CMEM v. The Children’s Aid Society of the Regional Municipality of Waterloo
CITATION: CMEM V CAS, 2015 ONSC 1942
COURT FILE NO.: FS-1168-13
DATE: 2015-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CMEM and BJV Appellants
– and –
The Children’s Aid Society of the Regional Municipality of Waterloo Respondent
Gloria Ichim - Counsel for the Appellants
Jeffrey W. Boich - Counsel for the Respondent
HEARD: February 12 & 13, 2015
The Honourable Justice James W. Sloan
[1] This action is an appeal from the decision of Justice Hardman dated November 28, 2013.
[2] Justice Hardman ordered that LMV born […], 2006 and CMV born […], 2008 should be made Crown wards without access.
[3] The event that precipitated the Respondent, Child and Family Services (“CAS”), to become involved with these children took place on September 1, 2010. The CAS had been previously involved with the family in 2008.
[4] The Appellants are asking the Court to set aside the Order for Crown Wardship and to return the children to their care or, in the alternative, to change the order so that their children are made Crown wards with access.
[5] At the start of trial, the Appellants sought to file five new affidavits and one new plan of care. In an oral decision released on February 12, 2015, I expressed my concern that most of the evidence in the affidavits was available and could have been introduced at the trial. This would have allowed the trial Judge, to not only hear the evidence, but also the cross examination of the witnesses.
[6] While most of the evidence did not qualify to be admitted on appeal, under the rules laid down in Children’s Aid Society of Toronto v P.L., 2010 ONCA 890, I allowed the affidavits to be filed subject to my discretion on how much weight to give them.
[7] Given that almost all of the evidence in the affidavits was available prior to the commencement of trial and the Respondent would now, not have an opportunity to cross examine the deponents, I give very little weight to any of the affidavits except where they refer to evidence which occurred after Justice Hardman’s judgment.
[8] The Appellants were represented by a lawyer throughout the initial trial.
Issues
[9] The Appellants raise issues in their appeal, which can be summarized as follows:
A. Whether the learned trial judge erred in using the definition of “Indian” per the Indian Act and not “native” per the Child and Family Services Act?
B. Whether the learned trial judge drew improper inferences and conclusions from the “flat affect” and monotone voice of the Appellant mother?
C. Whether the learned trial judge failed to consider the evidence of caseworker Tanny Ferreira-Mikal?
D. Whether the learned trial judge failed to consider the least intrusive alternative to Crown ward ship?
E. Whether the learned trial judge failed to consider the best interests of the children?
F. Whether the learned trial judge failed to consider and apply section 7 of the Canadian Charter of Rights and Freedoms?
G. Whether the learned trial judge failed to consider the evidence of Dr. Corey that CMV’s failure to thrive should have been recognized by the pediatrician Dr. Mantynen?
H. Whether the learned trial judge failed to adequately provide reasons for concluding that the children are in need of protection?
Analysis
A. Whether the learned trial judge erred in using the definition of “Indian” per the Indian Act and not “native” per the Child and Family Services Act?
[10] The Appellant mother has some aboriginal heritage. Her father had one aboriginal and one non-aboriginal parent. Mathematically, if one assumes that her father was 50% aboriginal it could be argued that the Appellant mother is 25% aboriginal.
[11] Following this logic, since the Appellant father is not aboriginal, the two children in this case would be 12.5% aboriginal.
[12] The evidence indicates that the Appellant mother only saw her biological father while growing up on two occasions; once when she was two years of age and once when she was 15.
[13] The thrust of the Appellant’s argument is essentially that her native status (whatever that status is) was not taken into account by the trial judge.
[14] She points to section 37(4) of the Child and Family Services Act, R.S.O. 1990, Chapter C.11, which states that when making a determination:
In the best interest of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity.
[15] In addition, the Appellants submit that the CAS and the trial judge should have approached this case having regards to Part X of the Child and Family Services Act.
[16] I was not directed to any evidence, that shows that the Appellant parents, or the children, took part in or had any connection to any native culture, heritage or tradition other than biologically through their DNA.
