SUPERIOR COURT OF JUSTICE - ONTARIO

PUBLICATION BAN PURSUANT TO THE CHILD AND FAMILY SERVICES ACT

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.

COURT FILE NO.: FS-14-19235

DATE: 20150609

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s Aid Society of Toronto, Applicant (Respondent on Appeal)

AND:

L.G., Respondent (Appellant on Appeal)

BEFORE: Penny J.

COUNSEL: Michelle Cheung for the Applicant (Respondent on Appeal)

Veena Pohani for the Respondent (Appellant on Appeal)

HEARD: June 4, 2015

Reasons

Overview

[1] This is an appeal from the January 10, 2015 decision of Justice C. Jones of the Ontario Court of Justice which made K.H., a child born […], 2010, a Crown ward without access by the mother, L.G.

[2] The trial took place over 12 days in May/June 2013. The trial judge heard evidence from 18 witnesses.

[3] The essence of the CAS case for Crown wardship was that:

(a) L.G. engaged in repeated relationships involving domestic violence which put the child at risk of physical and emotional harm; and

(b) L.G. was unable to regulate her anger and/or to place the child’s needs ahead of her own resulting, among other things, in the mother’s inability to come to grips with her problems and a confrontational, antagonistic relationship with the CAS.

[4] The appellant raised numerous grounds of appeal in her notice of appeal but in her factum and in oral argument, the appellant relied on two basic grounds of appeal. The two issues raised as constituting grounds for overturning the decision of the trial judge are:

(1) the trial judge made palpable and overriding errors of fact in her assessment of the alleged failure of the CAS to discharge its duties under s. 15(3) of the Child and Family Services Act to provide guidance, counselling and other services to the child’s family for the prevention of circumstances requiring the protection of the child; and

(2) the trial judge made palpable and overriding errors of fact in her decision not to exercise her discretion under s. 70(4) of the CFSA to extend the period of society wardship for an additional six months.

[5] I do not think the appellant has made out palpable and overriding errors of fact. For the reasons that follow, the appeal is dismissed.

Threshold for Review

[6] The parties agree on the relevant threshold of review. An appeal is not a retrial. The role of an appellate court is to review the reasons in light of the arguments of the parties and the relevant evidence. On matters of fact, the appellate court cannot interfere unless the trial judge has made a “palpable and overriding error.” In the context of this case, a “palpable” error would be a lack of any evidence to support the findings of the trial judge, or a misapprehension of the evidence, on a relevant issue. An “overriding” error is one which leads to a wrong result, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[7] On matters of fact a high standard of deference must be given to the trial judge. Where a factual finding is grounded in an assessment of credibility, the trial judge is overwhelmingly advantaged. The weight to be assigned to various pieces of evidence is essentially the province of the trial judge. The trial judge is particularly advantaged as a result of having extensive exposure to the entire factual nexus of the case and familiarity with the often vast quantities of evidence, Housen v. Nikolaisen, supra, at paras. 24-25.

CAS Duty to Assist the Child’s Family

Law

[8] The CAS has a statutory obligation to provide services to assist a family before a child is made a Crown ward. Section 15(3) of the CFSA provides, in relevant part:

The functions of a children’s aid society are to,

(c) provide guidance, counseling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children.

[9] In addition, s. 56(d) of the CFSA requires the CAS to describe its efforts to ensure the child’s protection while in the parent’s care. Subsections 57(2) and (3) require the court to ask about what efforts the CAS made to assist the child before intervention and to be satisfied that less disruptive alternatives would be inadequate to protect the child.

[10] It must be remembered, however, that the paramount purpose of the legislation is to promote the best interests of the child, not those of the child’s parents or extended family. Indeed, protecting the child’s best interests will, in some circumstances, be at the expense of the family’s interest. Where the duties to the child have been performed in accordance with the legislation, there is no ancillary duty to accommodate the family’s wishes, Children’s Aid Society of Toronto v. W.L., [2102] ONCJ 408 at paras. 150-151.

Analysis

[11] At trial, the appellant argued strenuously that the CAS had failed in these statutory obligations to this family.

