T.S. v. Children’s Aid Society of Toronto

CITATION: T.S. v. Children’s Aid Society of Toronto, 2016 ONSC 884

COURT FILE NO.: FS-15-20311

DATE: February 4, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: T.S., Appellant

AND:

Children’s Aid Society of Toronto, Respondent

BEFORE: CHIAPPETTA, J.

COUNSEL: Joy-Ann Cohen, for the Appellant

Simon Fisch, for the Respondent

HEARD: February 1, 2, 2016

ENDORSEMENT

Overview

[1] The Appellant is the biological mother of I., born […], 2012 (“the child”). She appeals the judgment of the Honourable Justice Roselyn Zisman of the Ontario Court of Justice (“the trial judge”), dated June 29, 2015 wherein she ordered that the child be made a Ward of the Crown with no access for the purpose of adoption. The Appellant mother seeks an order that the order of the trial judge be set aside and that the child be placed in her care and custody. Alternatively the Appellant mother asks that a trial de novo be ordered. In the further alternative, she asks that the child be made a Crown Ward with access to the Appellant.

[2] The function of this court, sitting as an appeal court, is not to conduct an independent review of the trial evidence and determine whether the trial judge’s individual findings are properly weighed and reasonable. Rather, the function of this court is to consider the totality of the evidentiary record at trial and determine whether the trial judge correctly stated the law and applied it to the facts absent palpable and overriding error.

[3] In my view, the trial judge carefully and thoroughly reviewed all of the evidence and made no reversible errors in her findings of facts and her application of the law to those facts. The Appellant’s appeal is therefore dismissed. The child is to be placed in an adoptive home without further delay.

Background

[4] The child has been in the care of the Respondent, the Children’s Aid Society of Toronto (“the Society”), since November 23, 2012, when she was 3 months old. At that time the Appellant mother indicated to the Society that she could no longer parent I. and requested that she be placed in the Society’s temporary care and custody. She agreed to sign a temporary care agreement.

[5] In March 2013, the Society commenced a Protection Application seeking a 6 month period of Society Wardship. I. was ordered into the temporary care and custody of the Society.

[6] In December 2013, the Society amended its Protection Application to seek an order of Crown Wardship, with no order for access.

[7] On March 2, 2015 the Honourable Justice Sherr made an order that I. is a child in need of protection pursuant to section 37(2)(b) and section 37(2)(i) of the Child and Family Services Act, R.S.O. 1990, c. C.11.

[8] On June 29, 2015, the Honourable Justice Zisman provided detailed reasons and made an order of Crown Wardship with no access for the purpose of adoption. Over 7 days of trial, the trial judge heard evidence of the family service worker, child service worker and adoption worker on behalf of the Society. On behalf of the Appellant mother, she heard evidence from the maternal grandmother and paternal uncle, the Appellant mother’s treating psychiatrist (Dr. Araki), the psychiatrist who treated the Appellant mother upon her involuntary hospitalization under the Mental Health Act, R.S.O 1990, c. M.7 May 14 – 28, 2015 (Dr. Golts), the Appellant’s counsellor from the Centre for Addiction and Mental health (“CAMH”) (Mr. de Sousa) and a housing worker from her current shelter.

Grounds for Appeal

[9] The Appellant mother raises 7 grounds of Appeal in her Notice of Appeal dated July 24, 2015. In her factum, the Appellant mother particularizes her grounds in what she submits as 8 errors made by the trial judge on questions of fact and questions of mixed law and fact:

1. The quality of access between the child and the Appellant mother was given no weight in determining future risk;
2. The Society cut back access in preparation for possible success in its Crown Wardship application;
3. The trial judge ignored the reasonableness behind the Appellant mother’s decision to temporarily return access to the Society’s office;
4. The trial judge made the error of equating the fact that the Appellant mother did not reveal the auditory hallucinations before October 2014 with a lack of forthrightness;
5. The Appellant mother’s commitment and positive efforts to engage in treatment with her psychiatrist and at CAMH were insufficiently recognized;
6. The Appellant mother’s persistent attempts to secure housing led to her eventual success – but these attempts – and this success – were not taken into account by the trial judge;
7. The trial judge did not consider the huge strides the Appellant mother made and her overall capacity for change, as demonstrated since access to the child resumed in May 2013; and
8. No evidence was adduced by the Society that continued access between the Appellant mother and the child will impair future opportunities for adoption.

