COURT FILE NO.: FS-13-69

DATE: 2014Dec8

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A. H.

Lloyd R. St. Amand, for the Applicant

Applicant

• and -

R. C.

Ross Pope, for the Respondent

Respondent

HEARD: November 12, 2014

The Honourable Mr. Justice R. J. Harper

JUDGMENT

Introduction:

Issues

[1] A.H. appeals from the order of Justice G.B. Edward of the Ontario Court of Justice dated January 15, 2013. The Order granted Custody of the child J.L.C. born […], 2008. (6 years old) to the father R.C.W.C and the paternal grandparents, W.C. and R.C.

Grounds for the Appeal

[2] The trial judge made the following errors in law:

(i) He did not properly exercise his discretion by not allowing the mother’s requests for an adjournment of the trial in order to have the OCL to be appointed for the child pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, ss, 89, 112; to order an assessment pursuant to the Children’s Law Reform Act, 1990, c. C.12, (CLRA) s 30; and/or to allow the mother to retain legal counsel.

(ii) ) He ordered custody to the father’s parents even though they were not parties to the action. They did not request custody. They never filed any information as part of an application that is required by the CLRA at s 21.1 and 21.2. No evidence was adduced with respect to the mandatory information required by those sections relative to the existence of any criminal record of these non-parents or any involvement with a children’s aid society.

(iii) He misapprehended the evidence with respect to the sexual abuse allegations. The evidence did not support a finding that the mother was continuously making false allegations causing multiple investigations and “poking and prodding” of the child.

(iv) He did not consider the long standing status quo, i.e. that the child had been in the care of the mother since birth.

(v) He ignored the evidence that the father and the paternal grandfather had not even seen the child for over a year prior to the trial. The paternal grandmother had only seen the child on two brief occasions in the year prior to the trial.

(vi) There was a complete lack of evidence relating to the best interest of the child and little consideration of the factors set out in the CLRA at s 24.

The Law

Standard of Review

[3] In Housen v. Nikolaisen, 2002 SCC 33, 2002 SCC 33, [2002] 2 S.C.R. 235, the Supreme Court of Canada addressed the standard of review on an appeal from a judge’s decision. In summary:

On a pure question of law, the basic rule with respect to the review of a trial judge's findings is that an appellate Court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness (at para. 8).

The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error": Stein v. The Ship "Kathy K" (at para. 10).

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 (at paras. 36-37).

[4] The Ontario Court of Appeal commented on the definition of a palpable and overriding error in Waxman v. Waxman, (2004), 2004 39040 (ON CA), 186 O.A.C. 201, [2004] O.J. No. 1765 (C.A.) at paras. 296-297, 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 … First and foremost, … 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.

Adjournment Requests

To appoint the Office of the Children’s Aid Society

[5] I do not find any merit in this ground. The mother had brought her motion to change custody to require supervised access to the father after an allegation of sexual abuse was made in October 2012. Her motion to change was brought in November of 2012. No request was made for the appointment of an OCL until the first day of trial, two years later. The trial judge properly exercised his discretion not to appoint an OCL at that point. The child was only 4 years of age. Two years had gone by and a further delay for such appointment with no perceived benefit in involving the OCL.

To order an Assessment Pursuant to the Children’s Law Reform Act s. 30

[6] There is not merit in this ground of appeal. Many of the same reasons set out above relative to the involvement of the OCL, apply here. The mother had two years to seek the appointment of an assessor while this matter was before the court. No such motion was brought before the court until the start of the trial. A further delay without any evidence that an assessment was needed was not appropriate. As it turned out, the evidence that was presented at the trial indicated that there was an attempt by the pediatrician Dr Klein, to seek the involvement of the Child Abuse and Assessment Program (CAAP) at McMaster University. This attempt was handed over to the Children’s Aid Society to further request such an assessment. After consideration, CAAP had declined to accept this referral to conduct an assessment.

To Allow the Mother to Retain Counsel

[7] I find that there is no merit in this ground. Although it was argued on this appeal, the mother did not request an adjournment to retain counsel at the trial. She only expressed surprise that the trial was going to proceed that day. The surprise that she did express was not warranted as she was in attendance at both the trial management meeting and the assignment court. On both of these occasions she was told that the matter would proceed to trial when it did. The mother participated fully during the course of the trial. She gave evidence, was allowed to call any witness she chose to call. She cross examined the father’s witnesses and she made submissions to the court.

[8] Courts are constantly faced with the ever-increasing numbers of self-represented litigants. The trial judge in this case made every effort to walk that difficult line between adequately informing a self-represented party without jumping to far into the arena. When a child’s best interest is under consideration, self-represented litigants cannot be allowed to delay for over two years, as did this litigant, and then claim at the appeal that the court should have adjourned to allow her to obtain a lawyer. The trial judge properly exercised his discretion to proceed with the trial and assisted A.H. where it was appropriate to do so.

Misapprehension of the evidence relative to the sexual abuse allegations.

[9] I find that the trial judge had substantial evidence to find that A.M. and her mother’s focus from October 2011, when the first allegations of abuse surfaced was to demonstrate that the father had sexual abused the child.

[10] The mother made complaints to the police and to the Children’s Aid Society. The questioning of the child by the mother and the maternal grandmother were replete with suggestions within the questioning of the very young girl. When the mother stated that she observed the child’s very red vagina after an access visit with her father, the mother asked the child “did anyone hurt your vagina?” The Society worker observed the police interview. This investigation took place after the sexual abuse allegations were made in October 2011. The child did not make any disclosures of sexual abuse on her own.

[11] Further allegations of a similar nature were made in January 2012. These allegations surrounded an access exchange during which Children’s Aid Society workers were present and meeting with the father and the child.

