CR v. CAS, 2017 ONSC 3974

CR v. CAS, 2017 ONSC 3974

CITATION: CR v. CAS, 2017 ONSC 3974

COURT FILE NOS.: 23/2016 & 24/2016

DATE: 2017-06-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CR

Appellant

– and –

The Children’s Aid Society of Haldimand and Norfolk, JC & JK

Respondents

Edward Kiernan - Counsel for CR

Birkin Culp - Counsel for CAS

Justine Lyons – Counsel for JC (biological father of K.)

JK – Self Represented (biological father of I.R. and E.R.)

Kathryn Junger – Counsel for The Children’s Lawyer

HEARD: June 22 & 23, 2017

The Honourable Justice James W. Sloan

REASONS FOR JUDGMENT

1This action is an appeal from the decision of Justice Baker dated June 1, 2016.

2JK did not take part in this appeal.

3There are 3 children involved in this appeal, I.R. born […], 2009, E.R. born […], 2010 and K.R. (K.) R. born […], 2014.

4The appellant is the biological mother of all 3 children. JK is the biological father of I.R. and E.R. and JC is the biological father of K.. K. has been diagnosed with Down’s syndrome.

5Justice Baker ordered that I.R. and E.R. were to be made Crown wards without access and that JC (the biological father) should have custody of K. without access to the appellant mother.

6The appellant appeals the Order making I.R. and E.R. Crown wards without access and in this portion of the appeal (at least in theory) she is representing herself.

7The appellant is not appealing the custody order with respect to K., but is appealing that portion of the order which does not afford her any access to K.. She is represented by Mr. Kiernan with respect to the issue of access to K..

8I.R. was taken into care at birth and returned to the appellant under supervision of the CAS 20 months later.

9When E.R. was born, ([…], 2010) the appellant appeared to be meeting the minimum requirements with respect to her ability to parent, and therefore both children remained in the care of the appellant.

10I.R. and E.R. were apprehended in May 2014 after I.R. disclosed that the appellant was hitting him with a stick.

11The children were returned to the mother over the objection of the CAS pursuant to a temporary supervision order. One of the terms of the order was that neither the mother nor anyone else was to use any physical discipline.

12In October 2014 shortly after the birth of K., the CAS, after verifying physical abuse, apprehended all 3 children.

13I.R. and E.R. have been with the same foster parents that I.R. was with for the first 20 months of his life, since October 2014.

14By my calculations I.R. has been alive for approximately 94 months and has been in care for approximately 54 months, which is over 57% of his life. E.R. has been alive for approximately 77 months and has been in care for approximately 34 months which is over 44% of her life.

15The appellant has had limited access to I.R. or E.R. since October 2014 which is now approaching three years.

16K. was placed in his father’s care under a supervision order in August 2015.

17The appellant was having supervised access to K. three times a week until the judgment on June 1, 2016, at which time access ceased.

18This trial lasted nine days over the first five months of 2016, and judgment was delivered on June 1, 2016.

19In addition to the three children previously mentioned in this judgment, the appellant has three other children who are now adults, A., R. and J.. All three of these children were previously found to be in need of protection. A. was made a Crown ward without access and the two other children were placed in the custody of their father, with limited access to the appellant.

20The appellant has not had contact with A.in over eight years and no contact with the other two children since 2014.

21A. testified in the trial before Justice Baker.

22The appellant has been involved off and on with child welfare authorities over the past seventeen years, going back to the year 2000.

23The appellant pled guilty to assaulting A. in 2007 and charges of assault against her with respect to I.R. and E.R. were resolved by way of a peace bond.

Scope of Appellate Review

24This case took nine days of trial to complete. The appeal documents, including the transcripts of all the evidence almost filled two entire banker’s boxes.

25The scope of Appellate review is set out in the 2004, Ontario Court of Appeal decision in Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765 BLR (3^rd) 165, at paragraphs 292 to 295.