[12] The essence of the appellant’s appeal is that the trial judge failed to address the CAS’s alleged lack of assistance to the family and its failure to deliver fundamental services which, she argues, would have been instrumental in helping L.G. to address the CAS’s protection concerns.

[13] The appellant relies heavily on a sentence from the trial judge’s reasons in which the trial judge said that the CAS could have “done a better job in keeping the mother informed, but the evidence discloses that the mother’s manner of interaction with the society made communication difficult.” The appellant states in her factum, “this sentence forms the basis of this entire appeal.”

[14] The appellant’s arguments are summarized in para. 106 of her factum. She says that the CAS:

(a) failed to explain the terms and conditions of her supervision order;

(b) failed to advise L.G. that Thistletown was closed until May 2013, despite discussing it with her in the fall of 2011;

(c) allowed the family services worker, Ms. Penton, to continue as the assigned worker, notwithstanding that she failed to recommend to L.G. a number of child development and parenting programs;

(d) failed to advise L.G. of the ASQs (a questionnaire for the child’s developmental screens) or ask for her involvement in the assessment process. The child’s developmental assessment started in May 2012 but the ASQs were not given to L.G. until February 2013;

(e) failed to show the child’s development support plan to L.G. until December 2012, seven months after the assessment process started;

(f) refused to consider alternate dispute resolution when L.G. asked for it;

(g) failed to give L.G. credit for accessing services on her own, including her participation in an anger management program and a letter from her physician ruling out a psychiatric condition; and

(h) failing to provide any services other than a telephone number for her local MPP.

[15] The evidence contained in the trial record revealed the following facts and circumstances.

[16] K.H. is L.G.’s sixth child. Four of her other children have been permanently removed from her care and made Crown wards. A fifth child died in infancy.

[17] K.H. was apprehended at birth due to concerns over the mother’s past history of drug use and domestic violence. The child was returned less than two months later following drug testing. Three weeks later, the father assaulted L.G. The Durham CAS (which was then handling this file) did not immediately remove the child from the family’s home.

[18] In January 2011, L.G. advised the CAS that she was having surgery and that, during her six week recuperation period, she did not want any CAS workers coming to her home. The society workers did not agree with this and attempted to discuss the need to monitor the child’s health and well-being. L.G. became angry and antagonistic toward the CAS workers and demanded they leave her home. As a result, the CAS returned with the police and took the child into the society’s care.

[19] The CAS continued to work with L.G. and the child’s father towards a reunification. This was achieved in April 2011 when the child was returned to L.G.’s care. In July 2011, however, the mother and father attended a party at the maternal grandmother’s home. Alcohol was involved. There was a further incident of domestic violence between L.G. and the child’s father in which both parents sustained injuries. L.G. was arrested and charged. The child was again removed from the mother’s care.

[20] The child was placed in the joint, supervised care of the father and the father’s aunt at the aunt’s home. This arrangement broke down a few months later when the father, contrary to court order, took the child to L.G.’s home and refused to return him to the aunt. The CAS removed the child from the father and returned K.H. to the aunt’s care. A few weeks later, however, in December 2011, the aunt said she could no longer look after the child and the child was once more taken into foster care, where he has been ever since.

[21] Thus, this four year old child has been in foster care for about three years of his life.

[22] When Ms. Penton, the Toronto-based CAS worker, first contacted L.G. in August 2011 to try to set up an access visit between mother and child, she was yelled at on the telephone by L.G. and could not get sufficient cooperation to set up the access visit. A few days later, in another telephone call with L.G., Ms. Penton was yelled at again and referred to as “that bitch” by L.G.

[23] In October 2011, Ms. Penton became concerned about L.G.’s state of mind and referred her to the Scarborough Mobile Crisis. Ms. Penton encouraged L.G. to talk to someone about her feelings. L.G. did not make use of that referral.

[24] Shortly thereafter, Ms. Penton met with L.G. to explain the things that L.G. had to do to comply with the society’s requests. Those things, a psychiatric assessment (to determine whether L.G. suffered from mental illness), an anger management course and a hair follicle test, were eventually all done.