Standard of Review

[10] The Appellant submits that the 2007 Alberta Court of Appeal case of Webster v. Wasylyshen, 2007 ABCA 23 is applicable to this case. She argues that the trial judge drew inferences based in part on hindsight, with the result that she replaced the evidence of the Appellant’s psychiatrists with her own misguided opinion. As will be set out below, I do not agree that the trial judge replaced medical opinion with her own view. Further, the Alberta case has no application to the applicable standard of review herein.

[11] Rather, the standard of review for all factual conclusions made by the trial judge is that of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 9, 25; Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765 (Ont. C.A.), at paras. 296, 297, 300, 301, 305. Where the findings involve mixed fact and law or drawing conclusions and inferences, they should not be overturned absent a palpable and overriding error: Children’s Aid Society of Toronto v. DJ, 2013 ONSC 2776, [2013] O.J. No. 2441, at para. 27. “A palpable error is one that is obvious or plain to see and an overriding error is one that is sufficiently significant to vitiate the challenged finding of fact and goes to the root of the challenged finding of fact. In reviewing the inferences made by the trial judge, the court will consider whether they are supported by the findings of fact or whether they are clearly wrong. The appellant court will not re-weigh the evidence:” Children’s Aid Society of Toronto v. DJ, at para. 27.

[12] The Ontario Court of Appeal has recently affirmed that the degree of deference to factual determinations of the trial judge is particularly compelling in child protection cases. An appeal 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] O.J. No. 6816, 2015 ONCA 903 at paras. 27-30.

[13] The Appellant mother’s grounds for appeal are restricted to questions of fact, questions involving mixed fact and law or drawing inferences and conclusions. For reasons set out below, I have concluded that the trial judge made no palpable and overriding error. Rather, her findings, conclusions and inferences were supported by the evidentiary record at trial and are entitled to deference.

Grounds of Appeal

1. The quality of access between the child and the Appellant mother was given no weight at all in determining future risk

[14] The Appellant mother argues that the trial judge gave no weight to the evidence at trial demonstrating the quality of the access visits between I. and the Appellant mother. She refers to the testimony of Mary Craigen, the worker supervising access, which included observation of engagement by the Appellant mother, no safety issues and attentive behavior.

[15] The trial judge did consider the quality of the access visits and specifically found that the Appellant mother and I. were affectionate with each other. She further found that the Appellant mother attended almost all of the access visits, had been on time and had been generally appropriate with I: paras 99, 100. The trial judge reviewed the history of access, its gradual progression to over- night visits, its abrupt stop to overnight visits at the Appellant mother’s request after only 4 and the variance on motion by the Society: paras101-109.

[16] It cannot be said therefore that the quality of access between I. and the Appellant mother was given no weight in determining future risk. Rather, the trial judge acknowledged the positive quality of the visits then properly considered that positive quality within the context of the overall best interests of the child analysis wherein she also considered the Appellant mother’s mental health, alcohol and cough medicine use, inability to find stable housing, inability to handle overnight access, the mother’s plan to live at Birkdale, her failure to be forthright with the Society, the Courts and her doctors and her lack of stability despite the support from CAMH and her mother and uncle. Taking all of these considerations together, she concluded that there was overwhelming risk associated with the Appellant mother’s plan such that Crown Wardship was in I.’s best interest. This conclusion was supported by the evidence before her: paras 120-122 after a consideration of many factors, including the positive quality of the access visits.

