C.T. v. Native Child and Family Services of Toronto, 2015 ONSC 2649

CITATION: C.T. v. Native Child and Family Services of Toronto, 2015 ONSC 2649

COURT FILE NO.: FS-14-00019619

DATE: 20150422

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: C.T., Appellant

AND:

Native Child and Family Services of Toronto, Respondent

BEFORE: CHIAPPETTA, J.

COUNSEL: Lawrence B. Geffen, for the Appellant

Lisa Hayes, for the Respondent

HEARD: April 20, 2015

ENDORSEMENT

Overview

[1] The Appellant is the father of Z.R.T., born […], 2012 (“the child”). He appeals the judgment of the Honourable Justice Debra Paulseth of the Ontario Court of Justice (“the trial judge”), dated July 14, 2014, wherein she ordered that the child be made a ward of the Crown with no access for the purpose of adoption. The Appellant father’s grounds for appeal primarily relate to his objection to the trial judge’s findings of fact. The function of this court, however, sitting as an appeal court, is not to conduct an independent review of the trial evidence and determine whether the trial judge’s individual findings are reasonable. Rather, the function of this court is to determine whether the trial judge has correctly stated the law and applied it to the facts absent palpable and overriding error. In my view, the trial judge carefully and thoroughly reviewed all of the evidence and made no reversible errors in her findings of facts and her application of the law to those facts. The Appellant’s appeal is therefore dismissed. The child is to be placed in an adoptive home without further delay.

Background

[2] The Respondent, the Native Child and Family Services of Toronto (“the Society”), apprehended the child from his mother on October 29, 2012. As noted above, the child was born on […], 2012. The Society filed a Protection Application in relation to the child, dated November 2, 2012, in which it sought a finding that the child is a child in need of protection and a final disposition of Crown wardship without access for the purpose of adoption.

[3] At the trial management conference on May 7, 2014, the parties reached an agreement that the child is a child in need of protection pursuant to s-s. 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c. C.11. and agreed to the following facts:

a) Mother has a long history of involvement with the Society, having had five previous children made Crown wards without access;

b) Father was incarcerated for assault on the mother for much of her pregnancy;

c) At the time of the child’s birth, father had no housing; and

d) Father has a lengthy criminal record which includes domestic violence.

[4] The mother was noted in default by the case management judge but was permitted to participate in the trial to the extent of supporting the father’s plan.

[5] The trial judge heard evidence from 11 witnesses over the 5 day trial of this matter; 6 witnesses called on behalf of the Respondent and 5 witnesses on behalf of the Appellant father. She provided detailed reasons for judgment wherein she ordered that the child be made a ward of the Crown with no access for the purpose of adoption.

Grounds for Appeal

[6] The Appellant father raises 25 grounds of Appeal in his Notice of Appeal dated August 11, 2014. In his factum, the Appellant father focuses in on 12 grounds of appeal. Counsel for the Appellant father asked the court to focus on the 12 grounds as set out in the Appellant’s factum and summarized as follows:

1. The trial judge erred in giving no weight or insufficient weight to the virtually complete satisfaction by the Appellant father of the Society’s expectations;

2. The trial judge erred in her assessment of the credibility of Ms. E. Ashkewe and Ms. K. Colakic;

3. The trial judge erred in concluding that the Society was justified in its decision not to permit the Appellant father to participate in the Therapeutic Access Program;

4. The trial judge erred in declining to find that the Society was biased against the Appellant father;

5. The trial judge erred in finding that “every possible resource was provided to the family;”

6. The trial judge erred in concluding that the Appellant father was unable to sustain a course of mental health treatment with a consistent professional or a consistent course of medication;

7. The trial judge erred in giving too much weight to the Appellant father’s previous criminal record;

8. The trial judge erred in giving too much weight to the Appellant father’s behaviour at a meeting held at the Society on May 28, 2014;

9. The trial judge erred in concluding that the Appellant father does not really know what a father is;

10. The trial judge erred in refusing to grant an extension of Society wardship pursuant to s. 70(4) of the Child and Family Services Act;

11. The trial judge erred in failing to make an order for access to the Appellant father;

12. The trial judge erred in her application of the best interests test to the facts of the case.

[7] The grounds of appeal, therefore, are predominately related to isolated findings of fact made by the trial judge in the context of the totality of the evidence before her.

