T.L.K. v. Children’s Aid Society Haldimand Norfolk; Feldman on behalf of the child H.B. v. Children’s Aid Society of Haldimand Norfolk and T.K.L., 2015 ONSC 5665

COURT FILE NO.: 180/14 and 01/15
DATE: 2015 11 30

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

T.L.K.
Appellant

– and –

Children’s Aid Society of Haldimand Norfolk
Respondent

BETWEEN:

James Battin, for the Appellant

Birkin Culp, for the Respondent

Linda Feldman on behalf of the child H.J.B.
Appellant

– and –

Children’s Aid Society of Haldimand Norfolk and T.L.K.
Respondents

Linda Feldman, for the Appellant
Birkin Culp, for the Respondent Children’s Aid Society Haldimand Norfolk
James Battin, for the Respondent T.L.K.

HEARD: June 18 and September 11, 2015

THE HONOURABLE MR. JUSTICE R. J. HARPER

Issues on this appeal

[1] There are three appeals from the Order of the Honourable Justice Baker dated November 26, 2014. The appeals are as follows:

a. The mother, T.L.K., appeals the Order for no access to her children. She seeks an order for access to the children, W.A.B., S.L.B. and H.L.B.;

b. The Office of the Children’s Lawyer (“OCL”) initiated an appeal on behalf of the children, W.A.B., S.L.B. and H.L.B. appealing the Order of the trial judge and seeking an order for access to their mother, T.L.K., and their older brother, H.J.B.; and,

c. The OCL initiated an appeal on behalf of the older child, H.J.B., denying H.J.B. access to his siblings, W.A.B., S.L.B. and H.L.B.

Background

Background of the family

[2] The trial before the Honourable Justice Baker (“trial judge”) was a Status Review Application regarding the following children: W.A.B. (born […], 2004), S.L.B. (born […], 2006), H.L.B. (born […], 2008), J.B. (born […], 2010) and A.L.B. (born […], 2011). The Society sought an order for Crown Wardship with no access for all five children.

[3] The mother and the OCL, acting for the five children, opposed the Application and sought an order returning the children to the mother, or in the alternative, an order allowing the mother access to the children.

[4] The father had previously withdrawn his answer. He was found in default and did not participate in any of the proceedings.

[5] The child, H.J.B., born […], 2003, was added as a party during the course of the trial. He sought an order for access to his siblings. The OCL advanced his claim for access and is advancing his appeal of the trial judge’s decision not to grant him access to his siblings.

The litigation process

[6] This has been a long and arduous proceeding. All six of the above children were the subject of a protection trial before the Honourable Justice Edward between January and July 2013. The parties consented to an order finding all of the children in need of protection pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11, s. 37(2)(b) (risk of physical harm) and s. 37(2)(g) (risk of emotional harm). The trial before Edward J. dealt with the appropriate disposition.

[7] On July 15, 2013, Justice Edward ordered H.J.B. returned to the care of his mother, T.L.K., subject to a supervision order. He also ordered the remaining children, W.A.B., S.L.B., H.L.B., J.B. and A.L.B., to be made Crown wards with no access.

[8] Justice Edward’s decision was appealed with respect to all of the children, except H.J.B. On June 9, 2014, Justice Gordon allowed the appeal and directed a new trial on the issue of disposition.

[9] The trial before Justice Baker took place over 8 days split between July and October 2014. During the recess period in September 2014, H.J.B. was removed from his mother’s care and is the subject of a separate proceeding.

[10] Over the course of the trial before Justice Baker, all parties and the OCL entered into minutes of settlement that provided for access between H.J.B. and W.A.B., S.L.B. and H.L.B. This agreement was subject to the trial judge’s approval. The trial judge did not approve of the agreement. He ordered no access for either the mother or H.J.B. to the three siblings as above. The remaining two siblings were made Crown wards with no access and that order is not the subject of appeal.

[11] With respect to the children, W.A.B., S.L.B. and H.L.B., the trial judge ordered access between these children in the discretion of the Society and in consultation with the children.

[12] In the course of their submissions before me, the Society submitted that they were wrong to have agreed to access the trial judge later rejected. They took the position, on this appeal, that the tests for access set out in s. 59(1.1) of the CFSA had not been met.

