Children's Aid Society of Toronto v. RAR
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: CHILDREN'S AID SOCIETY OF TORONTO, Applicant/Respondent in Appeal
AND:
RAR (mother), Respondent/Respondent in Appeal
AND:
KAH (FATHER), Respondent/Appellant in Appeal
BEFORE: C. Horkins J.
COUNSEL: Karen Freed, for the Respondent Children's Aid Society of Toronto Alex Novak, for the Respondent RAR (mother) Elizabeth-Julien Wilson, for the Appellant KAH (father) Lauren B. Israel, for the child, YAH
HEARD at Toronto: January 30 2017
ENDORSEMENT
1The appellant KAH is the father of the child YAH (“the child”). The father appeals the final order of Justice C. Jones (“the trial judge”) of the Ontario Court of Justice dated June 1, 2016.
2The Children’s Aid Society’s (“the Society”) initial child protection application was brought in January 2012 and later amended. In February 2015, the court found that the child was a child in need of protection. In the fall of 2015, a trial was held dealing with the disposition of the Society’s child protection application. For most of his life, the child has been in and out of the Society’s care.
3After a lengthy trial involving extensive evidence, the trial judge ordered that the child be made a ward of the Crown and be placed in the care and custody of the Society. The trial judge also made the following orders dealing with access.
The mother, RAR, is granted access to the child and the child is granted access to his mother. This access is in the discretion of the Society, with duration and frequency to be determined by the Society. Such access is to be supervised in the discretion of the Society.
The child is granted access to his father. The child is the holder of the access right. The access is in the discretion of the Society, taking into account the wishes of the child and any treatment needs he may have, with the duration, frequency and supervision of the access to be in the discretion of the Society.
The father shall not hold the right of access to the child.
4The father seeks an order setting aside the order of the trial judge and placing the child in his care and custody, under a supervision order of the Society. Alternatively, he seeks an order providing him with access to the child.
5The mother has not appealed. She supports the Society’s position that the appeal should be dismissed. The Office of the Children's Lawyer (“Children's Lawyer”) represents the child on this appeal. The Children's Lawyer also supports the Society’s position.
standard of review
6The standard of review on an appeal from a judges' order is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, the Court stated that there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
Grounds of Appeal
7The father’s grounds of appeal were clarified during his counsel’s submissions. No errors of law are alleged. The appeal concerns the application of the law to the facts. In essence, the father submits that the trial judge misapprehended the evidence and therefore made palpable and overriding errors that are described as follows:
(i) The trial judge misapprehended the evidence when she found that the father’s proposed plan of care for the child was not viable or less viable than the Society’s plan of care (specifically Crown wardship).
(ii) When the trial judge denied the father’s request to hold the right of access to the child and gave the child the right to hold such access, the trial judge erred in “interpreting and applying the best interests of the child”.
(iii) The trial judge erred because she did not give consideration and/or weight to all relevant evidence.
analysis
8The trial judge's decision is thorough and well organized. The evidence is reviewed and considered in detail. Each finding is supported by evidence.
9I do not accept that the trial judge erred as alleged. The appellant has not demonstrated that the trial judge made any palpable and overriding errors. The trial judge made several findings of fact that supported the orders she made. My reasons follow.
Ground of Appeal #1
10This ground of appeal focuses on para. 379 of the trial judge’s reasons where the judge stated:
The father has had only supervised access with the child in a therapeutic setting, for one hour every week or every two weeks. The step-mother and the child’s siblings have not attended access even with this frequency. The father has not had the care of the child without supervision since 2014 and since then, he has not been responsible for the parenting of the child for any considerable periods of time. It would not be realistic nor in the child’s best interests to consider placement of the child in the father’s care these circumstances. Coupled with the father’s lack of understanding of the child’s issues and lack of skills to appropriately address the child’s behaviours, this would be a set- up for failure.
[Emphasis added.]