Standard of Review

[8] The parties agree that the standard of review for all factual conclusions made by the trial judge is that of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 9, 25; Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765 (Ont. C.A.), at paras. 296, 297, 300, 301, 305.

[9] The parties further agree that the standard of review for an error of law is correctness and that where the findings involve mixed fact and law or drawing conclusions and inferences, they should not be overturned absent a palpable and overriding error: Children’s Aid Society of Toronto v. DJ, 2013 ONSC 2776, [2013] O.J. No. 2441, at para. 27.

[10] Finally, the parties agree that “a palpable error is one that is obvious or plain to see and an overriding error is one that is sufficiently significant to vitiate the challenged finding of fact and goes to the root of the challenged finding of fact. In reviewing the inferences made by the trial judge, the court will consider whether they are supported by the findings of fact or whether they are clearly wrong. The appellant court will not re-weigh the evidence:” Children’s Aid Society of Toronto v. DJ, at para. 27.

Grounds of Appeal

1. The trial judge erred in giving no weight or insufficient weight to the virtually complete satisfaction by the Appellant father of the Society’s expectations.

[11] On January 31, 2013, the Society’s family support worker, Ms. Kelly Whicher, provided the Appellant father with a letter outlining the expectations that he would need to meet in order for the Society to implement his independent plan of care for his son. On April 15, 2013, Ms. Whicher advised the Appellant father that stability, no criminal activity and sustained housing were paramount to this plan. The Appellant father submits that the trial judge erred in failing to give sufficient weight to the fact that he complied with virtually all of the Society’s stated expectations.

[12] The trial judge reviewed the expectations of the Appellant father (para. 41). She acknowledged that he had made tremendous efforts to learn how to become a parent (para. 149). She found residual and current issue, however, with his ability to integrate the education into consistent practices (para. 149), his past parenting of his other two children and the other children of the child’s mother (paras. 146, 147), his stability (para. 148), his mental health (para. 145), the quality of his housing (para. 151), his conduct during access visits (para. 149), his criminal history and anger management issues (paras. 145, 153). Her findings were supported by the evidence.

[13] The Appellant father has not demonstrated that the trial judge made a palpable or overriding error in her assessment or weighing of the evidence in relation to the satisfaction of the Society’s expectations. Nor has the Appellant father pointed to a misapprehension of evidence or an error of fact sufficiently significant to vitiate the determinations made by her on this specific issue. Rather, reading her reasons as a whole, the trial judge considered the satisfaction of the Society’s expectations in the context of the totality of the accepted evidence.

2. The trial judge erred in her assessment of the credibility of Ms. E. Ashkewe and Ms. K. Colakic.

[14] At paragraph 150 of her reasons, the trial judge states that “where the evidence of Ms. Ashkewe and Ms. Colakic conflicts, however, the court must choose the evidence of Ms. Colakic as she was present for the whole of the visit and her purpose was a teaching role.” The Appellant father submits that this represents a palpable and overriding error as it is clear from the evidence that Ms. Ashkewe had more experience and had supervised far more visits than Ms. Colakic.

[15] This fact, however, was considered by the trial judge. She states at para. 150 that Mr. Colakic’s “youth and inexperience were pointed out by counsel for the parents. The court does not find that to be a drawback in this instance, as she took her role very seriously and was not defensive in the witness stand at all. Ms. Colakic had clear ideas to offer the father, but he couldn’t hold onto them.”

[16] The trial judge observed the firsthand evidence of Ms. Ashkewe and Ms. Colakic. She made findings of credibility and explained with sufficient reason why she preferred the evidence of one witness over the other. It is not the function of an appeal court in these circumstances to second guess her assessment of credibility.

3. The trial judge erred in concluding that the Society was justified in its decision not to permit the Appellant father to participate in the Therapeutic Access Program.

[17] The Appellant father submits that the trial judge erred in concluding that the Society was justified in its decision not to permit the Appellant father to participate in the Therapeutic Access Program (“the program”). He draws the court’s attention to the evidence of the supervisor of the program, Ms. Arghoshi, who conducted a positive visit in February 2014 and recommended the Appellant father for the program.

[18] Prior to her conclusion, the trial judge considered the evidence of the supervisor. She also considered the evidence of a Society supervisor, Mr. Jeff Moriarity, who testified that the Appellant father could not move to the home visit part of the program as his housing was not appropriate; that the entire file must be reviewed, not just the access notes; and that the Appellant father had not demonstrated any insights gained from his counselling (paras. 80, 81).