26At paragraph 294, after stating that the “palpable and overriding” standard demands Appellant deference to findings of fact made at trial the court goes on to state:

In a case as lengthy and factually complex as this case, the appellant Judges are very much like the blind men in the parable of the blind men and the elephant. Counsel invite the court to carefully examine isolated parts of the evidence, but the court cannot possibly see and comprehend the whole of the narrative. Like the inapt comparisons to the whole of the elephant made by the blind men who felt only one small part of the beast, appellant fact finding is not likely to reflect an accurate appreciation of the entirety of the narrative. This case demonstrates that the “palpable and overriding” standard of review is a realistic reflection on the limitation and pitfalls inherent in Appellant fact finding.

Grounds of Appeal

27The appellant has listed fifteen grounds of appeal, some of which are overlapping and in essence boil down to the appellant alleging that the learned trial Judge erred:

1. by selecting and relying on statements of trial witnesses, aged six and four years, from the trial of the mother on criminal charges, while giving no weight to other, contradictory statements from the same trial testimony, and by relying on out-of-court hearsay statements by the same children in preference to adults who testified under oath;

2. by not applying a uniform standard for assessing the credibility of adult witnesses appearing in the trial, by making allowances for problems in some witnesses’ evidence, while negatively assessing witnesses for the mother for the same or similar problems;

3. by failing to follow the mandatory provision of section 57(1.1) of the Child and Family Services Act (CFSA) for access to a parent, who has been exercising access, when making an order for custody under section 57.1 of the Act;

4. by failing to consider the possible harm to K. from stopping access;

5. by wrongly assessing the plans offered by the appellant for access to K.;

6. in her assessment of the medical and other evidence and drawing an incorrect inference that the mother had physically abused the children while she disregarded evidence to the contrary;

7. in finding that a supervision order would not adequately mitigate the Society’s protection concerns for I.R. and E.R..

Did the Trial Judge err by relying on selected statements of trial witnesses, aged six and four years, from the trial of the mother on criminal charges, while giving no weight to other, contradictory statements from the same trial testimony, and did the learned trial Judge err by relying on out-of-court hearsay statements by the same children in preference to adults who testified under oath?

28The appellant submits that there was no disclosure of abuse to the family doctor or at the criminal trial by E.R. and that the disclosure of abuse from her does not appear until one year later when she allegedly tells her foster mother.

29The evidence of I.R. from the criminal trial was simply unsatisfactory because on a couple of occasions when being questioned by each Counsel he stated that he was, and then was not, abused by his mother.

30The appellant submits, that where, what the trial Judge referred to, as the “tested evidence” from the criminal trial was inconclusive, it was simply unfair to accept hearsay evidence, which is very difficult for the appellant to contest.

31The appellant also referred the court to other times when she alleges I.R. gave contradictory evidence about abuse and further at paragraph 30 of her factum discusses other events, where she states I.R. did not report being abused or being afraid of physical abuse.

32In addition, the appellant submits there is no objective proof that any of the injuries sustained by the children were from abuse and that the children did not disclose any abuse to CAAP.

33The respondents submit that the Judge carefully went through the evidence and that nothing in her reasons show that she misunderstood or misapprehended any of the evidence.

34As they stated several times during this appeal, the trial Judge is owed a great deal of deference and the appellant has not shown that the Judge made any palpable and overriding errors.

35In particular, they submit the trial Judge referred to all the issues raised by the appellant and referred to all of the evidence that was both for and against the position of the respondents.

36They submit the trial Judge, under the CFSA, can take into account hearsay evidence.

37The respondents further submit that the trial Judge dealt with the hearsay aspect of the evidence and while it may not be under oath as might be in a trial, she is allowed to consider it under s. 50(1) (a) & (b) of the CFSA, which allows the court to consider a person’s past conduct towards children.

38The respondents further submit, that even without the statements from the criminal trial, there was ample evidence to support the Judge’s conclusions, including the dramatic impact on the children testifying at the criminal trial, utterances by the children to third parties along with the testimony of Drs. Niec & O’Toole, Ms. Hannam, Mr. C., Ms. McFadden & Ms. Elfner, as detailed from approximately paragraph 211 to 258 of her judgment.

