CITATION: Children’s Aid Society of Toronto v. S.C., 2015 ONSC 2702

COURT FILE NO.: FS-14-00019785-0000

OCJ Court File No. C57962/12

DATE: 20150424

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 and is subject to one or more of subsections 48(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) Prohibition: identifying child. – 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 or 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) Idem – a person who contravenes subsection 45(8) or 76(11) (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.

CITATION: Children’s Aid Society of Toronto v. S.C., 2015 ONSC 2702

COURT FILE NO.: FS-14-00019785-0000

OCJ Court File No. C57962/12

DATE: 20150424

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHILDREN’S AID SOCIETY OF TORONTO, Applicant (Respondent on the appeal)

A N D:

S.C., Mother and I.K, Father, Respondents (Appellants on the appeal)

BEFORE: MESBUR J.

COUNSEL: S.C. Mother and I.K. Father, appellants, for themselves

Katie Skinner, for the Respondent Society

HEARD: April 13, 2015

E N D O R S E M E N T

Introduction:

[1] S.C. and I.K. are the mother and father of J. born on […], 2012. The Children’s Aid Society of Toronto (CAST) apprehended J when he was about four months old. He has been in the Society’s care since then.

[2] The case came on for a “blended” hearing in the Ontario Court of Justice over six days in late June and late July of 2014. A blended hearing is one in which the trial judge hears all the evidence necessary to first determine whether a child should be found in need of protection (the “finding” phase), and second, if a protection finding is made, to decide what the appropriate disposition should be (the “disposition” phase).

[3] In lengthy written reasons dated October 15, 2014 the trial judge first made a finding that J was a child in need of protection under s. 37(2) of the Child and Family Services Act. (CFSA). First she considered s. 37(2)(b) which reads:

(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[4] Then trial judge also considered s. 37(2) (g) of the CFSA which says a child is in need of protection where there is a risk that the child is likely to suffer emotional harm demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development [^1] and there are reasonable grounds to believe that this emotional harm results from the actions or failure to act on the part of the child’s parents.

[5] Having made the protection finding, the trial judge then turned to the second aspect of the hearing, namely the appropriate disposition for J, as a child in need of protection. She decided the appropriate disposition was to make J a Crown Ward, with no access, so he can be adopted.

[6] The parents appeal from both the finding and disposition. They suggest the trial judge made many errors. They take the position J should be returned to their care, or alternatively, to the care of his paternal grandparents.

[7] For the reasons that follow, I dismiss the appeal.

The grounds for appeal and standard of review:

[8] The parents assert a number of grounds for appeal. Of the eleven listed grounds for appeal in their notice of appeal, all state the trial judge misapprehended the evidence and made errors in her factual findings. They also suggest the trial judge’s reasons contain, in paragraphs 21-99 “Misleading, Speculative, Contradicting, Inaccurate, Discriminative, Oppressive, Irrelevant, Deliberate act and Misinformation of facts. All cases cited are neither applicable nor similar to this case.”[^2]

[9] The Notice of Appeal goes on to suggest that the court “based its decision solely on the erroneous Affidavits Prepared and Presented by CAST … few weeks to the commencement of the Trial while discarding the access notes of over 200 Supervised visits of well paid professionals within a periods of 24 months … Furthermore legal forms were also signed by Appellants erroneously due to undue influence, Pressure, Unknowing or not having full knowledge of what were signed.”[^3]

[10] In sum, the essence of the primary grounds for appeal is that the trial judge made errors in her findings of fact. The secondary grounds for appeal deal with issues of undue influence by their counsel and failure to understand the nature and consequences of what they signed.

[11] When it comes to appellate review of a trial judge’s factual findings, the appeal court must give significant deference to those findings. Factual findings can only be set aside if the trial judge made an “overriding and palpable” error.[^4] In Housen v Nikolaisen Justice Iacobucci explained that a “palpable error” is one that is “plainly seen.” The reason appeal courts generally defer to a trial judge’s factual findings is the presumption that trial judges are just as competent as appellate judges to ensure that disputes are resolved justly. Another compelling reason for deference is that the trial judge is the one who has had the opportunity of actually hearing and observing the witnesses at trial. The trial judge is thus in the best position to decide issue of credibility and what weight should be given to any particular piece of evidence.

[12] While Housen is not a case that deals with child protection issues, its statements about appellate review of a trial judge’s factual findings apply in every kind of case. The statements of the Supreme Court of Canada in Housen bind this court when it comes to deciding whether the trial judge made any errors in her factual findings. The court can only overturn those factual findings if the trial judge made a palpable and overriding error in coming to those findings.