[17] Further, in considering the onus on the Appellant mother to rebut the presumption against access to a Crown Ward, the trial judge recognized that it was not enough that there are some positive aspects to the relationship or that the access visits are enjoyable, there must be some significant advantage to the child: para.133. Although recognized in a context different to a finding of Crown Wardship, it further demonstrates consideration by the trial judge of the positive quality of the access visits.

2. The society cut back access in preparation for possible success in its Crown Wardship application

[18] On September 2, 2014, the Appellant mother brought a motion for increased access which was opposed by the Society. Access was ordered to occur every Monday from 11:00am to Tuesday at 1:00pm and every Wednesday and Friday from 9:30am to 3:30pm. There were terms of access which included that the grandmother was to be present and supervise the overnight access. After only 4 overnight visits, the Appellant mother disclosed that she could no longer have overnight visits at her mother’s home location. She offered reasons that included she was stressed out because her mother had three cats, the lack of baby- proofing, she did not like the way her mother disciplined I., it was not good for I. or herself psychologically, she did not have a high chair and that she needed her own place or to live at Birkdale shelter in order to properly care for I.

[19] When the Appellant mother cancelled the overnight visits she also disclosed to the Society for the first time that she was having auditory hallucinations. The Society then returned to the Ontario Court of Justice and on motion obtained an order for temporary access twice weekly for 3 hours. This temporary access order was in place from October 2014 until June 2015 when the trial occurred.

[20] The Appellant mother argues as a ground of appeal that the Society cut back access in preparation for a possible success in the Crown Wardship application. This she submits is contrary to the Society’s obligations to assist the Appellant mother in accordance with s. 25(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 and a frank attempt to use its discretion regarding access to design the outcome of the trial: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(P.A.), 1998 14476 (ONCJ) at para. 27.

[21] In my view, this ground of appeal is without merit. The evidence demonstrates that the Society offered assistance to the Appellant mother when she cancelled the overnight access. The Appellant mother would not consent to the family service worker advising the grandmother about the stated concerns or allow the worker to ask the grandmother if she would take responsibility for the overnight visits. The affidavit of Katherine Freeman, sworn May 25, 2015 confirms that the Society provided the Appellant mother with a crib for overnight access.

[22] The maternal grandmother testified that she was surprised that the overnight access ended as the mother had fought so hard for the access. She felt that problems could have been worked out and although her apartment was not suitable for longer term they could have managed for the visits.

[23] The trial judge did not accept the evidence of the Appellant mother that she could not manage overnight access because she did not have and could not afford a high chair or baby gate or because her mother’s home was not baby-proofed. She found that the mother could not manage overnight access as a result of her unstable mental health, her inability to cope with the ordinary stresses of caring for a young toddler and her inability to problem solve: para. 109. Her conclusions were supported by the evidence at trial.

[24] I have concluded therefore that that the allegation that in bringing a motion for temporary access 8 months before trial, the Society engaged in an improper exercise of its discretion to design the outcome of the trial is not supported by the evidence.

3. The trial judge ignored the reasonableness behind the Appellant mother’s decision to temporarily return access to the Society’s office

[25] The Appellant mother submits that the trial judge ignored the reasonableness of her decision to end over-night access. She did not want overnight access at her mother’s because the three cats with claws seemed a threat to I. and also because the house was arranged for work. She also submits that she saw a better way to become re-united with her daughter overnight and permanently through a 6 month transition at Birkdale shelter.

[26] It cannot be said that the trial judge ignored anything about the Appellant mother’s decision to end over-night access; including its reasonableness. As noted above, she found that the mother could not manage overnight access as a result of her unstable mental health, her inability to cope with the ordinary stresses of caring for a young toddler and her inability to problem solve: para. 109. This conclusion was supported by the evidence at trial, including the testimony from the grandmother who herself did not understand the decision and the Society who offered to assist with stated problems with the grandmother. She further considered the Appellant mother’s explanation that she needed her own place to live at Birkdale shelter in order to properly care for I. and the Society’s stated concerns at that time regarding the instability of the Appellant mother’s mental health.