39There was ample evidence that I.R. did not want to testify at the criminal trial. The foster mother testified about difficulties getting the children to the courthouse, that they had to attend for two days, that they were required to wait in a windowless dark grungy room for the majority of the first day, with no appropriate toys for children. They then had to return to the courthouse to the same grungy room the next day before they testified.

40On the second day I.R. lashed out at his foster mother, punched her and advised her he did not want to continue to testify and he had to be carried back to the witness box after a recess.

41Dr. Niec, an expert in child development, explained that I.R. would have wanted to please the adult asking him repeated questions and he would be inclined to think his previous responses were incorrect, so he would change them to please the questioner.

42With respect to I.R., Judge Baker was also the trial Judge at the appellant’s criminal trial where he testified, so she was in an unusually good position to decide what weight, if any, to give to his evidence.

43I do not find any palpable and overriding error on this issue and since the trial Judge’s decision is entitled to deference I dismiss this ground of appeal.

Did the trial Judge assess the credibility of adult witnesses appearing in the trial differently, and make allowances for problems in some witnesses’ evidence, while negatively assessing witnesses for the mother for the same or similar problems?

44The appellant submits that the evidence of Ms. Crosbie and Ms. Hannam differed on the same topic, yet she found them both credible.

45The evidence was with respect to the orderliness of the appellant’s home and whether or not either party had reason to suspect abuse.

46This difference may be explained in more than one way, because it appears that both these ladies would have attended the appellant’s home on very different occasions.

47Also since Ms. Crosbie is a nurse, she would have made an appointment before attending at the home, whereas Ms. Hannam being the appellant’s mother may not have.

48The appellant also submits that the trial Judge dealt with the reliability of Mr. C.’s and Mr. Kilian’s evidence differently.

49While this may be true, the trial Judge reviewed the evidence and gave adequate reasons why she preferred some evidence and rejected other evidence.

50I do not find any palpable and overriding error on this issue and since the trial Judge’s decision is entitled to deference I dismiss this ground of appeal.

Did the trial Judge fail to follow the mandatory provisions of section 57(1.1) of the Child and Family Services Act for access to a parent who has been exercising access when making an order for custody under section 57.1 of the Act?

51The appellant submits the trial Judge did not apply the presumption for making an access order under this section.

52Although the trial Judge may not have specifically set out in her reasons for judgment the wording of the section, there is no doubt from reading her judgment as a whole that she satisfied herself that continued contact between the appellant and K. would not be in his best interest.

53The trial Judge reviewed a significant amount of evidence, including why all six of her children were removed from the appellant’s care, that she continued to use physical discipline, that she undermined contact between some of the older children and their father, that she undressed K. to check for marks on his body during supervised access visits, that she had for a significant period of time only seen him in a supervised access setting, that he was three months of age when apprehended and that he has been diagnosed with Down’s syndrome.

54She then made a decision based on s. 1(2) (2) of the CFSA that the least disruptive course of action available to her in this case, in the best interests of the child, was to deny access.

55I do not find any palpable and overriding error on this issue and since the trial Judge’s decision is entitled to deference I dismiss this ground of appeal.

Did the trial Judge fail to consider the possible harm to K. from stopping access?

56Almost all of K.’s short relationship with his mother has been in the artificial confines of a supervised access centre.

57K. is almost 3 and unfortunately he is a nonverbal child with Down’s syndrome and other medical problems.

58No direct evidence about any emotional harm that K. might have suffered for stopping access was presented at the trial of this matter more than a year ago.

59In paragraph 269 of her judgment the trial Judge found that K. was doing well in his father’s care where he had been for a significant portion of his life.

60In paragraph 281 of her judgment the trial Judge accepts evidence describing the mother during access visits with K. as being unengaged, displaying little effect and sometimes flipping her phone about.

