Court File and Parties

COURT FILE NO.: FS-15-20591 DATE: 20160822

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO Applicant / Respondent – and – V. L. Respondent / Appellant

Counsel: Justine Sherman, for the Applicant / Respondent David Miller, for the Respondent / Appellant

HEARD: August 11, 2016

J. WILSON J.:

Reasons for Judgment

The Appeal

[1] The Appellant V.L. is the father of D, age four and A, age two and a half. He appeals the disposition of Justice R. Spence dated November 12, 2015 ordering the children be made crown wards with no access to the parents after finding that the children are in need of protection. The mother I.L. did not perfect her appeal and is not a party to this appeal.

[2] The Appellant does not raise any errors in law and does not challenge the finding that the children are in need of protection. He argues that the trial judge made palpable and overriding errors in the assessment of the evidence. He challenges the disposition of crown wardship without access. He seeks an order that the children be returned to the care of the mother under a supervision order with access to the father at the discretion of the Children’s Aid Society (“Society”). Alternatively, he seeks a new trial.

Factual Overview

[3] The mother and the father were born in Russia and later lived in the Ukraine. The mother and father now live together in Canada. D was born in the Ukraine. A was born in Canada after the mother immigrated to Canada.

[4] No fresh evidence was filed by either party. The parents continue to live together in Toronto, and the children are in foster care awaiting potential adoption, pending a final disposition of this case.

[5] Both children have special needs and significant health problems. D has mild cognitive challenges and a significant communication disorder. He has a history of maladaptive self-injuring behavior. A was a premature baby and was hospitalized for many months after his birth. His diagnosis is Spastic Quadriplegic Cerebral Palsy. He requires constant monitoring and care. Both children, particularly A, require multiple medical interventions.

[6] The Society became involved at the instigation of the police on April 1, 2014 after a report of domestic violence. Both children were apprehended on May 23, 2014 when the mother was overwhelmed and appeared to be unable to cope and manage the children. Initially there were concerns about the mother’s mental health. However, the mother’s mental health was no longer a concern at the time of trial.

[7] Section 37(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“Act”) confirms that a child is in need of protection where there is a risk that the child is likely to suffer physical harm caused by or resulting from the parent’s failure to adequately care for, provide for, supervise or protect the child, or from a pattern of neglect in caring for, providing for, supervising or protecting the child.

[8] After a 12 day trial involving 21 witnesses, the trial judge concluded at para. 184 that the children are in need of protection pursuant to 37(2)(b) for the following reasons:

1. The children – A.. in particular – were missing important medical appointments. A..’s medical challenges were – and remain – very serious. And missing any mandated appointments with his health care providers constitutes a pattern of neglect by placing him at risk of harm, if not actual harm itself.
2. Mother’s apparent inability to extricate herself from the domestic conflict with the father, demonstrated her inability to properly protect her children who, inevitably became the recipients of the fallout from their exposure to that domestic conflict. Even if there was no strong evidence of actual harm to the children from such exposure, the immediate risk of harm was certainly extant at the time of the apprehension.
3. Mother’s inability to protect her children stems not only from exposing the children to domestic conflict, but her inability to report to the police when she knowingly permitted the father to breach his criminal court bail terms by engaging in contact with her and the children.
4. After the children’s apprehension, mother’s access was varied to permit her to have extended daytime access with D.., provided she did not permit the father to have unsupervised access with D.. And yet despite this, the mother knowingly permitted unsupervised access to occur between the father and D.. This not only exposed D.. to a risk of harm, but led directly to the court-ordered return of the more restrictive, supervised access to mother.
5. Mother’s constant and consistent complaints about her perceived inadequacy of the Canadian health system, and her apparent entrenched belief that the system was a fault for A..’s deficits, made it less likely that she would proactively and willingly engage with the children’s health care providers to address the children’s health care challenges.
6. As oppositional as mother was about the Canadian medical system, father was even more oppositional, so that he too was exposing his children to risk of harm by making it less likely he would seek out and engage medical practitioners to address his children’s serious health care challenges.
7. Father’s dismissiveness about the seriousness of his conflicts with the mother – even though acknowledging that conflicts occurred – made it more likely that the children would continue to be exposed to ongoing conflict and, thus, more likely that the children would not be protected from the deleterious impact of such conflict.

[9] After concluding that the children were in need of protection, the trial judge focused on three questions to determine whether a supervision order or a crown wardship order was in the best interests of the children in accordance with section 57(1) of the Act. These questions were:

1. Whether the children would be adequately protected from exposure to domestic violence?
2. Whether the parents, or the mother alone would adequately address the developmental and medical needs of the children?
3. Whether the parents or the mother alone were ungovernable or capable of being compliant with a supervision order?