4. The trial judge made the error of equating the fact that the Appellant mother did not reveal the auditory hallucinations before October 2014 with a lack of forthrightness

[27] The Appellant mother submits that the trial judge erred in equating the failure of the Appellant mother to disclose that she suffered from auditory hallucinations to the Society until October 2014 with a failure on her part to be forthright. She submits that in doing so the trial judge ignored the evidence of Dr. Araki and Dr. Golts and Miguel De Sousa who each testified that they thought the Appellant mother was open and forthcoming with them respectively about her feelings and her thoughts.

[28] Upon hearing the oral evidence of the witnesses that testified at trial in conjunction with considering the documentary evidence filed, the trial judge determined that all of the witnesses were reliable and credible but for the Appellant mother: paras13-16. She concluded the Appellant mother had a history of not being forthcoming, not only to the Society but also to her doctors, her family members or the court about her substance abuse and her mental health issues. This conclusion was well supported by the evidence which included much more than the fact that the Appellant mother did not reveal the auditory hallucinations to the Society before October 2014 or to Dr. Alsayegh during the first CAMH assessment or to the court in her motion for overnight access.

[29] The trial judge had the benefit of reviewing all of the documentary evidence and hearing the oral evidence from the Appellant mother, the family service, child service and adoption workers, 2 of the Appellant mother’s physicians, 2 of her family members and her addiction counsellor. The trial judge was able to compare the Appellant mother’s respective self-disclosure and affidavit evidence. She concluded that the Appellant mother reported different information to different people she attended on or relied upon for help. The evidence at trial was that at times, depending on the audience, the Appellant mother misrepresented to her family, the Society, the court, her counsellor and her psychiatrists, her history of suicide attempts, her use of cough syrup to get high, the extent of her use of alcohol as a coping mechanism to deal with stress, her paranoid beliefs that she was being harmed in the community or that I. was being harmed in the foster home and that she suffered from the auditory hallucinations that commanded her to act and that she had on occasion complied with these commands. It was with the benefit of a holistic review of the totality of the evidence that the trial judge rendered her conclusion on the Appellant mother’s credibility and her finding that she was not forthcoming with her self-disclosure. Her conclusion was supported by the evidence and entitled to deference.

[30] Contrary to the Appellant mother’s submission, this conclusion is not inconsistent with the testimony of the respective doctors and counsellor who indicated their belief that the Appellant mother was open and forthcoming in her respective reporting with them. The trial judge found the evidence of the Appellant mother’s treating psychiatrist (Dr. Araki), the psychiatrist who treated her while she was in the hospital in May 2015 (Dr. Golts), and the counsellor from CAMH (Miguel de Sousa) to be straightforward and credible: para. 14. She accepted the testimony that the respective individuals believed that the Appellant mother was being open and candid in her reporting with them. The trial judge’s conclusion that the testimony of the Appellant was not credible and that she had a history of not being forthcoming, not only to the Society but also to her doctors, her family members or the court about her substance abuse and her mental health issues, is reflective of an high level assessment by the trial judge of the totality of the evidence of self-disclosure in a the context of a trial; something that each respective physician or counsellor could not have known when receiving the information from the Appellant mother in the context of a one on one assessment. The Appellant mother’s assertion on appeal that all of the doctors read each other’s reports and were therefore aware of the inconsistencies in self reporting is not founded in the evidence and is mere conjecture.