61While the trial Judge did not specifically mention that she did not think stopping access would cause K. any harm, it is obvious from her overall judgment that she did not think so.

62I do not find any palpable and overriding error committed by the trial Judge on this issue and since her decision is entitled to deference I dismiss this ground of appeal.

Did the trial Judge wrongly assess the plans offered by the appellant for access to K.?

63The appellant took the court through approximately 7 to 10 pages of the appellant’s transcript from the trial and submits that the positive evidence given by the appellant is not commented on by the trial Judge.

64The appellant then took the court through several other pages of the transcripts of both Ms. Burke and Ms. Foote and submits that the positive evidence referred to the court is not commented on by the trial Judge.

65In addition, the appellant submits that her intentions were misread and that she was not launching an avalanche of malicious attacks against Mr. C..

66In relation to the above few paragraphs, she submits a Judge cannot simply only comment on negative aspects of evidence without also acknowledging the positive ones.

67With respect to the allegation of the appellant trying to undermine fathers in the past, the appellant states that the children would have been 2 and 5 when the agreed statement of facts were agreed to and she should not be held responsible if the children would not repeat the allegations to a third party that they told her about.

68In essence the appellant submits that the trial Judge was simply not balanced because she left out commenting on such a large amount of evidence.

69The respondents referred the court to the case of Van de Perre v. Edwards, 2001 SCC 60 with the court at paragraph 13 stated:

First, finality is not merely a social interest; rather, it is particularly important for the parties and the children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial Judges decision. Second, an appellant court may only intervene in the decision of the trial Judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial Judge enables a balanced valuation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect the child.

70They urge me to use a wide lens when viewing all of the evidence on this issue.

71The respondents submit that the trial Judge does not have to refer to every piece of evidence and that there was more than ample evidence for her to come to the conclusion that she did.

72The transcripts of evidence from the trial comprise nine volumes and fills almost one banker’s box. The trial Judge cannot be expected to comment on every piece of evidence. As it is, the trial Judge’s reasons comprise forty-nine pages and 286 paragraphs.

73I do not find any palpable and overriding error on this issue and since the trial Judge’s decision is entitled to deference I dismiss this ground of appeal.

Did the trial Judge fail to assess or wrongly assess the plans offered by the appellant for access to K.?

74The appellant proposed that she either have supervised access at Dalhousie Place or supervised by some responsible adult(s) and suggested her pastor, Jeff MacLeod, and/or his spouse, Kerri MacLeod.

75As a fallback position she would like ongoing information with respect to K.’s education, medical conditions and photographs.

76The appellant points to the fact that she has had supervised access at Dalhousie Place before.

77She further submits that Jeff MacLeod is a mental health and addictions counsellor whose credentials include a Master’s degree in counselling psychology and that Kerri MacLeod is a registered early childhood educator employed by REACH and she has been approved by the CAS to supervise access visit visits at her church for community members.

78She therefore submits there is nothing to suggest that either of these people would fail in their duty to protect K.R., if either of them supervised her access visits.

79The respondents submit that the appellant must show that the trial Judge misapprehended evidence about Jeff MacLeod.

80The respondents further submit that if the appellant wishes access to K. it should be done through a motion to change and not as they described it, as an end run in this appeal. They submit that any motion to change should be brought under section 29 of the FLRA with fresh evidence about what changes have taken place since the judgment and suggest that these changes could include changes that the appellant has made in her life.

81They point out that even in the commercialized supervised access centre with trained professionals present, the appellant continually undressed the child looking for bruises and complained about the father not looking after the child’s constipation.

82They submit that the trial Judge considered the current and long-term interests of K., heard all of the evidence and concluded that access by the appellant was not in his best interests.

83From a procedural point of view, I see nothing wrong with the appellant appealing the findings of the trial Judge on access to K. in this appeal.

84Although a different Judge may have come to a different conclusion on supervised access, particularly with respect to the abilities of Jeff and Kerri MacLeod to supervise, that is only one part of the equation.