[12] Despite being told the sexual abuse was not confirmed, the mother continued her quest for investigations. Further investigations resulted in the same non confirmation. Nevertheless, A.H. continued to press for further investigations.

[13] On one occasion, A.H. brought the child to the hospital. The child, now 4 years old, was talking to a hospital cleaner, the mother allowed this discussion to take place. The child spontaneously blurted out to this stranger that her daddy “hurt her gina”. The mother then took this as an independent revelation and contacted medical professionals and the police.

[14] A.H. testified that in her view, all of the professionals were not doing their job properly. The trial judge found that the mother continued to obsess about the allegations of sexual abuse despite evidence to the contrary. He stated in his reasons that he was not satisfied that the father sexually abused the child on the balance of probabilities. He then stated at p. 3 of his reasons, commencing at L21:

I conclude it is now that time when J. should live with her father so long as he resides with his parents, W.C and R.C. I don’t make this decision lightly, but Jade has been literally poked and prodded by her mother to get back at the respondent in the same perverse way. This child has experienced far too much drama at the hands of her mother. It is in Jade’s best interest that she reside with her father and his parents. Jade needs a normal life. Not a life focused on trips to the police station or to the doctors after each visit.

[15] I am of the view that the trial judge may not have been justified in stating that the child had literally been poked and prodded by her mother to get back at the respondent in some perverse way. However, there was substantial evidence that the mother did not and could not abandon her relentless pursuit of a finding that the sexual abuse allegations were true.

[16] At the outset of the trial the mother brought the 4 year old child to court and wanted her to speak to the trial judge. The trial judged was rightfully shocked at this. These actions were more geared to proving the abuse happened than demonstrating what was in the best interest of this child.

Errors in law

[17] The CLRA ss 21.1, 21.2 read as follows:

Police records check, non-parents

21.1 (1) Every person who applies under section 21 for custody of a child and who is not a parent of the child shall file with the court the results of a recent police records check respecting the person in accordance with the rules of court. 2009, c. 11, s. 7.

Admissibility

(2) The results obtained by the court under subsection (1) and any information, statement or document derived from the information contained in the results are admissible in evidence in the application, if the court considers it to be relevant. 2009, c. 11, s. 7.

Request for report

21 (2) Every person who applies under section 21 for custody of a child and who is not a parent of the child shall submit a request, in the form provided by the Ministry of the Attorney General, to every society or other body or person prescribed by the regulations, for a report as to,

(a) whether a society has records relating to the person applying for custody; and

(b) if there are records and the records indicate that one or more files relating to the person have been opened, the date on which each file was opened and, if the file was closed, the date on which the file was closed. 2009, c. 11, s. 8.

[18] It is my view the trial judge erred in law by ordering custody of the child to the father’s parents who never brought an application for custody pursuant to the CLRA. They did not file any information relative to any possible criminal record or involvement with a Children’s Aid Society. This information is a mandatory requirement as set out in s. 21.1 and s. 21.2. There was also no evidence presented at trial with respect to these essential declarations. The trial judge did not have jurisdiction to make the order granting custody to W.C. and R.C.

[19] I am also of the view that there was no evidence to support an order for custody to the father. The evidence that was presented was totally focused on whether or not the sexual abuse allegations were true. There was no evidence presented at the trial that related to most of the factors the court must consider in order to make a determination as to what is in the best interest of this child as is required by CLRA s 24. That section reads:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

[20] The trial judge ignored the evidence of the long standing status quo of the child being in the primary care of the mother. His complete focus was the allegations of sexual abuse. He did not weigh any of the other complex factors that may have led to a different custodial arrangement largely because there was no evidence called in that regard.

[21] There was no evidence of any plan for custody by the father. The father, R.W.R.C., was not asked any questions about what the living circumstances of the child would be if he was given custody. Although he stated that he would live with his parents, there was very little evidence about his parents’ plan if custody was given to their son. There was a complete lack of evidence of the proposed home environment, the school the child would attend or what other extended family or friends would be involved in the child’s life. The evidentiary record was void of evidence relative to the financial arrangements for the child, or who would provide care for the child at various times. The court was unaware of where the paternal grandparents worked if at all. The paternal grandmother testified that she had only seen the child on a couple of occasions in the year before the trial. Most importantly there was no evidence from the father or his parents about their knowledge of the child, her health her character her likes or dislikes and her needs.

[22] Appeal as to custody and access is allowed as a result of the above noted errors in law, misapprehension of the evidence and lack of evidence.

Disposition

[23] The disposition of this appeal is made much more complex due to the lack of fresh evidence relating to the child’s living circumstances and other factors that must be included in any consideration of the child’s best interests. There was no motion to stay the trial judge’s order. All I am aware of is that the child has been living with the father and his parents since the granting of the order two years ago.

[24] The Courts of Justice Act, supra, at s 134 provides:

Powers on appeal

134.(1)Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

Interim orders

(2)On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.

[25] I am of the view that it would not be in the best interest of the child to order a new trial. It is my view that this court has the jurisdiction as set out in the Courts of Justice Act at s. 134 to require the parties to file evidence by way of affidavits. This would provide the court with the evidence needed to consider the statutory factors above and make its own order. In order to ensure the process is fair, I make the following order:

1. The interim custody pending disposition of this appeal shall remain with the father, so long as he resides with his parents;

2. Any affidavits to be filed by the father in support of the disposition to be made shall be served and filed no later than December 19, 2014.

3. Any affidavits to be filed by the mother shall be served and filed no later than December 29, 2014.

4. The affidavits shall be considered to be the direct examination of those deponents of the affidavits. The other party may cross examine the deponents at a hearing to be set before me for 2 days during the week of January 5, 2015.

Justice R. J. Harper, SCJ.

Released: December 8, 2014