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, R.S.C. 1990, c. C-11, as amended, and is subject to subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,

(c)

prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(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.

(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.—(3) A person who contravenes subsection 45(8) (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.

Timmins File No. 18895/13 AP

DATE: 2015·IV·23

CITATION: NEOFCS and OCL v. V.C., 2015 ONSC 2671

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NORTH EASTERN ONTARIO FAMILY AND CHILDREN’S SERVICES and OFFICE OF THE CHILDREN’S LAWYER,

Respondents on Appeal (Applicants at Trial),

— AND —

V.C.,

Appellant (Respondent at Trial).

Before Justice Robin Y. Tremblay

Heard on 31 March 2015

Reasons for Judgment released on 23 April 2015

STATUTES AND REGULATIONS CITED

Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subsection 69(6).

Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended], clause 134(4)(b).

Evidence Act, R.S.O 1990 c. E-23 [as amended], section 35 and subsection 35(3).

Family Law Rules, O. Reg. 114/99 [as amended], subrule 23(23), subrule 23(24), subrule 23(25) and subrule 23(27).

CASES CITED

Ares v. Venner, [1970] S.C.R. 608, 73 W.W.R. 347, 14 D.L.R. (3d) 4, 12 C.R.N.S. 349, 1970 CanLII 5, [1970] S.C.J. No. 26, 1970 Cars­well­Alta 80.

Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, 1994 CanLII 83, [1994] S.C.J. No. 37, 1994 Cars­well­Ont 376.

Children’s Aid Society of Toronto v. Sheila Ann C., 2005 CanLII 43289, 143 A.C.W.S. 3d 510, [2005] O.J. No. 4718, 2005 Cars­well­Ont 5932 (Ont. S.C.).

Lydia M.A. Lehoux ............................................................... counsel for the appellant mother, V.C.

Justin J.B. Ellery .......................................................................... counsel for the respondent society

Bernard R. Gosselin ................................................ counsel for the Office of the Children’s Lawyer,

legal representative for the child I.C.

[1] JUSTICE R.Y. TREMBLAY:— On 25 November 2013, Justice Michelle J. Rocheleau of the Ontario Court of Justice ordered that I.B.C. (hereinafter “I.C.”), born in 2011, be made a Crown ward, without access to his mother, for the purpose of adoption. Written reasons were provided by Justice Rocheleau on 2 December 2013.

[2] The mother, V.C., appeals that decision on the grounds that the learned trial judge erred in determining that I.C. was in need of protection and in finding that the least intrusive order available in the best interest of the child is that of Crown wardship without access for the purpose of adoption.

[3] The appeal raises three issues:

1. Did the trial judge err by over-relying on the parenting capacity assessment report of Dr. Daniel Fitzgerald, dated 15 July 2012?

2. Did the trial judge err in not admitting in evidence the mental health out-patient report of Dr. Savalai Manohar, dated 17 April 2012?

3. Whether the fresh evidence the appellant seeks to introduce on this appeal — namely service case notes from the North East Ontario Family and Children’s Services (“NEOFACS”) describing the mother’s interactions with her infant daughter, L.K.-G.C., born in 2014, during supervised visits at NEOFACS and a mental health out-patient report of Dr. Steven Cohen, dated 13 June 2014 — would have resulted in a different outcome at trial or show that the result reached is not in the best interest of the child.

1: OVERVIEW OF THE PROCEEDINGS

[4] I.C. was born 11 weeks premature at Mount Sinai Hospital in Toronto, Ontario in 2011. The child was conceived via artificial insemination. He was transferred to Sudbury, Ontario on 14 April 2011 and to the Timmins and District Hospital on 11 May2011.

[5] The child protection application was commenced on 20 May 2011 and the first appearance on the application was before Justice Martin P. Lambert of the Ontario Court of Justice in Timmins, who ordered that the child be made a temporary ward of the society on a temporary “without prejudice” basis.

[6] I.C. was apprehended upon his release from hospital on 31 May 2011.

[7] On 19 August 2011, Justice Patrick J. Boucher of the Ontario Court of Justice, sitting in Timmins, ordered that I.C. be found in need of protection and further that he be made a ward of the agency for a period of four months.

[8] A status review was commenced on 12 December 2011. On 26 November 2012, I.C. was found to be a child who continues to be in need of protection at a trial management conference conducted by Justice Rocheleau of the Ontario Court of Justice in Timmins. The continuing finding that the child is in need of protection was made on consent.

[9] The trial began on 4 December 2012. It continued on three separate days, namely 20 April 2013, 17 October 2013 and 25 November 2013.