[13] I begin, then, with a discussion of the trial judge’s factual findings. As to the secondary grounds for appeal, these deal with issues of undue influence and failure to understand the nature and consequences of what the parents signed. This ground of appeal seems to raise issues of competency of counsel, and competency of the parents to understand what they were signing. I will deal with these secondary grounds once I have addressed the larger issue of the trial judge’s factual findings.

Factual background and the trial judge’s factual findings:

[14] The trial judge outlined the facts of this case in great detail, in her careful and complete reasons for judgement. I will repeat only what is necessary to put this appeal in context.

[15] The parents met on a bus, and married on February 14, 2012 after the mother became pregnant. They have lived together ever since then, apart from a very brief period of living apart.

[16] The Society became involved with the mother while she was pregnant. This involvement arose as a result of a referral from the mother’s previous group home. The Society had first come to know the mother when she was a child. Mother herself had been in Society care and had been in a group home. A Society Pregnancy and After Care Worker (PAC Worker) testified the referral source raised some concerns about mother’s ability to parent a child, as well as concerns about potential family violence between the mother and father. The PAC worker had contact with mother during her pregnancy.

[17] In May of 2012, mother contacted the PAC Worker and reported violent behavior on the father’s part. The worker called the police. This resulted in father’s arrest and assault charges. Although the mother and father separated briefly, they reconciled, and have remained together since then. They both deny any domestic violence in their household. Although the issue of family violence was a significant issue of concern for the Society, the trial judge was unable to find sufficient evidence to corroborate their concerns in this regard.

[18] After the baby was born in […] of 2012, the Society continued its involvement. Society workers visited the family in the home. The home was clean, with appropriate facilities for the baby. The baby appeared healthy and was gaining weight. He was meeting appropriate milestones. The Society worker felt the father was able to care for the baby appropriately. The Society worker observed, however, that mother was very dependent on father regarding parenting the baby, and was not very skilled at parenting herself. A greater concern was mother’s inability to control her temper, and yelling in front of the newborn. One of the workers testified at trial that yelling was mother’s “general demeanor”, as the trial judge put it. Although the worker spoke to the parents about the negative impact the yelling had on the baby, mother was unable to change her behavior.

[19] Because of the Society’s quite serious concerns about mother’s ability to parent, they made it very clear to the parents that father was to be the primary caregiver for the baby, and mother was not to be left alone with him. The parents apparently agreed with this stipulation.

[20] In November of 2012, however, the Society apprehended the baby. The Society’s protection concerns included domestic violence, mother’s ability to parent given her intellectual challenges coupled with some apparent mental health issues and her inability to regulate her emotions. The Society felt this last issue resulted in mother’s yelling and aggressive behavior in J’s presence, to J’s detriment. The trial judge found that mother was unable to control her temper and yelled in front of the child. She said mother did this on at least three separate occasions before the Society apprehended the child. The evidence at trial amply supports the trial judge’s factual findings in this regard. The Society was also concerned that notwithstanding the parents’ undertaking that mother would not be left alone with the baby, there had been several instances where this had occurred.

[21] The Society also had concerns about the parents’ level of cooperation with the Society, particularly the fact that father had left mother alone with the baby on occasion, even though he had agreed he would not do so.

[22] After the baby was apprehended, he was placed in foster care. He has remained with the same foster mother since then. He has thus been in care for 29 months. Since J has been in care, the parents exercised supervised access to him. Their access was regular. They arrived on time, or early. They brought appropriate food and toys for the visits. Access initially went quite well. The supervisors observed the access visits, and made notes of them.

[23] In all, the trial judge heard evidence from six access supervisors. On the basis of this evidence, the trial judge concluded that it was the father who did the bulk of the child care during access visits, and not the mother. The trial judge accepted the evidence that father’s parenting was generally positive. He attended various parenting programmes, and was actively involved in them. The evidence supports these factual findings.

[24] As to the mother, the trial judge accepted the evidence of Society workers and access supervisors. They observed the mother had some difficulty meeting the baby’s physical needs. She had difficulty solving common parenting problems, such as how to put the baby’s coat on, when he was uncooperative.

[25] Of more concern was mother’s inability to regulate her emotions and process information. She was often angry and hostile around access supervisors, raising her voice around the baby, even when she was repeatedly told not to. On occasion mother responded inappropriately. On the positive side, however, mother expressed her love and affection for her son appropriately. She was able to support his language development. Again, the evidence amply supports these factual findings, both positive and negative.