[19] The Appellant father has failed to demonstrate how the failure of the trial judge to conclude that the Society was wrong to refuse the Appellant father admission to the program constitutes a palpable and overriding error. The totality of the evidence before the trial judge supported the conclusion made.

4. The trial judge erred in declining to find that the Society was biased against the Appellant father.

[20] The Appellant father submits that the trial judge erred in declining to find that the Society was biased against him. He states that there was a clear predetermination by the Society of the end result of Crown wardship with no access and a failure by the Society to properly consider the Appellant father’s plan and assist him with respect to the plan.

[21] In support of his submission, he relies on the assessment of him by Ms. Colakic and Mr. Moriarity, the failure to permit him to enter the program, and the Society’s recommendation for an order of Crown wardship for the child in the initial Protection Application filed with the court.

[22] The submissions with respect to the evidence of Ms. Colakic, Mr. Moriarity, and the program have been addressed above. In terms of the initial recommendation of Crown wardship, at the time of the Protection Application, the Appellant father had recently been released from jail, without housing. After the Application, despite the initial recommendation, the Society thoroughly assessed the father’s plan of care, even requesting more time to do so in October 2013, when it asked for the case to be removed from the assignment court list so that further assessment of the Appellant father’s plan could be done (para. 136).

[23] Further, in her affidavit in chief, Ms. Whicher reviewed the evidentiary basis for her assessment that the child would not be safe in the care of the Appellant father.

[24] There was no compelling evidence of bias by the Society before the trial judge. The Appellant father has failed to demonstrate that the trial judge made a palpable and overriding error by failing to conclude that the Society was biased.

5. The trial judge erred in finding that “every possible resource was provided to the family.”

[25] The Appellant father submits that the trial judge erred in finding that “every possible resource was provided to the family.” The issue with respect to participation in the program has been addressed above. Otherwise, the trial judge’s conclusion was supported by evidence and summarized in detail by the trial judge at paras. 101-104 and 139-141.

6. The trial judge erred in concluding that the Appellant father was unable to sustain a course of mental health treatment with a consistent professional or a consistent course of medication.

[26] The trial judge’s finding that the Appellant father was anxious, overwhelmed, and unable to sustain a course of mental health treatment or a consistent course of medication was well supported by the evidence. The Appellant father admitted his failed attempts to complete mental health programs or sustain consistent psychiatric appointment. He also admitted that he is still not taking his medication regularly and documentary evidence clearly indicated gaps in medication. The Appellant father admitted he went into a rage in the lobby of the Society in June 2013 and three Society witnesses testified that on May 28, 2014 the Appellant father felt angry enough to clench his fists when confronted by the family services worker with the 90 or more police contacts.

[27] There is no merit to this ground of appeal.

7. The trial judge erred in giving too much weight to the Appellant father’s previous criminal record.

[28] The Appellant father submits that the trial judge assigned too much weight to his criminal record, because by the time of trial two years had passed without him having a conviction. The parties agree that the evidence reflects periods of time, including a four year period between April 2003 and March 2007, where there were no convictions. However, this break of 4 years was followed by 12 further convictions (of uttering death threats against the child’s mother) between March 2007 and March 2012.

[29] The Appellant father has not demonstrated how the trial judge made a palpable and overriding error by assigning too much weight to his past criminal record. It is a fact that the Appellant father has a lengthy criminal record for violence against women and for disobeying court orders. There was evidence that the Appellant father had gone lengthy periods in the past with no convictions followed by further numerous convictions over many years. The evidence

sustained the trial judge’s findings that the Appellant father continued to struggle with anger issues in the months and weeks leading up to trial and that he has been unable to sustain a course of mental health treatment with a consistent professional doctor or consistent course of medication. Reading the decision of the trial judge as a whole, the Appellant father’s criminal history was one factor in the constellation of findings made to determine the best interests of the child.

8. The trial judge erred in giving too much weight to the Appellant father’s behavior at a meeting held at the Society on May 28, 2014.

[30] The trial judge accepted the evidence of three Society witnesses that during a meeting on May 28, 2014 at the Society, the Appellant father felt angry enough to clench his fists when confronted by the family service worker with the 90 or more police contacts. The Appellant father has failed to direct the court to any evidence that suggests that the trial judge made a palpable and overriding error in assessing the credibility of the three Society witnesses or in deciding how much weight to give to this evidence.