2: STANDARD OF REVIEW

[10] The standard of review of an appellate court was discussed in Children’s Aid Society of Toronto v. Sheila Ann C., 2005 CanLII 43289, 143 A.C.W.S. 3d 510, [2005] O.J. No. 4718, 2005 Cars­well­Ont 5932 (Ont. S.C.), at paragraphs [10] and [12]:

[10] An appellate court may interfere with a trial judge’s findings only if there has been a “palpable and overriding error” that constitutes a substantial wrong or miscarriage of justice. It is the trial judge who is in the most advantageous position to determine the best interests of the child. . . .

[12] In family law 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. . . .

3: ANALYSIS

3.1: Finding of Child in Need of Protection

[11] Counsel for the appellant indicated at the hearing of the appeal that the appellant was no longer appealing the finding that the child was in need of protection as this determination had been made on consent of the parties on 26 November 2012.

3.2: Did the Trial Judge Err by Over-Relying on the Parenting Capacity Assessment Report of Dr. Daniel Fitzgerald, Dated 15 July 2012?

[12] It should to be noted at the onset that there was no competing parenting capacity assessment report before the court at the trial.

[13] This court finds that Dr. Fitzgerald possessed the necessary qualifications and experience to conduct the parenting capacity assessment report. He is a psychologist with expertise in child psychology and clinical psychology with experience working with children, adolescents, adults and families. He had performed approximately 150 parenting capacity assessments at the time of his testimony.

[14] This court finds that the appellant has failed to demonstrate that the methodology followed by Dr. Fitzgerald was flawed in any material way or that the factual basis upon which his opinion was based was incorrect.

[15] Quite to the contrary, this court finds that the factual background and history contained in the report were consistent with the evidence of the NEOFACS workers and the appellant’s own evidence.

[16] Furthermore, this court finds that Dr. Fitzgerald’s assessment was thorough and included a review of the information provided by NEOFACS and I.C.’s foster mother; an interview of the appellant over a two-day period; the administration of a series of psychological tests to assess the appellant’s cognitive functioning, personality organization and parenting style; an interview with the appellant’s Canadian Mental Health Association (“CMHA”) counsellor, Tina Lively; a review of the staff notes from the Pathway to Family Growth program and his own observations of an access visit.

[17] The trial judge was therefore certainly entitled to give weight to the opinion of Dr. Fitzgerald.

[18] Although the trial judge followed the recommendations of the parenting capacity assessor, she clearly did not abdicate her fact-finding responsibilities to the assessor. This court finds that her findings about the child’s needs and the appellant’s parenting abilities were based on her consideration of the whole of the evidence, including Dr. Fitzgerald’s assessment, the evidence of numerous NEOFACS workers who observed visits and worked with the appellant and I.C. over a period of more than 2 years, the evidence of the appellant’s support worker through the CMHA, Tina Lively, and the appellant’s own evidence.

[19] Furthermore, the trial judge properly assessed the plan of care put forward by the appellant. In fact, the trial judge went as far as adjourning the trial on 17 October 2013 and requesting that the parties make inquiries whether the persons mentioned in the appellant’s testimony as potential support persons (her father and Lynn Mongeon) could in fact assist in raising I.C. The parties reported back to her on this when the trial resumed on 25 November 2013.

[20] This court finds that the trial judge did not over-rely on the parenting capacity assessment report of Dr. Fitzgerald, dated 15 July 2012. The trial judge’s findings were based on her consideration of the whole of the evidence presented in the course of the trial.

3.3: Did the Trial Judge Err in Not Admitting in Evidence the Mental Health Out-Patient Report of Dr. Savalai Manohar Dated 17 April 2012??

[21] The mental health out-patient report of Dr. Manohar, dated 17 April 2012, was relevant as it provided valuable information about the mental health make-up of the appellant. This report would have been admissible as evidence at the trial if properly introduced.

[22] This court finds that trial counsel for the appellant did not attempt to introduce the report as evidence as is apparent from reading the relevant excerpt of the transcript of the evidence of V.C., dated 17 October 2013 at pages 124 to 126:

Q: Who else have you seen?

A: I’ve seen Dr. Manohar and Dr. Fitzgerald.

Q: Do you recall what Dr. Manohar — did he diagnose you with something. Dr. Manohar?

A: No. I don’t have the actual report in front of me. He basically felt that most of what I was dealing with was related to circumstance.

Q: So, he doesn’t believe that you suffer from bipolar.

A: He didn’t say that. He just — I don’t have the report in front of me.