[26] Access visits with both parents progressed quite well, to the point where the Society was considering a plan to reintegrate J with his parents. Access visits were moved to the parents’ home. The parents began to have longer, unsupervised visits at home. These continued to go well from December of 2013, through to February of 2014.

[27] In February of 2014, however, things changed. The Society received a telephone call from a woman named L.W. L.W. reported to the Society that she had received what she described as a very disturbing call from the mother. The mother and L.W.’s autistic son had met at a special needs school they both attended, which is how L.W. came to know the mother. L.W. testified that the mother had told her the father was physically and emotionally abusive. Mother reported she had been raped and had a bloody nose. Mother called a second time. Although mother asked L.W. not to tell anyone, L.W. felt she needed to do something. L.W. did not know what to do. First she contacted someone at the special needs school. On their advice, she then contacted the Society and reported what mother had told her.

[28] Although the mother denied making any call, and even denied knowing L.W., the trial judge accepted L.W.’s evidence and rejected the mother’s on this issue. The trial judge was entitled to do so, particularly in light of her overall finding that mother was not a credible witness at all.

[29] As a result of this call, the Society changed its position. Instead of focusing on reuniting the family, the Society decided it would seek an order for Crown Wardship of J. They also decided to have access visits return to the Society’s office, under the Society’s supervision. Supervised access began again at the Society. Mother had increasing difficulties with the Society during access visits, both in May and July of 2014. An incident in July resulted in mother’s being charged with assault as a result of an altercation with a Society worker.

[30] The appellant parents suggest the trial judge based her decision solely on “erroneous affidavits” prepared and presented by the CAST. The affidavits represented the evidence in chief of the affiants. All affiants were vigorously cross-examined by counsel for each of the parents, who were separately represented. The trial judge herself asked probing questions of witnesses, and then permitted all counsel to question the witnesses further if they had any additional questions arising out of the court’s questioning. I cannot conclude the affidavits or evidence were “erroneous”, and accept the trial judge’s findings of fact flowing from them.

[31] The appellants suggest that the trial judge ignored or disregarded access notes from professionals who supervised over 200 access visits. The trial judge heard evidence from six of the access supervisors. One of the supervisor testified at length about the 60 or 70 access visits he alone supervised. I cannot conclude the trial judge ignored or disregarded evidence about access visits. To the contrary, she considered and commented on a great deal of it, describing both the strengths and weaknesses each of the parents displayed during access visits.

[32] The trial judge’s factual findings are all amply supported by the evidence. She made no overriding or palpable error in coming to those factual findings.

[33] Although the parents did not specifically raise an issue of whether the trial judge applied the law correctly to the facts as she found them, in the interests of completeness, I will briefly address that issue as well.

The law and the trial judge’s application of it:

[34] The trial judge recognized the two separate issues she needed to address in this blended hearing. She properly identified the first as deciding whether there was sufficient evidence to support a finding that J is a child “in need of protection”.

[35] In coming to her conclusion J is a child in need of protection, the trial judge quite properly considered the relevant criteria in s. 37(2) of the CFSA. This is the section that sets out the circumstances in which a child is in need of protection. As I have stated above the trial judge focussed on evidence the child had suffered emotional harm, evidenced by some anxiety around some of mother’s behavior, and his delayed development, as described by both the foster mother, and more importantly, by Dr. Smile, the expert retained to assess J.

[36] The trial judge properly considered all the evidence in coming to her conclusion J met the necessary criteria to be found a child in need of protection.

[37] Having made that finding, the trial judge properly instructed herself to move to the disposition phase of the hearing, and considered all the twelve enumerated factors in s. 37(3) of the CFSA in deciding what disposition was in J’s best interests. That section requires the court to look at twelve different criteria relevant to best interests, and to take into consideration those of them the court considers relevant to the particular child in question.

[38] The trial judge analysed each of them, having regard to J’s best interests, as required by s. 37(3) of the CFSA. In this case, the trial judge considered all the criteria in relation to both the Society’s and the parents’ plan of care for J.:

• The child’s physical mental and emotional needs, and the appropriate care or treatment to meet those needs;
• The child’s physical, mental and emotional level of development;
• The child’s cultural background;
• The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;
• The religious faith, if any, in which the child is being raised.
• The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
• The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.
• The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
• The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
• The child’s views and wishes, if they can be reasonably ascertained.
• The effects on the child of delay in the disposition of the case.
• The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
• The degree of risk, if any, that justified the finding that the child is in need of protection.