85The trial Judge is charged with the duty to try to determine whether or not any form of access to the mother at this time would be in the best interests of K..

86In coming to that decision she was able to take into account, what if any relationship she thought there currently was between the appellant and K.. Of course now at this stage, another year has gone by where there has been no contact between the appellant and K..

87The learned trial Judge would also take into account the appellant’s behaviour at the supervised access sites, which involved stripping K. and pressing the constipation issue. She would also take into account the appellant’s failure to follow court orders with respect to smoking marijuana and sending E.R. to school.

88She would also take into account the appellant’s “parenting style”, which was described as highly authoritarian and harsh, and that the appellant did not address the children’s emotional and developmental needs.

89The appellant appears to have a complete inability to understand the degree of distress that the children were suffering, had no insight into her own deficiencies in parenting and did not accept any responsibility for the situations presented.

90Specifically with respect to I.R., although she knew that his behaviour was extremely problematic, she failed to seek the assistance recommended by the CAS that I.R. needed.

91The court was not directed to any evidence about whether or not the appellant has educated herself about how to parent a child with Down’s symdrome.

92The trial Judge would also take into account evidence of some of the visits at the supervised visit site where the appellant appeared unengaged, displaying little effect and was sometimes flipping her phone about.

93Based on K.’s medical condition, he will have a much more difficult life than a non-Down’s syndrome person.

94K.’s caregiver, Mr. C., will, to use the vernacular “have his hands full” caring for K., in addition to living the rest of his life. Absolutely the last thing he would need would be any interference from the appellant.

95I do not find any palpable and overriding error committed by the trial Judge on this issue and since her decision is entitled to deference I dismiss this ground of appeal.

Did the trial Judge erred in her assessment of the medical and other evidence and draw an incorrect inference that the mother had physically abused the children and did she disregard evidence to the contrary?

96The appellant submits that the trial Judge failed to assess the medical evidence, or alternatively failed to assess it properly.

97The appellant directed the court to the allegations contained in her factum at paragraph 30 and paragraphs 55 through 75.

98The appellant submits that Dr. O’Toole, who was the first doctor to see the children after they were apprehended from the appellant’s care, said, based on the condition of the children, he would likely not have called the CAS and he did not refer the children to CAAP.

99In addition, the appellant states that the CAS worker, Ms. McFadden, had regular contact with the children and particularly throughout the summer would have been able to note any bruising, however she does not note any. In addition, the appellant states that Ms. McFadden would have been aware of her background.

100She therefore submits that the Judge must balance the evidence between the parties and she has not done so.

101She further submits that it was absurd of the trial Judge to find there was maltreatment, without any detection of it.

102In response, the respondents state that there is no palpable and overriding error in the Judge’s assessment of the evidence or in her findings.

103They submit that the Judge referred to Dr. O’Toole’s evidence, including in paragraphs 231 and 232 of her judgment. Particularly in paragraph 231, she refers to the doctor stating that the mark on E.R.’s buttocks could be associated with an inflicted injury and would not be inconsistent with being hit with a stick.

104At paragraph 37 of her judgment the trial Judge comments on Dr. O’Toole’s admission medical assessment.

105At paragraph 228 of her judgment the Judge comments on some of the evidence of Ms. McFadden and notes that her visits would have been prescheduled and that the appellant stayed relatively close to Ms. McFadden during her meeting with the children. The Judge also made note that I.R. had previously told the worker that his mommy coached him about what he should say to the worker.

106The respondents further submit, that in essence, what the appellant is trying to do is reargue the trial and that is not this court’s function.

107They submit that the appellant is essentially trying to cherry pick specific pieces of evidence, however the trial Judge has an obligation to look at the totality of all of the evidence.

108To this end they submit that there were other witnesses and evidence which assisted the trial Judge in corroborating the children’s statements, including the CAAP assessment, the appellant’s past parenting, her views on parenting, including physical discipline and evidence from the criminal trial.