[25] The recommended use of Thistletown’s programs was first discussed with L.G. in November 2011. She declined to participate. It was recommended to L.G. again in January 2012 and again L.G. refused to participate. The Thistletown program closed in February 2012 due to lack of funding. The failure of the CAS to advise L.G. that the Thistletown program had closed was unrelated to L.G.’s refusal to follow the CAS’s recommendation.

[26] On more than one occasion, the CAS tried to work with L.G. to establish goals for her access with the child. L.G. felt insulted by the suggestion that she should establish access “goals.” L.G.’s behavior quickly went out of control, with the mother swearing at the CAS workers, and the meeting had to be terminated.

[27] Another meeting was set up to discuss access but L.G. cancelled. Additional dates were suggested but L.G. (who does not work or attend school) declined all of the proposed meeting dates saying she had “things to do.” The meeting never took place.

[28] Ms. Penton met with the appellant at her home in April 2012 in an attempt to provide counselling about the destructive nature of her past abusive relationships. L.G. was not prepared to discuss the issue, saying things like “do you see a fucking man here?” L.G. became extremely angry and abusive. Ms. Penton felt threatened and so terminated the meeting and left L.G.’s home for safety reasons.

[29] Another attempt to engage L.G. in a discussion of how she could get help on the central issue of concern - her history of domestic violence - took place in August 2012. L.G. took the position that she had “done it all” and no longer needed help.

[30] There was evidence at trial, however, that although the appellant took counselling (in 2010) and participated in an anger management program (in 2011) her problems with domestic violence continued.

[31] The mother testified that in August 2012 she became involved in a new relationship. She began to cohabit with her new partner in October or November. The couple became engaged. In February, 2013, however, L.G. was viciously assaulted by her “financee” and was hospitalized as a result.

[32] Following this incident, L.G. re-united with the father of the child, although the appellant maintains that he is now merely her “bodyguard” and that they are not in a domestic relationship. She testified, however, that they both live with the maternal grandmother when outside Toronto and stay at the same apartment while exercising access in Toronto.

[33] The CAS witnesses testified that L.G. never took any responsibility for the circumstances that gave rise to the child being removed from her care. She demonstrated no understanding that her abusive relationships were putting the child at risk. L.G. was, in the words of one worker, at “war” with the CAS. The mother’s lack of insight made it very difficult for the CAS to work with her or to elicit her cooperation in finding appropriate services. The mother simply blamed everyone else, including the CAS, for her situation.

[34] The CAS may not utilize the child protection system as a means of delay and then rely on the statutory time limits to argue Crown wardship is the only remedy available. By the same token, a parent may not frustrate the society’s efforts to assist and then claim that the society did not fulfill its statutory duty to provide guidance, counseling or other services. There is a reciprocal obligation on the parent to obtain services and to take advantage of the opportunities given to them, Catholic Children’s Aid Society v. L.M. and T.R., 2011 ONCJ 146; Catholic Children’s Aid Society of Toronto v. C.T. and J.Y., 2012 ONCJ 372.

[35] There was ample evidence to support the trial judge’s conclusion that L.G.’s chronic pattern of violent relationships placed not only her, but any child in her care, at serious risk of harm. There was ample evidence to support the trial judge’s conclusion that L.G. had not recognize this pattern and had not taken adequate steps to address this, by her own actions, choices or through therapeutic intervention. There was ample evidence to support the trial judge’s conclusion that L.G. was unable to regulate her anger or to place the child’s needs first. There was, as well, ample evidence to support the trial judge’s conclusion that the difficult, even vitriolic relationship L.G. had with the CAS workers was the result of her inability to manage her anger and her perception that not she, but everyone else, was to blame for her problems.

[36] Finally, there was ample evidence to support the trial judge’s conclusion that most of the CAS’s efforts to work and to collaborate with L.G. to address her problems with domestic violence and the risks that violence posed for her child were rejected and/or frustrated by L.G.’s own conduct. By 2012, virtually every effort made by the CAS workers to engage L.G. in a discussion about personal counselling or other services to deal with her pattern of abusive relationships was rebuffed, refused or shut down by L.G.

[37] The trial judge was entitled to prefer the evidence of the CAS witnesses over that of the appellant and her family and other witnesses. There was ample evidence to support the trial judge’s conclusions in this regard.

