access for Ri.C-L. and Ru.C-L., and the placement of T.C. with his natural father subject to a four month supervision order.
[4] The father, S.L., appeals against the Crown Wardship order without Access relating to Ri.C-L. and Ru.C-L. He has requested that they be placed in his care subject to a Supervision Order. He does not appeal the decision finding Ri.C-L. and Ru.C-L. in Need of Protection, nor does he appeal the decision with respect to T.C.
B. Overview
[5] I reproduce from the Factum of the appellant, S.L., paras. 2 to 14, setting out the factual overview in relation to this case.
The Appellant, M.C. is the mother of all three children. The appellant S.L. is the father of Ri.C-L. and Ru.C-L. and was the stepfather of T.C. The Respondent, F.G. is the father of T.C.
The trial was held on February 13-17, 2012, May 14-16, 2012, May 22-24, 2012, July 6, 2012, August 20, 2012 and October 16-17, 2012, with Justice Maille releasing his Reasons for Judgment on January 15, 2013.
The issue of a finding in need of protection had not been determined prior to trial. On consent, the trial proceeded as a blended hearing with evidence relating to all three children being heard together.
T.C. suffered a fracture of his clavicle (collarbone) on or about September 11-13, 2009, with Justice Maille concluding that it was accidental and most likely did not occur while T.C. was in the care of M.C. or S.L.
Ri.C-L. suffered a number of injuries, including a broken collarbone, a broken femur and two metaphyseal fractures.
On September 29, 2009, Ri.C-L. was apprehended from the North Bay Hospital.
As a result of Ri.C-L.’s injuries, Ru.C-L. was apprehended at birth. She was placed in the same foster family as Ri.C-L. on April 24, 2010.
The trial judge found that the injuries to Ri.C-L. were not accidental and that she was therefore in need of protection.
The trial judge could not decide which of the parents was responsible for the injuries to Ri.C-L., but if only one parent was responsible for her injuries, then the injuries “were also caused by, or resulted from the other parent’s failure to adequately care for, provide for, supervise or protect her.”
The trial judge then found that due to Ri.C-L.’s injuries, T.C. and Ru.C-L. were in need of protection under clause 37(2)(b)(i) of the CFSA.
The trial judge found that the other concerns the CAS had with the parents were no worse than they were before the children were apprehended, and that by themselves those concerns did not rise to a level of a decision not to return the children. Similarly, the trial judge rejected concerns about the parents’ ‘flat affect’, indicating that he had no doubt that the parents loved their children. As a result, he felt the decision on whether or not to return the children to the parents had to focus on the parents’ role in the serious injuries.
The trial judge then reiterated that while he found that at least one of Ri.C-L.’s parents inflicted her serious injuries, that on the evidence before him, he was unable to conclude which parent caused the injuries, but if only one parent injured her, then the other one failed to protect her from the abuse, and that any of the children being returned to the parents would expose them to significant risk.
The trial judge then concluded that T.C. should be placed with his biological father, F.G., subject to a Supervision Order for a period of four (4) months, with supervised access to each of the Appellants (albeit with S.L.’s access subject to the wishes of T.C. and the discretion of F.G.). With respect to Ri.C-L. and Ru.C-L., the trial judge decided that they should be made Crown Wards without access for the purpose of adoption.
C. Standard of Review in Child Protection Appeals
[6] With respect to findings of fact, the Supreme Court of Canada has made it clear that an appellate court should not interfere with a trial judge’s findings of fact unless it can be established that the trial judge made a palpable and overriding error which has affected his or her assessment of the facts – see Housen v. Nikolaisen 2002 SCC 33, [2002] S.C.J. No. 31 (S.C.C.)
A “palpable error” is one that is obvious, plain to see or clear. 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 missed apprehension of the evidence, and findings of fact drawn from primary facts that are the result of speculation rather than inference.
[7] The standard of review on a pure question of law is one of correctness – see Housen, supra.
D. M.C.’s Grounds for Appeal
[8] In her factum, and in oral argument, counsel for the mother raised the two following principal points in support of relief on the appeal:
The trial judge concluded that M.C. was not a reliable or credible witness, but he failed to indicate in his reasons what evidence from this appellant he accepted and why, thus failing to properly appreciate that it was open to him to accept some, none or all of this witness’ testimony.
The trial judge failed to properly consider and weigh the mother’s new circumstances at the time of trial, given that she had separated from S.L. and had presented a plan for the children to be placed with her and her new partner.
E. S.L.’s Grounds for Appeal
[9] In oral argument, counsel for S.L. argued that there was no evidence adduced at trial to establish that S.L. intentionally caused any of Ri.C-L.’s injuries. In effect, counsel submitted that whoever the offending or injury causing parent was, the actions of this parent could, in all the circumstances, be categorized as accidental, and not intentional. Further, counsel submitted that the non-offending parent would not necessarily have noticed or appreciated Ri.C-L.’s right leg injury.