109The Judge particularly noted that the CAAP team concluded that I.R. suffered from trauma and that the appellant acted as a trauma trigger for him. In particular, she noted that although I.R. had been with his mother for three years, he was unable to describe a single positive thing about her when asked.

110In addition, the trial Judge referred to the findings of the Impact of Maltreatment Assessment dated September 25, 2015, by the Child Advocacy and Assessment Program, actual observation of injuries on the children, past parenting, and numerous witnesses including society workers, the appellant’s daughter A., the foster mother and Drs. O’Toole and Niec.

111I do not find any palpable and overriding error committed by the trial Judge on this issue and since her decision is entitled to deference I dismiss this ground of appeal.

Did the trial Judge err in her finding that a supervision order would not adequately mitigate the Society’s protection concerns for I.R. and E.R.?

112The appellant concedes that she essentially wants a new trial, and for the court to consider this ground of appeal, it would have to find in her favour on most, if not all, of the other grounds of appeal.

113Since the appellant has been unsuccessful on all previous grounds of appeal, I dismiss this ground.

Global Assessment

114Leaving aside the allegations of whether the children were hit with a stick, the following statements appear to be true.

115The appellant either did not know or refused to acknowledge that E.R. had problems with her speech. Even after E.R. was found by the Haldimand speech and language program to have moderate articulation delay and expressive speech delays the mother refused to acknowledge that there were any difficulties with her speech.

116Notwithstanding their very young ages, the children were very regimented in their behaviour when returning home from school.

117The appellant was constantly telling the children what they should and should not do and seemed to focus on finding fault with them instead of focusing on their positive behaviours. This can only create negative self-esteem which often leads to lifelong problems.

118She described herself as being strict, including smacking or slapping the children, and with the exception of K., spanking them. In addition, she used lengthy timeouts and she did not see anything wrong with these forms of discipline.

119She does not believe that spanking is abuse.

120She had a complete inability to understand the degree of distress the children were experiencing. In addition to having no insight whatsoever, she refused to accept any responsibility for the situation.

121The Child Advocacy and Assessment Program (CAAP) determined that the children have experienced complex trauma in the mother’s care and it was believed that they had sustained emotional harm. The CAAP went on to conclude that the mother was highly authoritarian and harsh, and that she did not address the children’s emotional and developmental needs.

122No matter how the two scars on I.R.’s head came into being, she did not seek any medical attention for the initial injury. This would suggest several possibilities, running the spectrum from not caring, to not knowing what to do, to trying to hide the injury from the authorities.

123Despite it being a term of her supervision order not to use marijuana, the appellant continued to use marijuana when the children were in her care.

124Despite it being a term of her supervision order that she would send E.R. to school she neglected to do so.

125She seems to think court orders have no meaning or consequences.

126Despite describing I.R.’s behaviour as defiant and wondering if he had mental health issues and the fact that she did not enroll him in kindergarten because she felt his behaviour was too problematic, she failed to seek the assistance of her family doctor or a behavioural management counsellor as suggested by the CAS.

127In spite of the above, it was the appellant’s opinion that she had done a phenomenal job in parenting.

128Based on the above facts, Dr. Niec concluded that the appellant has a complete inability to understand the degree of distress the children were suffering, had no insight into her own deficiencies in parenting, did not accept any responsibility for the situation and presented as paranoid with respect to the CAS.

129She therefore essentially concluded that there is no indication that the appellant will ever change.

130A child’s development does not wait for the “niceties” of lengthy and protracted legal proceedings. The time from apprehension by the CAS until now has covered a large portion of I.R.’s & E.R.’s young lives. This is the time in their lives, which is generally accepted to be critical for positive child development of love, trust and positive self-image along with other factors.

131Importantly for I.R. and E.R. there is a foster family where they have resided for a significant portion of time who are willing to adopt both of them so that they will remain together and they appear to be doing well in this environment.

Costs

132I therefore dismiss both appeals without costs.