[13] On the first day of the hearing of this appeal, the mother withdrew her appeal of the Crown wardship order. She filed fresh evidence which essentially stated that she could now support adoption planning for the children and wanted access for that purpose. In response, the Society takes the position that this eleventh hour epiphany is not real given the mother’s history. They submit the mother takes this position only to remove one of the hurdles to access: that such access would impair adoption of the children. The Society pointed to the years of litigation with respect to this matter during which the mother contested the issues vigorously. In the course of the litigation, the mother told one of the Society workers that she would bring a status review every 6 months until the children reached an age that the Society had no ability to prevent their coming home to her.

[14] I agree with the Society. The mother’s history is long and consistent with respect to her adversarial position over the years. I do not feel that her last minute change of heart is rooted in her reality. I find that she has changed her position to tactically remove a concern for her being an impediment to adoption.

The trial judges reasons

[15] The trial judge had substantial evidence before her with respect to the physical and emotional abuse of the children, as well as the impact of that abuse on their functioning.

[16] All six children in this family have been the subject of an upbringing that featured a neglectful home. The Society has been involved with this family since early 2010. There were multiple and long standing concerns for the children. The children were abused physically by their father. They were also witnesses to domestic violence and subjects of maltreatment and emotional abuse. Numerous resources were given to the family in order for them to make an effort to ameliorate the concerns. There were few gains made by the parents.

[17] In August 2010, the family was referred to the Child Advocacy and Assessment Program at McMaster University Hospital (“CAAP”). By August 2011, the Society felt the mother had not made sufficient gains and they brought a protection application. CAAP’s first report, completed in September 2011, made recommendations that the children should be returned to the mother’s care on a gradual and sequential basis. The father was not involved in this assessment as he was incarcerated at the time.

[18] CAAP was of the view that both parents were responsible for the abusive environment for the children. Although the mother was not violent, she could not and did not protect the children from the violence that was directed by the father at the mother and the children. As a result of this violent background and as a result of their being subjected to maltreatment and a neglectful environment, according to the CAAP report, the children were all compromised in their development across multiple domains of their emotional, physical, and cognitive functioning. The report also stated that the children fit within the framework of complex trauma, and this is, typically, chronic and long lasting.

[19] The children seemed to have different levels of negative impact. For example, H.J.B. was described by CAAP as having behaviours that were consistent with post-traumatic stress disorder. However, the consistent recommendation of CAAP was that the children were in need of responsible, predictable, consistent, stable and emotionally sensitive caregiving.

[20] CAAP was given certain additional information by the Society after CAAP had expressed the view that there should be a gradual return of the children to the mother. The information consisted of an incident where the mother misrepresented to the Society about providing breast milk for her infant child. In addition, she told CAAP that she was not in any relationship and there were no immediate concerns for further exposure to domestic violence. The latter information was also not accurate. The Society had information that the mother was in a relationship. After this new information was given to CAAP, they changed their opinion and supported the children being made Crown wards.

[21] With respect to the issue of access, the CAAP report that was before the trial judge stated:

With regard to access between T.L.K and the children, access should only occur if it does not interfere with the children’s opportunity for permanency. Given their ages and developmental needs. A.L.B. and J.B. do not require an ongoing access relationship with T.L.K although H.L.B is older, she has been primarily parented by her current foster parent and this, likely views her current foster parent as her psychological parent. Although she may recognize and have an affectional relationship with T.L.K. and enjoy her access with her mother, her access visits are less important to her future functioning. H.J.B., W.A.B. and S.L.B may benefit from an access relationship with T.L.K. given their ages and developmental needs. However, T.L.K., attachment relationship with her children is compromised given the children’s exposure to maltreatment in (her) care. Thus access should only occur if T.L.K. is able to consistently attend for access, respond appropriately to the children’s needs and support ongoing care outside her home.

[22] The CAAP Clinical Coordinator, Ann Marie Pietrantonio, testified at the trial. The trial judge pointed out, at para. 36 of the judgment, that Ms. Pietrantonio’s testimony revealed that the children experienced child maltreatment. This means the children had experienced neglect, emotional harm and exposure to domestic violence, which is itself a source of emotional harm to children. The team concluded the children had suffered neglect because of the type of physical environment the children had lived in, transiency as the family had moved many times, school absenteeism for H.J.B. and W.A.B., lack of attention to H.J.B.’s and W.A.B.’s speech and language issues, and exposure to domestic violence. There were also concerns that the children were exposed to the father’s sexual abuse of a minor.