[10] Counsel argued that any injuries might more likely have been caused by the mother and that further, S.L. was a more credible and acceptable witness than M.C., and the court could be satisfied to place Ri.C-L. and Ru.C-L. with him, under a supervision order. Finally, counsel submitted that in making Crown wardship orders without access, a trial court required a high degree of probability of risk or harm, citing the decision Prince Edward Island (Director of Child Welfare) v. N.W. in support thereof.
F. The Fresh Evidence
[11] Fresh evidence was filed on the appeal, in the form of two affidavits (Elyssa Jenkins sworn October 23, 2013 and Victoria Louise Christie sworn November 8, 2013).
[12] In short, the updated evidence provided as follows:
M.C. gave birth to a girl, S.G., on [...], 2013.
Since the trial decision of January 2013, there has been no access between the parents and the children.
M.C. and S.G.’s father M.G. have since separated.
M.G. spoke to the CAS about the high level of conflict between him and M.C.
Drug testing results from M.G. received on July 18, 2013 indicated that he tested positive for fentanyl, and positive in trace amounts for codeine, morphine, oxycodone and methadone.
Meconium drug results for S.G. received July 26, 2013 indicated positive for opiods, codeine and trace amounts of hydromorphone. M.C. admitted to Elyssa on September 23, 2013 that she used drugs recently.
The CAS is of the view that neither parent is “ready and able to parent” as at October 23, 2013.
Ri.C-L. and Ru.C-L. were placed with another family in an approved “foster to adopt” home in July 2013. The placement is going well. Neither child has asked about their biological parents but do often ask about their previous foster parents. If the appeal is dismissed, the Society will work with the current foster placement to transition from fostering to adoption.
T.C. continues to reside with his father, F.G., and his step-mother, R. R-G. The family has a well-established support system in place. T.C. is a healthy child, well settled in the care of F.G. and R.R-G. T.C. has access with M.C. once a week for two hours. This supervised access is observed to be positive and the Society has no concerns pertaining to the quality of access.
Neither M.C. nor S.L. replied to the affidavits of October 23 and November 8, 2013.
G. Analysis and Disposition
[13] As at the date of the appeal hearing, Ri.C-L. was five years and four months old. She has been in care for four years and seven months. T.C. is seven years and seven months old, and in care for four years and seven months. Ru.C-L. has been in care for four years, since her birth.
[14] In my view, given the provisions of s. 70 of the Child and Family Services Act, c. C.11, as amended, a re-trial of this case, or a disposition hearing, would be clearly contrary to the best interests of all three children.
[15] Justice Maille’s reasons are 42 pages in length. I have carefully reviewed those reasons, and in them, the trial judge:
reviewed and ultimately gave no weight to the s. 54 assessment, which report did recommend Crown wardship for both girls, and placement of T.C. with his father.
reviewed the parents’ role, if any, in relation to the children’s injuries
reviewed the parents’ explanation for Ri.C-L.’s injuries
analysed M.C.’s credibility under eleven distinct areas
reviewed and considered S.L.’s credibility in relation to 14 events or issues
reviewed and analysed both Dr. Cory and Dr. McCall’s medical evidence, outlining why and in what respects he preferred and accepted Dr. Cory’s evidence over Dr. McCall’s
made findings with respect to the infliction of Ri.C-L.’s injuries and the parents’ role in relation to his findings
considered different dispositions before arriving at his final conclusions.
[16] At this juncture, I reproduce paras. 135, 146 to 149, and 152 to 156 of the trial judge’s reasons:
[135] Given the serious inflicted injuries suffered by Ri.C-L.at the hands of one or both her parents while in their care, and the resulting risk of harm to T.C. and Ru.C-L. , I am satisfied that intervention through a court order is necessary to protect all three children in the future.
[146] In my view, the decision whether to return the children to the care of M.C. or S.L. must focus on the parents’ role in the serious injuries inflicted upon Ri.C-L.
As set out previously, while I find that at least one of Ri.C-L.’s parents inflicted her serious injuries, on the evidence before me I am unable to conclude which parent inflicted these injuries. If only one parent injured Ri.C-L., the other failed to protect her from this abuse.
[148] Faced with similar findings, Justice Brown in Chidren’s Aid Society of Hamilton v. E.D., supra, at paragraph [698], reasoned as follows:
[698] It is not for this Court to gamble with the lives of children. I cannot “guess” as to which of L.G.’s parents was responsible for his injuries and I cannot return L.G. to a parent with the “hope” that I have guessed correctly.
[149] I adopt this reasoning.
[152] Similar reasoning applies to this case. The risk of injury is the predominant factor in determining whether returning the children to the care of M.C. or S.L. is in their best interests.