[17] The initial application for child protection is filed at Tab 1 of the Respondent’s Appeal Book. On page 3, it states beside each child’s information “no Indian status.” The Appellants’ trial lawyer confirmed this status in the trial proceedings at Tab 5, page 2 of the Appellants’ Appeal Record.
[18] Both parties acknowledge that the trial judge was made aware that the Appellant mother had some aboriginal heritage.
[19] It does not appear however, that much evidence was adduced at the trial, relating to the Appellant mother’s native heritage, which the Appellants now submit, should have been an extremely important consideration in the trial Judge’s decision.
[20] Since the parties were represented at trial by a lawyer and this issue was not raised, I would not overturn the trial judgment based on the arguments that I have heard on this issue.
[21] Even if the trial judge had been directed to Section 37(4) and Part X of the Child and Family Services Act, I find on the facts of this case that those sections of the Act have very little, if any, application.
B. Whether the trial judge drew improper inferences and conclusions from the “flat affect” and monotone voice of the Appellant mother?
[22] The Appellants argue that the Appellant mother’s flat affect and monotone voice are features of her Ojibwa background.
[23] They take issue with the learned trial judge’s comments at paragraph 76 of her decision stating, “despite discernible intellectual restrictions, she generally displayed a flat affect suggesting some mental health issues,” and when she concludes at paragraph 178, “this lack of attachment has been reflected in her flat affect in her short time to be with the children.”
[24] The Appellants suggest that the learned trial Judge drew an inference of mala fides while Dr. Corey, the expert witness from Sick Children’s Hospital in Toronto, refused to draw that conclusion.
[25] I cannot conclude on the evidence before me that the trail judge found mala fides against either parent.
[26] It does not appear that either party called evidence to assist the trial judge with what a medical definition might be for the “flat affect.” The Appellant’s introduced evidence on Appeal by way of an affidavit from Myeengun Henry, a self-described expert on many, if not all aboriginal issues including the “flat affect” as it pertains to aboriginal peoples. However, no evidence was called along the lines set out in Mr. Henry’s affidavit at trial and because such evidence was readily available during the trial, and because the Respondent would not have the opportunity to cross-examine Mr. Henry, I afford his affidavit evidence very little weight.
[27] To place reliance on the evidence of Mr. Henry, the court would have to find that he was an expert on the matters he deposes to in his affidavit. This appeal court is not in a position to do so and it would certainly be prejudicial to admit Mr. Henry’s evidence at this point in the proceedings without essentially reopening the original hearing and allowing cross examination of Mr. Henry and giving the CAS the right to call rebuttal evidence on the issues raised.
[28] Although this issue was vigorously raised as a ground for appeal, the Appellants only raised it briefly before the trial judge. At page 121 of the Respondents Appeal Book, the Appellant mother in answer to her lawyer’s question regarding her flat affect stated, “Well, there’s a reason behind the flat affect. I am part native and if you listen to other natives, they have that same flatness in their voice – monotone.” This response did not assist the court when faced with Dr. McDermott concerns, set out in Paragraph 31 of this Judgment.
[29] A Parental Capacity Assessment Report was completed on October 27, 2011 by clinical psychologist, Dr. McDermott. It is reproduced at Tab 8 of the Respondent’s Appeal Book. The assessor makes numerous comments about the flat affect and sets out her concerns at page 96 regarding the Appellant mother’s very low-key manner of interacting with the children, her lack of verbal engagement, that she is emotionally flat, seems vacant, has very little emotion, and speaks in a monotone voice.
[30] The assessor states at page 98:
A particular concern is that CMEM presents as having exceptionally flat affect and this has been noted by the undersigned, the consulting psychiatrist and society workers. It is likely that this presentation is not due to depression, but rather the lack of animation in her presentation is defensive in nature and has been developed over the course of her life due to her wariness regarding how others might interpret her thoughts, opinions and emotions.
[31] She goes on at page 99 to state:
The third concern involved CMEM’s ongoing difficulty in relating to both children in an effective and engaging manner. Close inspection of CMEM’s interactions with both children indicate a subtle, yet profound, inability to connect emotionally to them and to gain their attention and regard. CMEM’s flat affect and uninspired communications failed to attract or galvanize the children on the whole.