The court is also directed to consider any other relevant circumstance.

[39] The trial judge concluded that J may have special needs. She was concerned about the parents’ ability to meet those needs, particularly the mother whose behavior was volatile, and who exhibited an inability to work cooperatively with professionals. The trial judge concluded the Society’s plan met these needs better than the parents’.

[40] The trial judge accepted Dr. Smile’s evidence that J has some delays. She also accepted the foster mother’s evidence in this regard. The trial judge concluded J may have special needs and there are concerns about the parents’ ability to meet those needs, particularly in light of mother’s volatility and inability to work cooperatively with professionals. The trial judge concluded the society’s plan addressed J’s needs better than the parent’s plan.

[41] The trial judge then turned her mind to J’s physical, mental and emotional level of development. She accepted both Dr. Smile’s and the foster mother’s evidence that J has delays, and has some issues around his development and behavior. The trial judge concluded J needs a parent who can meet his emotional and developmental needs. She recognized the possibility J may require additional supports. She noted that J is young and needs a resolution of the litigation and the chance of a permanent placement. The trial judge concluded the Society’s plan addressed this issue better than the parents’ plan.

[42] As to J’s cultural background, since the father is Nigerian and Muslim, the trial judge concluded the parents’ plan addressed this issue better than the Society’s. She also found the parents’ plan addressed the child’s religious faith better than the Society’s.

[43] When she considered the importance of the child having a positive relationship with a parent and a secure place as a member of a family, the trial judge concluded J knows his parents and generally responds positively to them during access visits. She concluded both the Society’s plan for adoption and the parents’ plan to have J return to them would adequately address this. The trial judge also concluded that J is happy to see his parents, enjoys his time with them and has some emotional connection to them. She found he also has an emotional connection with his foster mother. In coming to these conclusions, the trial judge properly considered the child’s relationships and emotional ties to a parent, sibling, relative other members of the child’s extended family or member of the child’s community.

[44] The trial judge then turned her mind to the importance of continuity in J’s care and the possible effect on him of disrupting that continuity. She found his primary connection is to his foster mother, although he does have a relationship with his parents. She concluded that J is emotionally healthy and would be able to transition well, whether that transition was to his parents or to an adoptive family. The evidence amply supports these conclusions.

[45] When she considered the relative merits of the Society’s plan and the parents’ plan, she found the Society’s plan for J’s adoption to have the most merit.

[46] The trial judge did not consider J’s views and wishes, given his young age.

[47] The trial judge was required to consider the effects on J of delay in disposition of the case. She found it important that the disposition occur reasonably soon, since J had already been in care for 20 months at that point. He has now been in care for 29 months.

[48] The trial judge then considered any risk to J of being removed from, kept away from, returned to or allowed to remain in the care of a parent. She concluded, on the basis of her evidentiary findings, J would suffer harm if returned to live with his parents. She characterized the risk to J as reasonably high when he was initially apprehended. She found there was no change in mother’s ability to modulate her behavior or control her outbursts since them. She concluded the risk to J remained unchanged.

[49] The trial judge then considered the “least intrusive alternative” for J, namely a supervision order. She decided that would not be appropriate, give the evidence and the history of the mother’s behavior. That decision is amply supported by the evidence.

[50] The trial judge then considered the possibility of kin or community placement. She concluded there was no reasonable possibility of that, since the only kin plan the parents presented involved the father’s parents. They are failed refugee claimants, and live in Nigeria.

[51] The trial judge then noted that the society provided extensive service to the family.

[52] The next issue the trial judge addressed was whether she should grant an extension of Society wardship, instead of imposing Crown wardship. She noted any extension must be made with regard to the child’s best interests. She set out the applicable law in relation to this issue [^5] and determined it would not be in J’s interests to have a further extension. She came to this conclusion based on her finding “[m]other has not been able to use resources or to change her behavior and if anything, her behavior is worse now than at the time of the apprehension. There is no reasonable prospect of any change or improvement.”

[53] As a result, the trial judge determined Crown Wardship was the appropriate disposition for J. She came to this determination after carefully finding facts and applying the appropriate legal principles to those facts.

[54] The trial judge was in the unique position of having had the opportunity to hear all the evidence and observe all the witnesses, particularly the parents. She was in the best position to come to these conclusions on the basis of her assessment of all the evidence.

[55] Lastly, the trial judge turned her mind to the question of whether the parents should continue to have access to J. She carefully reviewed the applicable law, and particularly s. 59(2.1) of the CFSA, including recent amendments to it.