[31] The Appellant mother submits that the trial judge’s comments at paragraphs 62-64 further indicate that she replaced medical opinion with her own misguided opinion. Therein the trial judge recognizes Dr. Araki’s testimony about the Appellant mother’s generally good progress, her commitment to her treatment and her regular attendances with him. She writes, “I appreciate that Dr. Araki as the mother’s treating psychiatrist had some difficulty in his testimony as it is not his role to interrogate the mother or question her truthfulness. As he testified it is his role to be supportive to the mother despite some of the ups and downs in her treatment and her lack of always telling him her entire mental health history, the extent of her use of alcohol or other drugs.” The comments of the trial judge do not reflect the trial judge’s opinion. Rather, they reflect a reasonable inference made by the trial judge and supported by Dr. Araki’s testimony in response to inaccuracies in self-reporting brought to his attention during cross-examination. He testified to his role, as treating psychiatrist to support the Appellant mother’s mental health recovery and not to contradict or cross examine her on reporting inaccuracies. It is not his role to determine truth or credibility. That is the role of the trier of fact; in this case the trial judge. For reasons set our above, I see no error in her findings or inferences.

5. The Appellant mother’s commitment and positive efforts to engage in treatment with her psychiatrist and at CAMH were insufficiently recognized

[32] The Appellant mother submits that the trial judge did not give adequate weight to the Appellant mother’s commitment and positive efforts to engage in treatment with her psychiatrist at CAMH and placed far too much weight on the potential risk presented by auditory hallucinations.

[33] The trial judge recognizes the Appellant’ mother’s regular attendance with her psychiatrist and the number of different medications that have been tried: para. 65. She found as a fact that the Appellant mother is committed to trying to obtain help for her mental health challenges. She commended the Appellant mother for her ability to abstain from the use of cocaine and for her ongoing attendance for substance abuse counselling and for attempting to find better ways to cope with the stresses in her life: para.122. The trial judge concluded that the Appellant mother’s auditory visual and command hallucinations continue to impact her life and her ability to handle every stresses of life: para.65, she continues to struggle with her use of alcohol as a coping mechanism: para. 85, she remains with many challenges to obtain housing: para.97 and that despite the fact that she sought help for her substance abuse and mental health issues, the concerns that caused her to place I. into care in November 2012 have continued: para. 120. These conclusions were supported by the evidentiary trial record and made by the trial judge upon full consideration of all of the evidence of the family service workers, the Appellant mother, Dr. Araki, Dr. Golts, Mr. de Sousa and 2 of the Appellant mother’s family members.

[34] The Appellant mother further submits that the focus on the trial judge’s findings was tainted with a view that auditory hallucinations are an insurmountable barrier to parenting. She points to Dr. Golts’ comment that the Appellant mother continued to endorse ongoing auditory hallucinations of voices conversing with each other but as of May 28, 2015 these were not disturbing and less distracting and Dr. Araki’s comment that the voices are low risk.

[35] As noted above, however, the trial judge considered the continued impact of the auditory visual and command hallucinations to the Applicant mother’s life as only one factor of the many factors that together led to her conclusion that the least disruptive alternative is for the child to become a Crown Ward: para. 121. The evidence supported such a consideration. The Appellant mother’s description of the impact of auditory hallucinations in December 2014 was such that they caused daily disturbances which are very frustrating. In May 2015 she reported ongoing auditory hallucinations of 2 people talking to one another and delusions of a rash on her face that was not visible to staff. Mr. de Sousa testified that the Appellant mother uses alcohol. Dr. Araki’s testified to the negative impact of alcohol use and that in part her mental health has an impact on her ability to parent. Dr. Golts specifically opined that she had limited insight into her longstanding difficulties and maladaptive coping after she returned to “baseline” in May 2015. He recognized that the auditory hallucinations caused paranoid tendencies including concern by the Appellant mother of sexual abuse to I. while she was in foster care. He further opined that those who experience command hallucinations are more likely to experience them in the future. An appeal court is not entitled to intervene simply because it may have weighed the evidence differently. The trial judge’s findings of the impact of auditory hallucinations were supported by the evidence and are entitled to deference.