Ms. Mendonca: Perhaps, if I can provide her with the report. It’s from the doctor, just so she can see the diagnosis. My friends have copies of the report.

THE COURT: Report for what purpose?

Ms. Mendonca: From Dr. Manohar with respect to her diagnosis. Just for the purposes of her . . .

THE COURT: Well, I do not know if there is any objection. I mean, the report is not in evidence. I do not know that she can testify or give evidence as to what is in someone else’s report.

Mr. Gosselin: Especially when it’s an opinion.

THE COURT: I do not think that it is proper. No one was getting up, but I just do not think it is a proper way of getting whatever evidence you think you want to get out. I do not think it is the proper way to do it.

Ms. Mendonca: So, you were assessed by Dr. Manohar.

[23] There is no indication that the appellant added the report to the trial record or that she obtained the consent of the opposing parties to admit the report as evidence in advance of the trial or during the trial.

[24] This court rejects the appellant’s argument that Dr. Manohar’s report could have been introduced, pursuant to section 35 of the Evidence Act, R.S.O 1990 c. E-23. That statutory provision does not permit the introduction of a report containing an expert opinion such as Dr. Mahohar’s report. In any event, seven-days’ notice to the other parties of the appellant’s intention to file the report would have been required under subsection 35(3).

[25] While the report may have been admissible at common law (Ares v. Venner, [1970] S.C.R. 608, 73 W.W.R. 347, 14 D.L.R. (3d) 4, 12 C.R.N.S. 349, 1970 CanLII 5, [1970] S.C.J. No. 26, 1970 Cars­well­Alta 80), trial counsel for the appellant did not attempt to do so as I have concluded previously. If the report had been admitted at common law, Dr. Manohar should have been available for cross-examination. The transcript of the trial proceedings suggest that he was not under subpoena or readily available.

[26] Furthermore, the appellant did not attempt to call Dr. Manohar as a witness. Even if counsel failed to comply with subrules 23(23), (24) and (25) of the Family Law Rules, O. Reg. 114/99, as amended, she could have requested that the trial judge allow the calling of the expert, pursuant to subrule 23(27). This was not done.

[27] This court finds that counsel for the appellant either tried to request permission of the court to use the report to refresh her client’s memory or to have the appellant testify as to the contents of the report. In both instances, this court finds that the trial judge’s ruling not to allow the appellant to review Dr. Manohar’s report and to testify as to its contents was an appropriate one.

[28] Counsel will normally ask the trial judge for permission to show the witness a transcript or other document recording the witness’ prior statement or testimony in order to refresh his or her memory. In this case, the document in question was a report from a psychiatrist recording his own observations and opinions in regards to the appellant. It was certainly open to the trial judge to refuse to allow the witness to use that particular document in order to refresh her memory.

[29] The trial judge was also clearly concerned that allowing this request would have resulted in the admission of hearsay evidence — i.e., the out-of-court opinion of Dr. Manohar being introduced for the truth of its content through another witness. This was a live concern, since the report had not otherwise been tendered into evidence.

[30] Furthermore, Dr. Manohar’s report included opinion evidence. Such evidence is not admissible unless it is:

1. relevant;

2. necessary to assist the trier of fact;

3. absent any exclusionary rule; and

4. tendered by a properly qualified expert.

It would have been improper for the opinion evidence to be tendered through any other witness than the expert. The trial judge’s ruling was therefore well-founded at law.

[31] In any event, this court finds that, even if it had been admitted, Dr. Manohar’s report would not have had any impact on the outcome of the trial. Dr. Manohar concluded that, from a psychiatric point of view, the appellant did not pose any risk to herself or to the child. However, he clearly left the issue of assessing her parenting skills to others at page 2 of his report:

I leave it to the people in the community to comment about her parenting skills. She needs to be observed in the presence of her infant child. I understand that Ms. Lively has seen her look after her son. People in the community are probably better equipped to comment about her parenting skills.

[32] Observations of the appellant’s parenting skills, while in the presence of the infant child, are exactly the type of evidence that the trial judge heard in the course of the trial from the NEOFACS workers, Tina Lively, Dr. Fitzgerald and the appellant herself. Dr. Manohar’s report supports the fact that this is the type of evidence that better allows one to assess the issue of the appellant’s parenting skills. Dr. Manohar’s report therefore does not contradict in any way the evidence of the various workers who observed the appellant’s interacting with her child or the conclusions of Dr. Fitzgerald.

[33] Overall, I find that the evidence tendered at trial fully supported the disposition made by Justice Rocheleau and that there was no palpable and overriding error on her part.