[10] Based upon his assessment of the evidence and his findings of fact, the trial judge answered all three questions in accordance with the submissions of the Society, contrary to the arguments of the parents.

Challenge to the Factual Findings

[11] The Appellant challenges the findings of fact in five areas underpinning the conclusions of the trial judge to the three questions posed:

1. The findings as to the history of domestic violence
2. His conclusion that the mother’s life is inextricably interwoven with the father’s and that she would be unable to keep the father out of the home if that were a condition ordered by the court in a supervision order
3. The characterization of missed medical appointments placing the children at risk, as opposed to rescheduled appointments
4. The findings as to the health of D prior to his apprehension
5. The finding that the mother would not proactively and cooperatively engage with health care providers or the Society in the interest of the children

[12] The father argues that these palpable overriding errors in the assessment of the facts, individually and collectively, require that the disposition of the trial judge be set aside, and that the children be returned to the mother’s care, subject to a supervision order, with access to the father at the discretion of the Society.

The Test for Palpable and Overriding Error

[13] Counsel for the Appellant has succinctly summarized the test for palpable and overriding error.

[14] A palpable error is one that is obvious, plain to see or clear. Examples of palpable factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference. (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 6 and 23; Waxman v. Waxman at para 296)

[15] An overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a palpable error does not automatically mean that the error is also overriding. The error must go to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error. (Waxman v. Waxman, at para. 297)

[16] To justify appellate intervention, there must be both a palpable and overriding error.

[17] The degree of deference afforded to the factual determinations of a trial judge is particularly compelling in child protection cases. An appellate court is not entitled to intervene simply because it would have made a different decision or balanced the factors differently. (D.D. v. Children’s Aid Society of Toronto, 2015 ONCA 903, [2016] W.D.F.L. 850, at para. 28)

The Five Factual Challenges

Domestic Violence

[18] The trial judge concluded, based upon the evidence, that there was a history of domestic violence as a feature of the relationship between the parties. At the trial when the mother and father were again living together, the mother denied the history of domestic violence previously acknowledged. The father had always denied the history of domestic violence.

[19] The father again challenges this finding in this appeal, arguing that the evidence relied upon by the trial judge is speculative and not reliable.

[20] I disagree. There is ample reliable and credible evidence supporting the finding of fact that domestic violence was a feature of the relationship between the parties prior to the apprehension of the children. This evidence includes evidence given by the mother’s psychiatrist confirming that the parents have domestic problems “bordering on violence”. Prior to the apprehension, when the parties were separated, the mother told the Society worker that the father had assaulted her in the presence of D, and since being exposed to the conflict D had stopped speaking the words he knew in Russian (the language spoken in the home). In addition, the mother’s friend testified that she was aware of the history of violence and that the mother had shown her bruises from injuries.

[21] Some domestic violence was a part of the mother and father’s relationship, and the evidence confirmed that this history had a negative impact, particularly on the eldest child.

[22] There is no merit to this factual challenge.

The Relationship between the Mother and the Father

[23] The trial judge concluded that the mother’s life is so inextricably interwoven with the father that she would be unable to keep the father out of the home if that were a condition ordered by the court in a supervision order.

[24] The Appellant challenges this conclusion.

[25] The trial judge reviewed the nature of the relationship between the parties relevant to the issue of disposition in a careful and neutral manner. The mother and father’s first proposal was that together they would care for the children, subject to a supervision order.

[26] The trial judge rejected the first proposal due to the history of domestic violence; the father’s persistent aggressive and negative attitude towards the medical system in Canada and the Society; and the father’s belief that the children’s problems were a result of the Society’s actions. This belligerent, angry lack of insight, particularly of the father, underpinned the conclusion that the children would not receive the necessary medical care if left in the care of both parents.

[27] The mother had noted strengths when observed on her own with the children. The parents’ alternative proposal was that the children would live with the mother, the father would leave the home, and access to the father would be permitted only as recommended by the Society.

[28] The trial judge found that the evidence confirmed that the mother’s life is inextricably interwoven with the father, that she is dependant upon him emotionally and financially, and that she cannot imagine living without him.

[29] The trial judge carefully reviewed the evidence of the mother about her ability to live apart from the father and concluded that “there was no ambiguity about the mother’s intention to remain with the father”. He found that “despite her assertion that she could remain away from him, the evidence strongly suggests otherwise”.

[30] The trial judge concluded that the nature of the relationship and the power imbalance between the parties made the second alternative proposed by the parents untenable. The parties also had a history of breaching court orders that imposed bail conditions of no contact.