6. The Appellant mother’s persistent attempts to secure housing led to her eventual success – but these attempts – and this success – were not taken into account by the trial judge

[36] The Appellant mother submits that the trial judge failed to properly consider her efforts and eventual success to find housing. I disagree. The trial judge carefully considered all of the evidence of the Appellant mother’s efforts to obtain housing throughout the Society’s involvement whit her since 2012: paras.86-97. She recognized that on May 7, 2015 the Appellant mother moved into the Birkdale shelter. She was absent for a few weeks due to her hospitalization but returned after her release and was currently residing there.

[37] The trial judge also considered the evidence of Dr. Golts who advised that the Appellant mother reported she was worried that something at the Birkdale shelter caused her break-down either something in the air or someone tampering with her mediation or that she was poisoned. The Appellant mother testified that she knowingly put her placement within Birkdale shelter in jeopardy when she consumed alcohol during the trial, in violation of the rules of the shelter.

[38] The trial judge further considered the Appellant mother’s plan of care which included continuing to reside in a private room at the Birkdale shelter where she and the child would be part of a reunification program for up to 6 months to assist the transition of the child into her care, after which she would be assisted in finding her own accommodations: para. 199.

[39] The evidence before the court was that the Appellant mother had not been able to manage her housing throughout the years of Society involvement despite repeated assistance with arranging housing. The trial judge found that the Appellant mother faced challenges to obtaining housing after Birkdale. This finding was well supported by the evidence.

7. The trial judge did not consider the huge strides the Appellant mother made and her overall capacity for change, as demonstrated since access to the child resumed in May 2013

[40] The Appellant mother submits that the trial judge failed to give any weight to the Appellant mother’s capacity to change since voluntarily placing I. in the care of the Society, as an indication that she possessed the necessary adaptability in the future to care for her daughter.

[41] It bears repeating here that it is not the role of an appellant court to determine whether the trial judge’s individual findings are properly weighed and reasonable. Rather, the function of this court is to determine whether the trial judge has correctly stated the law and applied it to the facts absent palpable and overriding error. Having said that, considering her reasons as a whole, in my view, the trial judge did give proper weight to the Appellant mother’s efforts since seeking assistance from the Society in the summer of 2012: para.120-122. She concluded after consideration however that for the last 30 months the Appellant mother has still not been able to stabilize her life to be able to be in a position to resume care of her young child; the least disruptive alternative is for the child to become a Crown Ward. This conclusion was well supported by the evidence before her.

8. No evidence was adduced by the Society that continued access between the Appellant mother and the child will impair future opportunities for adoption

[42] The Appellant mother concedes that the trial judge made no error of law in her application of s.59 (2.1) of the Child and Family Services Act, R.S.O. 1990.

[43] The Appellant mother argues that there was no evidence adduced by the Society that continued access between the child and the Appellant mother would impair future opportunities for adoption. It was not up to the Society however to do so. The Society had no burden to adduce evidence that the access will impair the opportunity to adoption. Rather, the onus to rebut the presumption against access to a Crown Ward lied only with the Appellant mother as the person seeking access : ss.59 (2) (2.1) of the Child and Family Services Act, R.S.O. 1990, c. C.11; CAST v. TL (2010) O.J. No. 842 (SCJ) at para. 25. The Appellant mother had the onus of establishing that access will be both meaningful and beneficial to the child and, if so established, that the access will not impair the opportunity for adoption.

[44] Further, the trial judge found that even if the Appellant mother was able to meet the first prong of the test, which she found the Appellant mother did not, there was clear evidence that any access would impair the child’s future prospect of adoption. This finding was well supported by the evidence: paras.152, 156, 157

Fresh Evidence

[45] On consent, I received fresh evidence on the appeal from both Appellant mother and the Society.