3.4: Would the Appellant’s Fresh Evidence, if Admitted, Have Resulted in a Different Outcome at the Trial or Does It Show That the Result Reached Is Not in the Best Interest of the Child?

[34] This court finds that it can properly receive the notes from NEOFACS and Dr. Cohen’s report, dated 13 June 2014, into evidence in this appeal, pursuant to subsection 69(6) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, and clause 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended. It is further satisfied that the test set out in Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, 1994 CanLII 83, [1994] S.C.J. No. 37, 1994 Cars­well­Ont 376, for the admissibility of fresh evidence has been met.

3.4(a): Case Notes from NEOFACS Detailing the Appellant’s Interactions with Her Infant Daughter, L.C.

[35] The NEOFACS case notes relate to the appellant’s second child, L.K.-G.C. (hereinafter “L.C.”), born in 2014, who is the subject of a separate proceeding under the Child and Family Services Act.

[36] The notes from a number of NEOFACS workers demonstrate that the appellant, in her supervised visits with L.C., is engaged and attentive and able to respond to her cues. The overall picture in terms of the appellant’s visits with L.C. is certainly a positive one.

[37] This court finds however, that these positive supervised visits with an infant child do not translate in a conclusion that she now has the capacity to independently parent a four-year-old child who is at a higher risk of developmental or learning needs. This fresh evidence would therefore not have altered the outcome of the trial and does not show that the result achieved is not in the best interest of the child.

3.4(b): Dr. Cohen’s Report, Dated 13 June 2014

[38] Dr. Cohen’s report, dated 13 June 2014, indicates that the appellant suffers from an adjustment disorder with depressed mood, chronic and that there is no evidence of personality disorder. He opines as follows at page 2 of his assessment report:

There is no indication from a psychiatric perspective that [Ms. V.C.] would not be able to care for her children. While I would defer, of course, to others, such as the leaders of the courses in parenting, with respect to her abilities and insights in that endeavour, there is no diagnosis or psychiatric reason that she would not be able to parent her children. She was able to discuss expected parental stresses openly and fairly insightfully, and stated that she would rely on supports as needed, who are in place.

[39] This court finds that Dr. Cohen’s report does not contradict Dr. Fitzgerald’s parenting assessment report or the conclusions reached by Justice Rocheleau.

[40] Neither Justice Rocheleau nor Dr. Fitzgerald stated that the appellant could not parent for psychiatric reasons.

[41] Justice Rocheleau primarily cited the length of time the child has been in care, the appellant’s demonstrated lack of cognitive ability and her lack of support in the community in making the order for Crown wardship without access.

[42] Dr. Fitzgerald concluded that the appellant’s cognitive limitations, emotional challenges and personality constraints are very likely to present a significant risk if she were to be independently raising her son. He also specifically addressed the fact that she suffers from an anxiety disorder and major depression.

[43] Dr. Cohen’s report does not address the appellant’s cognitive limitations, which is the main area of concern raised by both Justice Rocheleau and Dr. Fitzgerald. His report confirms Dr. Fitzgerald’s finding that she suffers from depression. Finally, his report incorrectly refers to the appellant’s having supports on which she can rely. The evidence at trial rightfully convinced Justice Rocheleau that there was no such support system in place for the appellant and that there was no feasible alternative plan presented by her to the Crown wardship no-access order sought by the society.

[44] Finally, Dr. Cohen defers an assessment of her parenting skills to others with expertise in the area. The trial revealed that these people, NEOFACS, Pathways to Family Growth — Baby Program and Dr. Fitzgerald, have all raised serious concerns with respect to the appellant’s parenting skills.

[45] As a result of the above, this court finds that the report from Dr. Cohen, dated 13 June 2014, does not contradict the basis for the determination made by the trial judge nor would it have altered the outcome of the trial. It does not show either that the result achieved is not in the best interest of the child.

4: CONCLUSION

[46] This court finds that the trial judge did not make a palpable or overriding error. Her decision was well supported by the evidence and should not be interfered with. Furthermore, the fresh evidence adduced by the appellant would not have resulted in a different outcome at trial, nor does it show that the result achieved is not in the best interest of the child.

[47] This court agrees with the trial judge that, in the absence of any other less restrictive option, the best interest of the child is that of Crown wardship with no access for the purpose of adoption. I.C. is now four years old and he will hopefully have the opportunity to move out of the foster care system and be adopted in the near future.

[48] The appeal is dismissed.

Signed “Justice Robin Y. Tremblay”

Released: 23 April 2015