[32] At page 100 she states:
It is believed that she (CMEM) is largely unaware of how her “flat” presentation negatively impacts the ability of the children to relate to her, and she may even be unaware that her affect is perceived by others as flat.
[33] Despite the assessor’s obvious concerns on October 27, 2011 about the “flat affect” of the Appellant mother, no evidence was called by the Appellant parents on this issue except for the mother’s very brief evidence that it is because of her Ojibwa heritage.
[34] There was however evidence from Dr. McDermott that the appearance of the “flat affect” of the mother may just be the mother’s personality and at least in part, may be because the mother is aboriginal and culturally considered more passive and less emotional.
[35] The trial judge was still left with Dr. McDermott’s conclusion that CMEM’s interactions with both children indicate a subtle, yet profound, inability to connect emotionally to them and to gain their attention.
C. Whether the trial judge failed to consider the material evidence of case worker Tanny Ferreira-Mikal?
[36] The Appellants submit that the testimony of the CAS case worker, Ms. Ferreira-Mikal, was overwhelmingly positive for the parents but that none it was taken into consideration by the trial judge. Ms. Ferreira-Mikal supervised 32 visits and recommended that the children be returned to the parents.
[37] Although her evidence was positive with respect to some supervised access visits, the trial judge is not obligated to comment on each and every witness, and must take into account all of the evidence presented at the trial when making her final determination.
D. Whether the learned trial judge failed to consider the least intrusive alternative to Crown ward ship?
[38] Given that the time that had elapsed, between the children going into care and the date of the trial judgment, was so egregious, the trial judge was essentially left with two options, either to make the children Crown wards or to return them to the custody of their parents.
[39] The trial judge no longer had the option under the current legislation of leaving the children with the CAS on a temporary basis.
[40] Although the trial judge could have ordered Crown wardship with access, there are specific criteria in the Act in order to exercise this option.
[41] Under section 59(2.1) of the Child and Family Services Act a court shall only make an access order with respect to a crown ward where 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.
[The underlining is mine]
[42] Pursuant to the affidavit of CAS worker, Deborah Joslin, dated November 13, 2014, the last access visit between the children and the parents occurred on November 27, 2013. The older child has asked about his biological parents on two occasions, however, neither child has asked for contact with their biological parents since November 2013.
[43] The parents submit that because the children have native heritage, the court should have looked at long-term foster care rather than ordering crown ward ship without access. They further submit that the children know and love their natural birth parents and to not allow access would be traumatic for them.
[44] In light of the affidavit of Deborah Joslin and the fact that the children are doing well in their placement, there is no evidence that the continued separation of the children from their biological parents is traumatic for them. In fact, the evidence appears to be quite the opposite.
E. Whether the learned trial judge failed to consider the best interests of the children?
[45] The best interests of the children are essentially the main issue in this appeal.
[46] The Appellant’s submit that the trial judge did not consider the best interests of the children by granting Crown warship with no access and by ignoring evidence at trial regarding the Appellant father’s ability to parent.
[47] I disagree with these submissions.
[48] The trial judge delineated numerous serious and chronic deficiencies in the parenting abilities of the Appellants, including:
A. Their inability to adequately maintain a safe, healthy home
B. Their inability and/or lack of knowledge to prepare healthy food for the children
C. Their inability or refusal to adequately discipline the children and in particular, to discipline as a unit consistently
D. Their extreme lacklustre commitment to follow through with CAS recommendations including nutritional counselling and attending at “terrific toddlers”
E. Once in counselling, the mother’s refusal to attend appointments appropriately
F. Their refusal to acknowledge any role in the neglect of their children, particularly, their serious physical neglect of CMV described by Dr. Corey as a severe failure to thrive. (On September 8, 2010, at 22 months of age, CMV was functioning at a 7 to 10 month old level and by February 28, 2011 after being in care approximately 5 months she was functioning at an age-appropriate level)
G. Even after the parenting capacity assessment, the parents were unable to handle the children on their own during access at their home, and access was ultimately returned to the access centre. In addition the parents failed to attend to get a list of dentists from Ontario Works as they said they would
[49] In addition, when both children were taken into care, they were delayed in multiple spheres of development due to lack of stimulation.