[23] Evidence at the trial detailed many of the significant challenges H.J.B. faced. His behaviours and mental health issues escalated. H.J.B. had experienced seven different placements over his time in care. They all broke down due to his behaviour. At the end of August 2013, H.J.B. was returned to his mother’s care under supervision of the Society. Approximately 4 days after H.J.B. was returned to his mother, T.L.K.’s boyfriend moved in with them. The mother’s boyfriend moved out shortly after Christmas of that year due to H.J.B.’s poor behaviour. The boyfriend then moved back into the home with the mother and H.J.B. at the end of June 2014. When the trial resumed in October 2014, H.J.B. had been removed from the mother’s care and returned to foster care due to the escalating poor behaviour of H.J.B. By the time the trial had resumed in October 2014, the boyfriend had also moved out of the home.

[24] As stated earlier the parties agreed to a finding that all of the children were in need of protection, and the trial then focused on the disposition. The trial judge stated at para. 172 of her reasons:

All five of these children have been in care for a period vastly in excess of the maximums set out in the legislation. It therefore follows that the only available dispositions are immediate placement with the mother with or without supervision or Crown wardship with or without access.

[25] Then after her review of the law, as applied to her findings of fact, the trial judge ordered Crown wardship without access to the mother and without access between H.J.B. and his 5 siblings. But the trial judge ordered access between the three children, W.A.B., S.L.B. and H.L.B.

[26] The issues in this appeal are whether the trial judge erred in (a) not granting access between H.J.B. and his 5 siblings, and (b) in not granting the mother access to W.A.B., S.L.B. and H.L.B.

Standard of review

Appeal

[27] An appeal is not a rehearing that takes place as though there were not already a decision on the merits of the case. The trial judge’s decision is entitled to due respect. The appellant must show that the judge erred in his or her appreciation of the evidence, in the inferences he or she drew from the evidence or in his or her application of the relevant legal considerations: Carter v. Brooks, (1990) 2 O.R. (3d) 321, at para. 34.

[28] Some appellate courts have referred to the Ontario Court of Justice as an akin to a specialized tribunal and therefore some deference should be given to the trial judge. The Ontario Court of Justice and a judge sitting in the Superior Court of Ontario, Family Court, have been given exclusive jurisdiction over protection proceedings under the CFSA: Children’s Aid Society of Toronto v. R.R., at para. 4.

[29] I agree with Justice Milanetti in Children’s Aid Society of Brant v. J.B. (mother) and C.B. (father), 2013 ONSC 4059, where she outlined the legal standard, at paras. 24‑27, as follows:

Justice MacPherson, in Children’s Aid Society of Regional Municipality of Waterloo v. C.A.D., 2011 ONSC 2253, articulated the applicable standard of review on an appeal of this matter, on a pure question of law, and on an appellate review of the summary judgment motion, is one of correctness. (Housen v. Nikolaisen, 2002 SCC 33).

Where it is alleged that the Motions Judge made an error of fact, the standard of appellate review lies somewhere between “palpable and overriding error” and correctness. The cases on this standard are analyzed by Justice Hambly in Children’s Aid Society of Waterloo Region v. V.L. and A.C.P., 2006.

It is clear from all the law provided that this is not meant to be a rehearing. I am not to merely substitute my own decision for that of the original motions judge.

Moreover, I am to be particularly deferential when reviewing the decision of a Justice specialized in this area of the law as is Justice Martin.

Did the trial judge err in law relative to the test ordering access to Crown wards

[30] The trial judge correctly set out the wording of s. 59(2.1) of the CFSA. At para. 174 of her reasons she stated the following:

… no access order shall be made unless the court is satisfied that:

a. The relationship between the person and the child is beneficial and meaningful to the child; and,

b. The ordered access will not impair the child’s future opportunities for adoption.

[31] At para. 175 she stated the following:

Where a child is made a Ward of the Crown, there is a presumption against access. The onus is on the person seeking access to demonstrate on a balance of probabilities that the criteria set out in section 59(2) are met. “Beneficial” has been held to mean “advantageous”. “Meaningful” has been held to mean “significant”. The person seeking access must prove that his or her relationship with the child brings a significant advantage to the child.