9. The trial judge erred in concluding that the Appellant father does not really know what a father is.

[31] The Appellant father is particularly troubled by the conclusion of the trial judge at para. 155 that “he does not really know what a father is.” He submits that this conclusion is warranted only in the most grossly deficient examples of parenting. There was no such evidence before the trial judge. The evidence before the trial judge, it is submitted, demonstrates the Appellant father’s commitment to appropriately parenting the child and having the child returned to him.

[32] The trial judge considered what she referred to as the Appellant father’s “extraordinary efforts” to become a father since his first child was born in 2004 and his “tremendous efforts to learn how to become a parent.” She also considered the evidence of his failings despite these efforts, including those with his other two children and the child’s mother’s other children, his inability to integrate education into practice, his failure to control his anger and manage his medication, his inadequate state of housing, his criminal history, his conduct during access visits and his recent refusal to meet with the family service worker. Considering the totality of the evidence and her reasons, it cannot be said that the trial judge made a palpable and overriding error with respect to the question of whether the Appellant father understands what it is to be father.

10. The trial judge erred in refusing to grant an extension of Society wardship pursuant to s. 70(4) of the Child and Family Services Act.

[33] At the time of trial, the child had been in continuous temporary care of the Society for just under 20 months. The case management judge had already extended the time for temporary wardship on October 2, 2013 to permit the Society to investigate the Appellant father’s plan. The trial judge determined that even with a further extension there was no probability that the

Appellant father could address all the concerns. She therefore denied the Appellant father’s request to grant an extension of time pursuant to s. 70(4) of the Child and Family Services Act (paras. 136, 154, 156).

[34] The Appellant submits that the trial judge erred in failing to grant a further extension as a further extension would have permitted the Appellant father’s participation in the program, as recommended by the program’s supervisor, Ms. Arghoshi.

[35] Courts have found that the decision of a trial judge whether to extend the time for Society wardship under s. 70(4) of the Child Family Services Act is a matter of discretion and that it is only reviewable if there has been a palpable and overriding error: Children’s Aid Society of Toronto v. D.J. et al, at para. 47.

[36] Considering the totality of the evidence as set out above, the trial judge concluded despite the extraordinary efforts made by the Appellant father to become a father, there was no probability that he could address the residual concerns, even with a further extension. The evidence with respect to his potential participation in the program was canvassed fully. The Appellant father has not pointed to any evidence sufficient to demonstrate that the trial judge made a palpable and overriding error in declining to grant a further extension order to give him more time to address the protection concerns.

11. The trial judge erred in failing to make an order for access to the Appellant father.

[37] Once an order of Crown wardship is made, there is a presumption against access. Section 59 (2.1) of the Child Family Services Act imposes a two-part test requiring the party seeking access to prove that access is both “meaningful and beneficial” to the child and that the access order will not impair the child’s future opportunities for adoption.

[38] The trial judge correctly reviewed and applied the law on the legal meaning of the phrase “beneficial and meaningful” (para. 164) and found that the evidence fell short of the test for “beneficial and meaningful” (para. 165, 166). In doing so, the trial judge reviewed all of the relevant evidence, including the testimony of Ms. Ashkewe and the Appellant father’s relationship with Ms. Deveaux, the guardian of his other children. The trial judge concluded that the Appellant father could not pass the second prong of the access test because “his anger would prevent him from supporting any permanent placement for this child” (para. 167).

[39] The Appellant has not pointed to any error in the trial judge’s interpretation of the law, nor has he identified any palpable or overriding error in the trial judge’s factual findings in relation to the Appellant father’s connection to the child, his relationship with Ms. Deveaux or his difficulty with authority figures, structure and rules.

12. The trial judge erred in her application of the best interests test to the facts of the case.

[40] The best interests test is set out in s. 37(3) of the Child Family Services Act. Considering the reasons of the trial judge as a whole, in my view, the trial judge carefully and thoroughly

reviewed all of the evidence in the context of the relevant clauses in s-s. 37(3) (para. 159). The trial judge made no error in the interpretation of the legal test or the application of the test to the facts as she found them.

Conclusion

[41] My role on this appeal is to determine whether the trial judge made an error in law or a palpable or overriding error on the facts or the application of the law to the facts. I find no such error. Accordingly the appeal is dismissed without costs. The child, Z.R.T., born […], 2012 shall be placed in a permanent adoptive home without further delay.

CHIAPPETTA J.

Date: April 22, 2015