F. Whether the learned trial judge failed to consider and apply section 7 of the Canadian Charter of Rights and Freedoms?
[50] There is no evidence that this issue was raised before the trial judge.
[51] In any event, I have not been convinced that section 7 the Canadian Charter of Rights and Freedoms applies to this case, or that the Appellant’s rights under section 7 have been infringed.
G. Whether the learned trial judge failed to consider the evidence of Dr. Corey that CMV’s failure to thrive should have been recognized by the pediatrician Dr. Mantynen?
[52] Even if Dr. Mantynen should have recognized CMV’s failure to thrive, that does not alleviate the parents from their failure to notice that CMV was starving to death on September 1, 2010.
[53] The evidence was clear before Justice Hardman that the child’s failure to thrive would have been gradual over several months and not something that would happen in a couple of weeks or a month.
H. Whether the learned trial judge failed to adequately provide reasons for concluding that the children are in need of protection?
[54] I disagree. I find that the trial judge has given more than adequate reasons for why both children are in need of protection.
Scope of Appellate Review
[55] This case took 12 days of trial to complete. The appeal documents, including the transcripts of all of the evidence, fill an entire banker’s box.
[56] The scope of Appellate review is set out in the 2004 Court of Appeal decision in Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765; 44 BLR (3d) 165 at paragraphs 292-295.
[57] At paragraph 294, after stating that the “palpable and overriding” standard demands Appellant deference to findings of fact made at trial, the court goes on to state:
In a case as lengthy and factually complex as this case, appellate judges are very much like the blind men in the parable of the blind men and the elephant. Counsel invite the court to carefully examine isolated parts of the evidence, but the court cannot possibly see and comprehend the whole of the narrative. Like the inapt comparisons to the whole of the elephant made by the blind men who felt only one small part of the beast, appellate fact finding is not likely to reflect an accurate appreciation of the entirety of the narrative. This case demonstrates that the “palpable and overriding” standard of review is a realistic reflection on the limitation and pitfalls inherent in Appellate fact finding.
Current situation
[58] The children have been living with the same foster parents for over 4½ years with limited access to the Appellants and no access since November 2013. In the case of CMV, she has now lived with and been cared for, by the foster parents for approximately 75% of her life.
[59] When the children were taken into care they and particularly CMV were developmentally delayed in multiple spheres including verbal, social and emotional delays.
[60] LMV had emotional and impulse issues and difficulties with frustration tolerances and required specialized ongoing behaviour management. He needed & needs consistency and routine and parents who would follow through with discipline and consequences. In September of 2010 he was more like a two-year-old than a four-year-old, was under socialized and impulsive, and required one-to-one supervision in kindergarten. There were significant delays regarding his fine motor skills personal responsibility and peer interactions.
[61] The foster parents and the children have a proven track record as both children appear to be doing very well in their care.
[62] The children are in school in the foster parents catchment area and most likely have friends in that area.
[63] The court has been informed, that the foster parents are prepared to adopt both children.
[64] This court, before rendering its judgment asked the CAS to ascertain whether the foster parents would adopt the children, if this court made an order for Crown wardship with access.
[65] The court has been advised, that the foster parents are not prepared to proceed with the adoption on that basis. Therefore, if the court were to uphold the order for Crown ward ship but allow the appeal to the extent that access would be allowed, this would certainly impair the children’s likelihood for adoption.
[66] In addition to the reasons for judgment of the trial judge, and to a large extent, because of the passage of time, it now appears to overwhelmingly be in the best interest of these children, to be adopted by their current foster parents.
Judgment
[67] I therefore dismiss the appeal, however before leaving this matter I find that the time it has taken this case to wind its way through the CAS and trial process to be unsettling, unsatisfactory, and worthy of review and comment which I will add at the end of this Judgment.
[68] If either party feels this is a matter for costs, I may be spoken to.