[46] The Appellant mother submitted two affidavits from her, both sworn on December 21, 2015. Therein she reviews some of the evidence that was before the trial judge and then deposes that “since the trial my mental health, living arrangements and relationships have improved. I now have medication which seems to work.” She further deposes that she has recently been granted access visits with her older daughter. I am advised that the father of her older daughter is the custodial parent and that the Society has never had any involvement with the issue of access. The Appellant mother further deposes that she has rented a basement apartment and lives there with her new boyfriend, an acquaintance of hers for 10 years. She pays her share of the rent through money she receives from the Ontario Disability Support Program. A number of exhibits were attached to one of her affidavits:

i) A letter dated November 18, 2015 to whom it may concern from Dr. Araki. The doctor writes at the Appellant mother’s request and states that he has attended to her at least 6 times during the last 6 months. He confirms her diagnoses of alcohol dependence, cannabis abuse (in sustained remission last use was a year ago), cocaine dependence (in sustained remission last use 3 years ago), post-traumatic stress disorder, psychotic disorder not otherwise specified, social phobia and provisional schizoaffective disorder. He further states “she has been on abilify for the last 3 weeks and has been in stable condition for the last few months.”

ii) A consultation note dated December 10, 2015 written by Saadia Sediqzadah, MD (PGY-1 Psychiatry), reviewed, edited and amended by Kam Balchand, MD, FRCPC. The note thanks Dr. Araki for the referral and notes that the purpose of the consultation was for a second opinion on the Appellant mother’s diagnosis and her current mental state. After setting out what the Appellant mother reported to the doctors, the impression is “…there is not enough evidence to meet criterion A of any of the DSM-V psychotic disorders, such as schizophrenia. There is no evidence of any manic episodes in the past. There appears to be history depressive episodes but it seems it has been a few years since the last episode. As it stands, we feel that [the Appellant mother’s] presentation is in keeping with psychotic disorder NOS.” “She comes across as stable, functioning fairly well and highly motivated to continue to improve her life.” In terms of a plan, the report reads in part that the Appellant mother feels that the recent increase in dose of abilify has made an improvement in her mood and auditory hallucinations and the doctors’ thoughts that she may benefit from a treatment program aimed at building up her skills to manage distressing emotions if she is not able to adequately control her alcohol use.

iii) A residential tenancy agreement made on the 29^th of July 2015 in the name of the Appellant mother as Tenant for a single family dwelling at a basement apartment starting from September 1, 2015 for a period of 1 year, with a monthly rent of $800. Also included are receipts for rent received by the landlord from the Appellant mother. In her affidavit of September 21, 2015 she deposed that that she lives with her boyfriend, an acquaintance of hers for 10 years. He is a roofer with the same employer for 10 years. She further marks as an exhibit a letter dated December 8, 2015 from the Toronto Police Service that states that a search of the National Criminal Records repository maintained by the RCMP did not identify any records for a person with the name or birth date of her boyfriend.

[47] In terms of its fresh evidence, the Society filed the affidavit of Lesley Defreitas sworn January 18, 2016. Ms. Defreitas is a child protection worker with the Society. She has been I.’s worker since she came to the Society’s care in November, 2012. She has also been the case manager for the Society in its efforts to secure a permanent adoptive placement for I.

[48] Ms. Defreitas deposes that on July 13, 2015 the Appellant mother had her final good-bye access visit with I. She met the Appellant mother after the visit. She discussed that the Appellant mother could provide information for I.’s life book and offered to set up a meeting between the Appellant mother and the adoption department so that the Appellant mother could provide any of her thoughts or wishes for placements for I. She arranged an appointment for the Appellant mother for July 16, 2015.The Appellant mother did not attend the meeting and did not cancel the meeting in advance or otherwise indicate she would not be attending.

[49] Ms. Defreitas further deposes that the Society service team met with the adoption department and on November 17, 2015 an appropriate approved adoptive home was scheduled for I. After November 17, 2015 a process was undertaken to connect I. with the proposed adoptive home. This was successful. I. was placed in the home as a fostering with a view to adopt on December 17, 2015.