[32] None of the parties questioned the accuracy of the trial judge’s above statement of the law. The OCL, on behalf of W.A.B, S.L.B. and H.L.B., however, point to the following statement by the trial judge and submit that she misdirected herself as to the application of the test set out in s. 59(2.1). At para. 176, the trial judge stated:

It is not sufficient for parents to state that access was appropriate and no concerns had been identified. The parents must show that access would bring a significant positive advantage to the child.

[33] The OCL submits the trial judged focused on the “access” being beneficial and meaningful instead of the “relationship” between the child and the person seeking access. At para. 272, the trial judge stated:

I have therefore concluded that the mother has not demonstrated that access would be beneficial and meaningful for any of the subject children.

[34] The OCL submits that the above misdirection of the trial judge amounts to an error in law. The OCL further submits that the error is significant because the trial judge does not conduct the proper analysis of whether the children have a beneficial and meaningful relationship with their mother or their brother H.J.B.

Err in law

[35] I agree that the trial judge was not correct in law when she stated in her reasons that the mother has not demonstrated that access, instead of the relationship, had to be beneficial and meaningful.

[36] The issue becomes did her misstatement of the correct test for access to a Crown ward prevent her from doing a proper analysis of whether the relationship between the mother and H.J.B. and the subject three siblings is meaningful and beneficial.

[37] The court must assess the following when deciding whether to grant a person access to a Crown ward:

a. Whether the relationship is beneficial and meaningful;

b. Whether access would not impair adoption; and,

c. If the court makes that two part determination affirmatively, the court must then consider whether access is in the child’s best interest.

[38] In this case, the trial judge did not articulate in her reasons an analysis of the relationships between H.J.B. and his siblings, W.A.B., S.L.B., and H.L.B.

[39] Section 134 of the Courts of Justice Act, R.S.O. 1990, c. c.43, provides the following:

134.(1)Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

[40] As I alluded to earlier, this matter has had a long and arduous history. The children have been in care since 2010. The matter has already gone through one trial that was appealed and sent back for another trial. This is the appeal of the second trial. It is in the best interest of these children that I exercise my jurisdiction pursuant to s. 134(a) of the Courts of Justice Act and make any order or decision that ought to or could have been made by the court or tribunal appealed from.

[41] I have reviewed the complete trial record, including the transcripts. I am of the view that there is a sufficient record to be able to conduct an analysis of the relationship between the child, H.J.B., and his siblings, W.A.B., S.L.B. and H.L.B., to determine the first part of the test in s. 59(2.1) of the CFSA.

Impact of the abuse on all of the subject children

[42] The starting point must be the impact the abuse had on the children’s ability to form relationships, and particularly, what is the nature of their relationships with each other. As I stated in paragraphs 15 through 21 above, the impact of abuse and neglect on these children has been severe and will be long lasting.

[43] All of the subject children have been in care since 2010. When they came into care, W.A.B. was 6 years old, S.L.B. was 4 years old and H.L.B. was 2 years old. H.J.B. was 9 years old when he was assessed by CAAP in 2010.

[44] At p. 86, line 10 of the same transcript, she went on to state:

A. So all of the children had varying degrees of difficulties in terms of their emotional behavioural functioning…

[45] With that backdrop of all of the children having difficulties to varying degrees with peer and family relationships, since they came into care and have spent most of their lives in care since 2010…

[46] This was the state of the children’s functioning with respect to relationships in 2010. The children were noted in the evidence to have made gains while in the care of stable nurturing placements. However, there was a serious lack of evidence relative to the nature of the relationship between H.J.B. and the siblings he seeks access to.

[47] Despite being made a party and having his case advanced by the OCL, H.J.B. did not call any evidence…

[48] The only evidence that is submitted relates to the fact that the children enjoyed visits and want visits with H.J.B.

[49] The OCL called Ms. Chapman to give testimony.

[50] Ms. Chapman had a number of interviews with the children in the summer of 2014.

[51] On October 17, 2014, H.J.B. had a visit with his siblings.

[52] Ms. Chapman also spoke with S.L.B. and H.L.B.

[53] Based on those interviews, Ms. Chapman testified that the children… said to her consistently that there are three parts to their lives.