Observations and Comments
[69] This court received the distinct impression from both counsel, that the scheduling problems and the inordinate length of time it has taken to try this case are more the norm, than the exception. It is difficult, if not impossible, to conceive that these delays are anything but contrary to the best interest of the children involved and to the effective Administration of Justice.
[70] The following are some of the salient chronological/time facts involved in this case:
A. When the children went into care with their current foster parents on September 2, 2010, CMV was 1.8 years old and LMV was 3.8 years old.
B. The trial to determine the children’s future, which heard evidence over 12 days commenced August 23, 2012 and was completed on February 4, 2013. This is approximately 165 days from the first day of evidence to the last day of evidence.
C. The trial judgment was delivered on November 28, 2013, which is approximately 300 days after the completion of the trial. On November 28, 2013, it was also three years two months and 26 days from the date the children began living with and bonding with their foster parents. CMV was then five years old and LMV was 7.1 years old.
D. The last access between the Appellants and the children was on November 27, 2013, which is about 480 days before this appeal Judgment was rendered.
E. The trial in this matter commenced almost 2 years after the children were taken into care and the judgment was released more than 3 years after the children were taken into care.
F. The hearing of this appeal commenced on February 13, 2015; in summary, approximately 4½ years after the children were taken into care.
G. Rule 33(1) of the Family Law Rules indicates that a hearing in a child protection case should take place no more than 120 days after the child is taken into care. In this case approximately 720 days elapsed. This is five times what the legislation says is allowable.
H. Section 70 of the Child and Family Services Act indicates that the court shall not make an order for Society Wardship that results in a child under the age of six being a society ward for the period exceeding 12 months or a child being over six being a society ward for a period exceeding 24 months.
[71] To say that there is a systemic problem when young children and the issue of Crown Wardship are involved, at least in this case, is an understatement.
[72] It appears that none of the legislated time limits were even remotely adhered to.
[73] In an effort to find some answers, I went to the Ontario Court of Justice’s website at http://www.ontariocourts.ca/ocj/family-court/serving-the-public/family-scheduling-policy/.
[74] Under guiding principles, it states:
Contested family law and child protection matters whose outcome would affect the well-being and day-to-day physical, emotional and/or mental health of children should be considered matters where time is of the essence. Scheduling of these matters should reflect this. Judicial time should be made available so these matters will be completed in a timely fashion. Family and child protection schedules should reflect this principle as much as possible.…
[75] These principles seem to have been absent in this case.
[76] All parties involved must find ways to reform the system and allocate sufficient resources to the Ontario Court of Justice so that there trial judges can hear these important Crown wardship matters, on consecutive or close to consecutive days, rather than piecemeal over a period of several months.
[77] Then of course, a Judge hearing 12 days of evidence would require adequate time shortly after (preferably immediately after) the trial to allow him/her to render a timely judgment.
[78] From the view of an Appeal Court, the timing involved in this case presents some disturbing ethical and legal issues.
[79] How could it ever be in these children’s best interest, to remove them from their current home after 4½ years, even if the trial judge had made serious errors in her judgment? They have resided for the last 4½ years in the only home they know, with the same foster parents who are willing to adopt them both, and are for all practical purposes the people they know and depend on as their Mom and Dad.
[80] A child’s development does not wait for the “niceties” of lengthy and protracted legal proceedings. The time from apprehension by the CAS until now, has covered by far the major portion of their young lives. This is the time in their lives, which is generally accepted to be critical for positive child development of love, trust and positive self-image along with other factors.
[81] The Appellants of course have a further right of appeal to the Court of Appeal, which could delay in the final outcome for these children by another year or more.
[82] It is my hope that counsel will bring the concerns raised in my observations and comments to the attention of those who can affect meaningful changes.
Justice James W. Sloan
Released: March 25, 2015
CITATION: CMEM V CAS, 2015 ONSC 1942
COURT FILE NO.: FS-1168-13
DATE: 2015-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CMEM and BJV Appellants
– and –
The Children’s Aid Society of the Regional Municipality of Waterloo Respondent
REASONS FOR JUDGMENT
Justice James W. Sloan
Released: March 25, 2015