[31] The evidence amply supports the finding of the trial judge that the mother’s life is so inextricably interwoven with the father that she would be unable to keep the father out of the home if so ordered by the court in a supervision order.

[32] There is no merit to these challenges of the findings of fact.

[33] I note that the court did not reject the second alternative for a supervision order solely because of the power imbalance and dominance in the relationship between the parties. The trial judge found that the mother was not candid with the court when she denied prior statements in sworn affidavits. Apart from the nature of the relationship between the parties, the trial judge concluded that the mother alone was a poor candidate as the custodial caregiver subject to a supervision order.

Missed v. Rescheduled Medical Appointments

[34] The Appellant challenges the trial judge’s finding that the father’s failure to take the children to scheduled appointments constituted evidence that he would not take the children to appointments in the future.

[35] The Appellant testified at trial that, due to his work schedule, he was not able to take the children to all of their medical appointments, but that every appointment he missed was rescheduled. He argues that the trial judge was unfair in his characterization of this evidence as an omission.

[36] The trial judge found this history of missed or rescheduled appointments relevant to the question of whether the children would receive the necessary medical care if they were in the parents’ care with a supervision order, or the mother’s care alone subject to a supervision order.

[37] There is no doubt that six appointments were missed and rescheduled. There is also no doubt that both parents, and in particular the father, was dismissive of the need for medical care, and that both parents had biases and significant distrust in the Canadian medical system.

[38] The trial judge appropriately considered the missed or rescheduled appointments as a relevant fact in the context of the very negative attitude of both parents, particularly the father, towards the Canadian medical system. The rescheduled appointments in the context of the negative attitude are relevant to whether the parents would ensure the children’s medical needs would be met in the future. There is no merit to this factual challenge.

The Health of D Prior to Apprehension

[39] It was the father’s evidence at trial that D was perfectly healthy, with normal development, before being apprehended and placed in foster care. He blames D’s deficits on the actions of the Society.

[40] The trial judge concluded that this assertion was entirely counter to the foster mother’s testimony, and accepted the evidence of the foster mother.

[41] The Appellant again reargues his position taken at trial, and in essence challenges the evidence of the foster mother.

[42] The evidence of the foster mother is summarized in some detail. D has severe respiratory problems and asthma that developed one month after apprehension. While in his mother’s care prior to his apprehension, D had pneumonia and was prescribed antibiotics. Since apprehension, D had been hospitalized eight times for asthma related problems and has been given steroid treatment. When he went into foster care he had no speech, he hid, and he was shy. D began developing self-harming behavior in times of stress picking scabs on his head. He is now verbal and enjoying daycare.

[43] The trial judge fairly outlined the evidence that confirmed that D had medical and developmental problems prior to apprehension that were exacerbated after the apprehension.

[44] There is no merit to this challenge to the trial judge’s finding of fact.

The Mother’s Capacity to Engage the Health Care Providers and the Society

[45] The trial judge concluded that the mother would probably not proactively and cooperatively engage with health care providers or the Society in the best interests of the children.

[46] The Appellant argues that this finding is speculative, and not supported by the evidence. Counsel points out the various supports available to the mother, including her 17-year-old son and her various friends.

[47] I disagree. This conclusion flows from a review of the evidence as a whole and an understanding of the dynamic between the father and the mother. The trial judge outlined in the reasons that the mother was under the dominance and control of the father, and that it was unlikely that she had the capacity to learn from her mistakes. He found that neither parent had “any real insight into their behaviours, and how those behaviours placed the children at risk”. The mother has refused to acknowledge the existence of domestic violence, and has refused to obtain any counseling. She declined to participate in medical appointments with the children after apprehension as the foster mother would also be present.

[48] The conclusion of the trial judge that the mother alone would not likely engage with the health providers and the Society in the interests of the children is supported by the evidence.

Conclusions

[49] There is no merit to the factual challenges argued in this appeal. There is no palpable and overriding error in the trial judge’s assessment of the facts.

[50] The trial judge in careful reasons outlines the findings of fact after a 12 day disputed hearing with many witnesses. He did not accept the evidence of the father and the mother when it conflicted with the evidence of the other witnesses. The father in this case is attempting to reargue the factual issues determined at the trial. He is challenging specific facts, without placing the specific finding of fact in the context of the comprehensive reasons considered as a whole.

[51] For these reasons, the appeal is dismissed.

[52] I thank counsel for their helpful submissions in this emotionally charged and difficult case.

J. Wilson J.

Released: August 22, 2016