[153] Both parents continue to deny wrongdoing in Ri.C-L.’s injuries. Consistent with this position, neither parent has embarked on a course of action aimed at reducing the risk of injury to the children if they were returned to his or her care. Although M.C. is undergoing counselling, I find that its focus is not on addressing issues related to reducing the risk of injury to the children. Rather, M.C. testified to the effect that the focus of her counselling is on everything that has happened to her since the children were removed from her care. I therefore conclude that M.C.’s counselling is aimed at addressing issues related to the impact on her of the apprehension of her children.
[154] Further, neither parent has expressed concern for the other having unrestricted access to the children. Neither has proposed any precautions to address the risk of injury to the children if they were to be in the care of the other. I find that neither parent recognizes the risk of harm to the children stemming from their role in Ri.C-L.’s injuries.
[155] For these reasons, I find no change in the risk of injury to the children from that which existed at the time of Ri.C-L.’s apprehension.
[156] Given my findings regarding the role of the parents in Ri.C-L.’s serious inflicted injuries, and that there has been no reduction in risk of injury to the children since Ri.C-L.’s apprehension, I conclude that returning Ri.C-L., Ru.C-L. and T.C. to the care of either M.C. or S.L. would expose them to significant risk of injury, and is not in their best interests.
[17] I can find no error as to how the trial judge performed his task, analysed in particular the medical evidence, and came to his overarching conclusion that returning the children to either or both of their parents would expose them to significant risk of injury, and would not be in their best interests. As Justice Brown indicated in the Children’s Aid Society of Hamilton v. E.D., supra, the trial judge herein was, in my view, correct to come to a conclusion that he could not return any of the children to a parent (particularly considering that the appellants have since separated), “with the hope that I have guessed correctly.”
[18] The findings made by the trial judge, after his careful analysis, demand deference from this appeal court, failing any overriding or palpable error. In my view, based on the evidence at trial and the trial judge’s reasons, he could not come to any other conclusion than he did, considering the severity of the injuries, evidence around their discovery, parental explanations in relation to them, medical evidence as well as the continued expression by each appellant of no concern for the other having unrestricted access to the children.
[19] The trial judge was, in my view, entitled to examine portions of M.C.’s evidence to gauge and weigh her reliability and credibility. This he did in paras. 56 and 57 of his reasons. In so doing, he was entitled to consider her explanation for the spiral fracture to Ri.C-L.’s femur, and to reject her evidence with respect to the events between the evening of September 24th, 2009, and the time that Ri.C-L. was taken to the North Bay Hospital. I find no palpable or overriding error in the trial judge’s apprehension and consideration of the evidence in this regard.
[20] In the end, this is a tragic case about the infliction of serious injuries upon a child, and the risk that further injury or injuries could be inflicted upon a return of any of the children to the care of either parent. Further, the fresh evidence filed and outlined in these reasons convinces me that it is clearly in Ri.C-L. and Ru.C-L.’s best interests to transition from foster placement to adoption, and that is in T.C.’s best interest to continue in the care and custody of his father, under the terms of the Order of January 13, 2013.
[21] I concur with counsel for the Children’s Aid Society, where at para. 68 of its factum, it is outlined in part, as follows:
Section 37(3) sets out the Best Interests test under the Child and Family Services Act. It sets out a large number of factors to be considered by the Court in determining the child’s best interests. In a case such as this is, it is submitted that the nature of the risk to the child as well as the extent or degree or risk in the possible return to the parents are the paramount considerations.
[22] I point out that at present, there is no suggestion that M.C. is in a continuing relationship with F.G., or with any partner whom the court might consider as a further source of stabilization and protection for the children. Underlying drug use and addiction with underlying traumas may continue to be present for the mother. It is encouraging that she is beginning to work on these issues. The father resides alone, again without any indication that he has put in place protections and stabilizers to ensure the long-term safety and well-being of the children.
[23] Accordingly, for all of these reasons, the within appeals are dismissed, but without costs.
The Honourable Mr. Justice J.S. O’Neill
Released: June 4, 2014
COURT FILE NO.: FS-13-018 / FS-13-019 / FS-13-020
DATE: 2014-06-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.C. (Biological mother of Ri.C-L.,
Ru.C-L. and T.C.) and
S.L. (Biological father of Ri.C-L. and
Ru.C-L.)
Appellants on Appeal
– and –
Children’s Aid Society of the Districts of Nipissing and Parry Sound
Respondent on Appeal
– and –
Children: Ri.C-L., Ru.C-L. and T.C.
Respondents on Appeal
– and –
F.G. (Biological Father of T.C.) and
R.R-G. (Stepmother of T.C.)
Respondents on Appeal
REASONS on appeal
O’NEILL J.
Released: June 4, 2014