[38] Although the CAS might have identified and recommended further specific services for L.G., L.G. made it abundantly clear that she did not consider there were any issues with her parenting, did not see the need for CAS involvement and was unable or unwilling to take steps to deal with her attraction to violent, abusive domestic relationships, a problem that was unambiguously at the core of the CAS’s protection concerns. As Justice Sherr said in L.M. and T.R., supra, at para. 37, the mother “failed to take any action and cannot now say that the society did nothing for [her].”

[39] The appellant also relied heavily in the appeal on the fact that she had been kept ‘in the dark,’ so to speak, about the work being done by the Hospital for Sick Children on the child’s developmental assessment (the ASQs). While it is clear on the evidence that the CAS was unaccountably slow in getting the mother involved in this process, the child’s development, and the mother’s participation in that development, had nothing to do with the issue that was central to the CAS’s protection concerns.

[40] In other words, the CAS’s protection concerns were exclusively associated with L.G.’s propensity for violent domestic relationships (often associated with alcohol consumption) and her apparent inability to recognize that she had any problem or that she must bear some responsibility for this problem. The CAS’s protection concerns did not involve whether the mother was adequately dealing with the child’s developmental needs. There was, therefore, ample evidence to support the conclusion that there was no causal relationship between the CAS’s failure to keep the mother involved in the ASQ issue on a timely basis and the CAS’s decision to take the child from the home and to seek protective custody.

[41] There were some errors and shortcomings in the trial judge’s reasons. Most prominently, the trial judge spent little time in her analysis dealing with the mother’s main argument - the alleged failure of the CAS to provide guidance, counseling and other services to the family. Further, the trial judge seems to have relied on the alleged failure of the appellant to obtain a psychiatric assessment. The evidence was that the mother got an opinion from her family doctor which satisfied the CAS at the time.

[42] As discussed earlier in these reasons, however, there was ample evidence at trial to support the trial judge’s decision to reject the mother’s argument that the CAS had failed in its statutory duty.

[43] The trial judge’s reliance on the absence of a psychiatric assessment was an error, given the CAS was, itself, at the time satisfied with the family doctor’s opinion. However, the evidence was that while the mother had satisfied some of the CAS requirements in 2010/2011, the mother’s aberrant behavior which gave rise to the CAS protection concerns escalated in 2012 and 2013.

[44] Thus, it cannot be said that the trial judge’s error on this issue lead to an incorrect result. There was ample evidence to support the trial judge’s conclusion that, in 2012 and 2013, the appellant had not made progress dealing with the central problem and was no longer willing to engage with the CAS in seeking solutions to that problem.

[45] For these reasons, the appeal on this ground is dismissed.

The Section 70 Discretion to Grant an Extension

[46] This ground of appeal raises both a legal and a factual issue.

[47] The legal issue involves the question of whether or not the initial 12 month statutory maximum for a child under six, plus the discretionary six month extension, constitutes a so-called “hard cap” that means, once 18 months has expired since the first order for society wardship, no further extension may be granted in any event. Conflicting authority was cited by the parties on this issue.

[48] I would have favoured the position taken by Perkins J. in Catholic Children’s Aid Society of Toronto v. N.B., 2010 ONSC 615, [2010] O.J. No. 300 at para. 8 and Mitrow J. in Children’s Aid Society of London And Middlesex v. M.O., R.B. and T.B., 2014 ONSC 2435 at paras. 31 to 33, to the effect that the legislation reflects a policy that the best interests of a child under six are served by making a discretionary order for an extension within the finite period prescribed by s. 70 of the CFSA (i.e., a “hard cap” of no more than 18 months).

[49] However, the factual issue involved in this ground of appeal makes it unnecessary for me to resolve that particular problem. I say this because the same factual arguments underpinning the appellant’s first argument (that the CAS failed to provide guidance, counseling or other services) is advanced as supporting the need for the exercise of the court’s discretion to extend the period of society wardship. Thus, even if I had the jurisdiction to grant a further six month extension after so much time has gone by, on the evidence disclosed in the trial record I would not have been prepared to grant any extension.

[50] For this reason, the appeal on the second ground is also dismissed.

Penny J.

Date: June 9, 2015