11The context of this paragraph is important. After carefully reviewing the extensive evidence that was presented at trial, at para. 369, the trial judge commenced her lengthy analysis of the issues and articulated her decision.
12The issues were two-fold: “what is the appropriate order to be made for the care and placement of the child and secondly, what access order, if any, should be made between the child and other members of his family.”
13The trial judge correctly stated that the court was obliged to consider the “least disruptive alternative, adequate to address the risks to the child, and consistent with his best interests.” In considering the child’s best interests, the court reviewed the list of factors set out in s. 37(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”). She conducted a thorough examination of the factors at paras. 372-426 of her reasons.
14The first factor is the child’s physical, mental and emotional level of development. The trial judge was considering the child’s attachment issues and his aggression against others, when she summarized at para. 379 why the father’s plan of care was not in the child’s best interests.
15The father’s ground of appeal focuses on the first sentence of para. 379. He argues that the trial judge rejected his plan of care for the child, relying on the sole fact that he “has had only supervised access with the child in a therapeutic setting for one hour every week or every two weeks”. The father argues that this was a palpable and overriding error because the trial judge ignored the evidence about the father’s access to the child from the date of separation forward. I reject this argument.
16The father is focusing on a single sentence to the exclusion of the extensive evidence that the trial judge reviewed and her findings of fact. The totality of the reasons must be considered. The paragraph as a whole shows that the trial judge was summarizing the evidence that led the judge to find that placing the child in the father’s care would not be in the best interests of the child. It would be a “set-up for failure”.
17The trial judge reviewed the history of the child’s care with the Society dating back to June 2008, when it first began. The trial judge heard extensive evidence from the parents, the Society’s care workers involved with the child, psychological and therapeutic evidence from Dr. Fitzgerald who conducted a psychological assessment and from Abraham Nehmad, a child and family therapist, who had worked with the child and parents. The father’s current wife also testified as did two members from his Islamic community.
18The trial judge correctly noted that because the child had been in care beyond the time limits in the CFSA, there were only two options available for the child: to be made a Crown ward or placed in the care of the father. The mother was not seeking return of the child because she was unable to care for him and meet his needs.
19The trial judge concluded that the “most viable plan being advanced for the child’s care is that of the [s]ociety”. It was the “least disruptive plan consistent with the best interests of the child and adequate to protect him.” As a result, the trial judge ordered that the “child shall be made a ward of the Crown”.
20In support of her decision, the trial judge made several key findings of fact that are summarized below.
21During his life, the child had endured multiple disruptions and turmoil in his care. The child’s loss, abandonment and rejection lead to his anger and aggression. The child had demonstrated his anger towards his family and younger step-siblings. He was unable to regulate this behaviour. He threatened to harm himself and used physical force against his mother.
22The family participated in the Society’s Therapeutic Access program. During this time, the father demonstrated difficulty responding appropriately to the child’s needs. When the child needed help to calm down, the father became frustrated or angry or needed limits to be set. The father’s inability to deal with the child, triggered the child to exhibit further challenging behaviour. When this happened, the father could not control his own emotions and, as a result, was not emotionally available to comfort and reassure the child.
23The father did not understand the reason for the child’s anger and aggression. The trial judge found that the child had to be closely supervised around other children. The father and his new wife have younger children. They do not appreciate the risk that the child presents to his younger siblings and the steps that they as parents would need to take to ensure that everyone in the household is safe.
24The father repeatedly involved the child in the conflict between himself and the mother and discussed the court proceeding with the child. The father subjected the child to incessant questioning about the circumstances in the mother’s home. When questioning the child, he prompted him to disclose maltreatment from the mother, when none had occurred. The father prodded the child to make false reports of ill treatment at the hands of other family members.
25The father would not acknowledge even the possibility that he had personal and parenting issues to resolve. He simply blamed others. The trial judge found that the father’s lack of insight into the child’s difficulties was the “most significant barrier to developing the ability to meet the emotional needs of the child in the future”. As the trial judge stated, “he cannot address problems that he fails to acknowledge or of which he is unaware”. Despite the guidance and education that the Society provided to the father through the Society’s Therapeutic Access program, the father made little progress over many years.