[56] The trial judge correctly concluded there is a presumption against access where a child has been made a Crown Ward. The parents have the onus to rebut that presumption. They must show that access would be both “beneficial and meaningful” to the child, AND would not impair a child’s future opportunities for adoption. The trial judge recognized that J knows his father, has regular access with him and enjoys the access. While there is some benefit to the access, the trial judge noted the contact has been limited, and primarily supervised. The trial judge had concerns about mother’s interactions with the child, and mother’s volatile behavior. The trial judge concluded that continued access was not “beneficial and meaningful” within the meaning of the statute, and its subsequent interpretation in the case law. Her analysis was correct.

[57] The trial judge recognized that father and mother have quite different abilities to parent J. In fact, the trial judge recognized many of father’s parenting strengths. She concluded he is able to parent. While his parenting is not perfect, she determined it to be “good enough”. The trial judge stated she would consider returning J to father if he were willing to parent on his own. Father was not prepared to do so. The trial judge asked him if he would be prepared to parent J on his own, and he refused. Effectively, the trial judge was asking the father to choose between his child and his wife. He was not prepared to make that choice, and the trial judge was left with the dilemma of considering J’s future if he were to be returned to the care of both parents.

[58] The problem is the mother, and whether father would be able to parent J with the mother. The mother is unable to control her behavior. Her outbursts are harmful to J. The trial judge recognized father is better able to manage mother’s behavior than Society workers. She concluded, however, that the plan to have father parent J with the mother would not be the “least intrusive placement consistent with the child’s best interests.”

[59] The trial judge’s factual findings are amply supported by the evidence. She applied the law properly to those facts. Her conclusions cannot be set aside on this basis.

[60] This leaves the parents’ secondary grounds of appeal, and whether these grounds provide any basis to set aside the trial judge’s decision.

The secondary grounds of appeal:

[61] The parents assert that they signed their proposed plan of care under duress from their respective lawyers, and without knowing or understanding what they were signing. There is no evidence to support these assertions, or any suggestion counsel were not competent.

[62] In any case, the parents filed a new plan of care at the appeal hearing. The primary difference between this plan of care (which of course is not technically admissible on this appeal) and the one filed at trial is the proposed kinship plan which would have the father’s parents as the alternate caregivers, and have the child live with his paternal grandparents in Benin City, Nigeria.

[63] Although this proposal was not formally before the court at trial, the trial judge nevertheless considered the possibility of the father’s parents providing an alternate care plan for the child. She stated at paragraph 40 of her reasons:

His parents are currently visiting in Canada and would be a support for him. In fact, his parents were prepared to put forward a plan and this did not happen because they are failed refugee claimants whose care is currently under appeal and their ability to remain in Canada is unclear.

[64] The father’s parents have sworn an affidavit to support the “new” plan of care. It was sworn in Nigeria on December 29, 2014. They depose, among other things:

That, it is in our Culture and Religion Doctrines that blood related Child live and grown up with his/her family members/relative either home or abroad especially when they are alive, it is a Taboo to our Culture and Religion and Not in our Cultural practice and Religion Doctrines for our Child to live or grows up with Strangers. [emphasis in original]

That, it is the best interest of [child’s name omitted] born […], 2012 to know his family members and his origin.

That, instead of [J] to be adopted to stranger he should be sent back home to us his Grand Parents here in Nigeria.

[65] I do not see this as a viable kinship plan. The grandparents are not in Canada, and are unlikely to relocate here. There was no proper kinship plan of care before the trial judge, and there is none now. There is no basis to set aside the trial decision on this basis.

Disposition:

[66] In her careful and detailed reasons, the trial judge first made the necessary factual findings to decide whether J is in need of protection, and second to determine the least intrusive alternative for him, in his best interests, if he was found in need of protection. The evidence supports all of her findings.

[67] Having found J should be made a Crown Ward, the trial judge then considered whether there should be parental access or not. She properly identified the parents’ onus in this regard, reviewed the relevant evidence, and concluded the parents had not met their statutory burden to support an order for access. Accordingly, the trial judge’s decision is fully supported in fact and in law.

[68] For these reasons, the appeal is dismissed. No order as to costs.

MESBUR J.

Released: 20150424

[^1]: These are the criteria described in s. 37(2) (f)(i),(ii),(iii),(iv) and (v)

[^2]: Notice of Appeal, paragraph 11

[^3]: Notice of Appeal

[^4]: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235

[^5]: See paragraphs 85-99 of her Reasons for Decision