[50] Ms. Defreitas further deposes that she has visited I. in the home and that I. is thriving. The only impediment to finalizing the adopting is the outstanding appeal.

[51] I have determined for reasons set out above that the trial judge made no palpable or overriding error on the facts or the application of the law to the facts. I have reviewed and considered the fresh evidence submitted by the Appellant mother and the Society. In my view it is not such to so drastically change the underlying factual matrix presented by the evidence at trial and would therefore not have impacted the findings and conclusions of the trial judge. I make this conclusion for the following reasons taken together:

i) The consultation note dated December 10, 2015 written by Saadia Sediqzadah, MD (PGY-1 Psychiatry), reviewed, edited and amended by Kam Balchand, MD, FRCPC carries little weight. The court was not provided with the curriculum vitae’s of the doctors nor is it clear who examined and interviewed the Appellant mother, or for how long and what if any of the Appellant mother’s relevant medical history was reviewed prior to opinion. More significantly, however, the medical conclusions as set out therein appear to be founded on the Appellant mother’s self- disclosure. The doctors’ report that she denied command auditory hallucinations and that she reported she experienced no paranoia, no delusions or skin reactions when she is abstinent from cocaine. This is inconsistent with the evidence at trial. There is no mention that she disclosed her involuntary hospitalization under the Mental Health Act, R.S.O 1990, c. M.7 in May 2015, there is no mention of Dr. Golts or his conclusions, the history fails to describe the Appellant mother’s suicide attempt by cutting her wrists or that she uses alcohol to cope with stress. There is no evidence of the doctors’ knowledge of the medication regime attempted by Dr. Araki before settling only recently on abilify. Given the inaccurate and incomplete details left out of her self-disclosure, the consultation report supports the trial judge’s finding that the Appellant mother has a history of not being forthcoming to her doctors about her substance abuse and her mental health issues and not the impressions of the doctors as stated therein.

ii) The letter dated November 18, 2015 to whom it may concern from Dr. Araki demonstrates that the Appellant mother has been attending regular appointment with Dr. Araki during the last 6 months, that she has been on abilify for the last 3 weeks and stable for the last few months. This is not fresh evidence sufficient to change the factual matrix at trial. The trial judge found that the Appellant mother was making regular attendances with Dr. Araki at the time of trial and that he was trying a number of different medications. She considered the testimony of Dr. Araki about the Appellant mother’s generally good progress, her commitment to her treatment and her regular attendances with him. The trial judge further found that it was clear that the Appellant mother was committed to trying to obtain help for her mental health challenges.

iii) The fresh evidence demonstrates that the Appellant mother has a rented apartment where she lives with a new man with whom she has a relationship and that she has now been given restored access to her older daughter by the biological father who has custody and with whom there is family law litigation not involving the Society. It is good to see that the Appellant mother has overcome her self- imposed obstacles, as noted by the trial judge, of living in a basement with a roommate. It is good to see that the Applicant has been able to secure housing. I. has been in the care of the Society for almost her entire life. She has had no access with her mother in 8 months. She has never met the new man in the Appellant mother’s life, with whom she resides. The relationship commenced after the order of Crown Wardship was made. The evidence at trial was that there was very little contact between I. and her half-sibling. There is no evidence sufficient to demonstrate that the Appellant mother’s new living arrangement or restored access with her older daughter is in I.’s best interests.

Conclusion

[52] My role on this appeal is to determine whether the trial judge made a palpable or overriding error on the facts or the application of the law to the facts. I find no such error.

[53] The fresh evidence presented by consent on appeal is not such to so drastically change the underlying factual matrix presented by the evidence at trial.

[54] Accordingly the appeal is dismissed without costs. The child, I., born […], 2012 shall be placed in a permanent adoptive home without further delay.

CHIAPPETTA J.

Date: February 4, 2016