[54] I do not feel that Ms. Chapman was in a position to express the opinion noted above…

[55] I find that the relationship between H.J.B. and the subject children is not beneficial.

[56] Having found the relationship is not meaningful and beneficial; there should be no access between H.J.B. and W.A.B., S.L.B. and H.L.B.

[57] If I am wrong in this regard the second part of the test must be considered: would access impair adoption?

[58] In order to consider that issue, a substantial part of the argument before me was whether or not the amendments to the CFSA of 2011 amounted to what was submitted before me to be a “dawning of a new age” relative to the consideration of whether access would impair adoption.

The legislative scheme after 2011

[59] Access is dealt with in ss. 58 and 59 of the CFSA.

[60] Section 58 reads:

Access order

58. (1) The court may, in the child’s best interests…

[61] Section 59 reads:

Access: Crown ward

(2.1) A court shall not make or vary an access order…

[62] In addition to dealing with issues of access there is a new concept of “contact” in s. 59(4).

[63] The openness concept is set out at s. 141.1.1:

[64] Section 143 reads:

Access orders terminate

143. (1) When a child is placed for adoption…

[65] Section 145 reads:

No access order in effect

Application for openness order

145.1 (1) If a child who is a Crown ward is the subject of a plan for adoption…

The concepts of access, contact, openness

[66] In Children’s Aid Society of Toronto v. T.L., 2010 ONSC 1376, Justice Perkins stated at para. 30:

Note as well that the focus of section 59(2.1) is very narrowly on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities.

[67] The OCL argues for an access order…

[68] The two stage analysis of s. 59 remains.

[69] Justice Murray of the OCJ reviewed some of the cases commenting on the impact of the 2011 amendments…

[70] Justice Sherr in Children’s Aid Society of Toronto v. E.U., 2014 ONCJ 299, took a much more expansive view…

[71] With the greatest respect, I do not agree.

[72] Justice Chappel commented at para 73 of Children’s Aid Society of Hamilton v V.B. and M.B., 2015 ONSC 4602.

[73] In my opinion, a court considering the test in s. 59 as to whether access might impair adoption cannot project into the future…

[74] When the court is considering access pursuant to s. 59(2.1) it is not asked to determine if “access or openness would impair adoption”.

[75] The mere fact that granting access might lead to an openness application…

[76] I am also of the view that the 2011 amendments have not expanded the definition of “meaningful and beneficial”.

[77] In M. v. Children’s Aid Society of County of Simcoe, 2012 ONSC 6707, Eberhard J. dealt with the issue of access…

[78] Neither openness nor access is defined in the CFSA.

[79] Other than the Society bringing an application for an openness order pursuant to s. 145 of the CFSA…

[80] An openness order is defined in s. 136 of the CFSA as:

openness order means an order made by a court…

[81] Neither statute nor case law defines access.

[82] Contact is a concept that has been included in s. 54(4) of the CFSA.

[83] Section 54(4) seems to conflict with s. 103.

[84] Katarynych J. of the Ontario Court of Justice, in Re Proposed Openness Order for S.M., 2009 ONCJ 317, discusses general principles…

[85] Then Katarynych J. considers the conjunctive requirements of “beneficial and meaningful”…

[86] Specific to our circumstances, Katarynych J. predicts…

[87] Section 59 does not require a court to determine whether an openness order will be of benefit to a child.

[88] I find the trial judge had sufficient evidence to support her finding that access between the mother and the children, W.A.B., S.L.B. and H.L.B., would impair adoption.

[89] Having regard to the above, I order there shall be Crown wardship with no access to the children, W.A.B., S.L.B. and H.L.B.

The Honourable Mr. Justice R.J. Harper

Released: November 30, 2015

COURT FILE NO.: 180/14 and 01/15

T.L.K
Appellant

– and –

Children’s Aid Society of Haldimand Norfolk
Respondent

BETWEEN:

James Battin, for the Appellant

Birkin Culp, for the Respondent

Linda Feldman on behalf of the child H.B.
Appellant

– and –

Children’s Aid Society of Haldimand Norfolk and T.L.K.
Respondents

Linda Feldman, for the Appellant
Birkin Culp, for the Respondent Children’s Aid Society Haldimand Norfolk
James Battin, for the Respondent T.L.K

Released: November 30, 2015