26In June 2015, the child refused to continue seeing the father at counselling unless the mother attended with him. The child did not want to live with his father.
27In summary, the trial judge found that the father’s plan of care was not viable based on a careful review of the totality of the evidence.
28On consent, the Society filed fresh evidence to update the court on the child’s care. The father says that this fresh evidence supports his position that he should care for the child because there have been problems with the child’s care.
29The fresh evidence does not assist the father. Since the trial, the Society’s child protection worker who is assigned to the child has continued to provide support for the child and his foster home. In June 2016, the child’s foster parents decided that they could not commit to the child long term and meet his emotional needs. The child was moved to a new foster family where he continues to live today. This placement has been a success. The child has experienced many positive successes in his new home and at school.
Ground of Appeal #2
30This ground of appeal deals with the access orders that the trial judge issued.
31After making the child a ward of the Crown, the trial judge turned to consider the parents’ request for access to the child. The trial judge correctly applied the two part test in s. 59(2.1) of the CFSA and noted that the burden rests on the parent seeking access to satisfy the test.
32This ground of appeal deals with the trial judge’s decision to reject the father’s request for access to the child. The judge ordered that the father shall not hold the right of access to the child.
33The child was granted access to his father. The trial judge made the child the holder of this access right. The access is in the discretion of the Society, taking into account the wishes of the child and any treatment needs he may have, with the duration, frequency and supervision of the access to be in the discretion of the Society.
34The father argues that the trial judge made a palpable and overriding error because this access order leaves the choice with the child. He says that this is not in the child’s best interests. I reject this argument. The trial judge carefully considered her decision to make the child the holder of the access right and gave clear reasons for doing so.
35The access order does not place a burden on the child, but rather confers a right on the child as a holder of access if adoptive parents are found for the child. Further, the order states that the access will be in the discretion of the Society taking into account the wishes of the child and any treatment needs he may have, with the duration, frequency and supervision of the access to be in the discretion of the Society.
36If the Society intends to place the child with adoptive parents, it is the child and not the father who has the right to seek ongoing openness, post-adoption.
37This decision was fully supported by the facts. The trial judge found that there was overwhelming evidence that the father was unable to satisfy the court that his access, if granted, would not impair the child’s future opportunities for adoption. The trial judge found that the father had engaged in behaviour that undermined the parenting and authority of every caregiver the child has had in the past, including the mother and each one of the foster parents. The father had not engendered a supportive positive relationship with any of the child’s past caregivers. He has no insight into how he undermined and destabilized the child’s various placements. The father accepted no responsibility for his conduct and there is little prospect that his behaviour will change. If the father was entitled to access, the trial judge found that “this would dampen the prospects of locating an adoptive or long-term placement for the child”.
38The trial judge decided that the child should be the holder of the access. The child will have the opportunity to maintain contact with his father at a level that is comfortable to him. As the holder of the right, visitation will not be imposed on him if he is unwilling. If he wishes contact with his father, then the order provides a framework to deal with his request.
39The trial judge considered whether her order would impair the child’s opportunity for adoption. She explained that given the child’s age, he has to consent to an adoption. Potential adoptive parents in this case would be mindful of the need to be understanding and respectful of the child’s views on contact with the father, for any adoption to succeed.
Ground of Appeal # 3
40The father argues that the trial judge erred because she did not give consideration and/or weight to all relevant evidence. There is no specific evidence that he refers to for this ground of appeal. I reject this ground of appeal.
41This is simply a catch all ground of appeal that has no specificity. As already explained, the trial judge’s reasons include a detailed review and consideration of the evidence with clear findings of fact and reasons for why the orders were made.
conclusion
42The father’s appeal is dismissed. There shall be no order as to costs.
C. Horkins J.
Date: January 31, 2017