CITATION: N.V.C v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796

COURT FILE NO.: FS-16-20693

DATE: 20170201

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Child and Family Services Act, R.S.O. 1990, c. C11 as amended

AND IN THE MATTER of the child

A.D.V.C.

(born […], 2011)

BETWEEN:

N.V.C.

Appellant

– and –

CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO

Respondent

Jessica Gagne, for the Appellant

Karen Ksienski, for the Respondent

HEARD: January 23, 2017

J. WILSON J.

OVERVIEW

[1] This appeal is from the final order of Justice Melanie Sager dated February 1, 2016, concluding the child A.D.V.C. (A., or the Child) to be a child in need of protection pursuant to sections 37(2)(b)(i) and (g) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the CFSA). Justice Sager ordered that the Child be made a Crown ward of the Catholic Children’s Aid Society of Toronto (CAS, or the Society) without access for the purpose of adoption.

[2] The Appellant, N.V. C. (the Mother), raises several grounds of appeal, including that:

• the trial judge erred in admitting evidence relevant only to disposition before making a finding that the Child was in need of protection, contrary to the mandatory wording in section 50(2) of the CFSA, and contrary to the Appellant’s request for a bifurcated hearing;

• the evidence relied upon by the trial judge does not support a finding that the Child is at risk of physical harm within the meaning of section 37(2)(b)(i) of the CFSA at the time of the hearing;

• the trial judge erred in making a finding that the child is at risk of emotional harm within the meaning of section 37(2)(g) of the CFSA based upon the evidence before her, and without expert evidence to support such a conclusion;

• no other section of the CFSA applies, and

• the trial judge made palpable and overriding errors in her assessment of the evidence with respect to risk of harm, particularly by failing to address much of the evidence that supported the position of the Mother and by failing to address in a fulsome manner the evidence as to the best interests of the Child at the disposition phase.

Background Facts

[3] A. was born on […], 2011. The Appellant is a single mother who also has a 17 year old daughter, S., by another father. S. is in community college and is close to her half-brother.

[4] After the Society’s intervention, A. was diagnosed with Down Syndrome. It is acknowledged that he is high-functioning and does not have all the features of the condition. A key issue is whether Mother can meet the needs of the Child.

[5] The Mother is of Cuban origin and came to Canada when she was 18. She was 42 years old at the time of the trial and is a permanent resident of Canada. After coming to Canada, the Appellant completed grades 10 to 12. Her work history includes doing factory work in various settings for placement agencies. At times, she has also been on public assistance. At the time of the apprehension, the Mother was not working. She was taking A. to a variety of community-based programs for children to encourage his independence and development.

[6] On September 11, 2013, A. was apprehended when the Mother was arrested for public intoxication while shopping with him at Walmart. The Mother was detained but not charged and kept in jail overnight. The police called the Society because the mother could not give the name of another person to care for the child. There has been no other incident involving alcohol excesses. The Society acknowledged at trial, and in this appeal, that the Mother’s alcohol consumption was not an issue. Other than this isolated incident, when the Mother met up with friends on this particular day, there is no allegation that the Mother had a problem with either drugs or alcohol.

[7] The Mother has significant issues with pride and stubbornness and has difficulty with authority. These issues are outlined in detail in the reasons of the trial judge, including her initial contact with the police on September 11, 2013. She refused to cooperate with the police and the situation escalated, which resulted in her detention until 3:30 am. From the beginning, the mother and the Society had a conflictual relationship. The trial judge summarizes, at para. 154, that the Society gave evidence that it made many “attempts to engage the mother in order to have the child returned to her care but their attempts were met with anger and the refusal to communicate let alone cooperate.”

[8] The trial judge blamed the Mother for the conflict and did not assess any role that the Society workers may have played in the poor relationship. In oral submissions, counsel for the Society conceded that the situation was not completely one-sided as the Society had made mistakes in its conduct on this file.

[9] The Mother also had issues with the Child’s daycare and, while under supervision, changed his daycare without the consent of the Society. In the first daycare, the Mother alleged that the Child was frequently getting sick, in her view because of water play and the daycare leaving the Child in wet clothes. When issues arose, the supervisor frequently communicated with the Society rather than the Mother.

[10] The Child’s pediatrician had recommended that the Child be tested for Down Syndrome and the Mother did not consent to the genetic testing until his apprehension. The Mother took the Child to regular visits to the pediatrician from birth and followed up with recommended treatment. She terminated the relationship with that pediatrician, before she had made clear arrangements for a new doctor, when he began communicating with the Society.

[11] The major focus of this trial was the Mother’s difficulty working cooperatively with those in authority. In particular, the focus was whether the Mother was capable of looking after A.’s special needs as a Down Syndrome child in light of her inability to engage with others.

[12] In the reasons, one significant criticism of the Mother was her withdrawal, or failure to pursue access visits, when the Child was in foster care for periods of time.

[13] The case is unusual because, as the Society’s counsel confirmed, “[t]he Society takes the position that the relationship with A. was [when] home with his mother was positive”.

[14] The reasons confirm that there was undisputed evidence that the Mother was, in many ways, a very good mother. Her home was clean and child-focused. She was closely bonded to A., participating in many appropriate activities to enhance his development. The reasons confirm, at para. 83, that:

There is consensus among the society workers that for the most part, the mother's interaction with the child is appropriate. The access is positively described in the following ways:

a) The mother loves her son and is affectionate with him;

b) The mother is mostly attentive to her son's needs;

c) The mother promotes the child's culture and brings Spanish books and toys;

d) The mother has checked the snacks the child brings to visits and shows concerns about the child's diet;

e) The mother is very encouraging of the child's development, teaching him his numbers, letters and colours;

f) The mother encourages the child to be independent;

g) The mother teaches the child proper manners;

h) The mother brings age appropriate toys and activities to the visits;

i) The mother works hard to teach the child how to use a spoon and plate and sit in a regular chair as opposed to a highchair;

j) The mother implements routine and structure during visits;

k) The mother correctly noted that the child had a rash around his mouth, was wearing pull ups that were too small for him and seemed overly tired at some visits;

l) The mother showed concern over whether someone was reading to her son in foster care; and,

m) The child's hygiene is not an issue when in the mother's care nor is the appropriateness of his clothing.

[15] On March 17, 2014, after nine months in the care of the Mother, the CAS re-apprehended the Child, this time at the daycare center with police presence. The court issued the order because the Society alleged that the Mother refused to sign a consent to allow it to obtain information from the new daycare center and refused ongoing access to her home. However, the evidence confirms that the Mother had signed a consent at the second daycare to share information with the Society, and that she advised her worker that she could see the Child at daycare, but not in her home.

[16] On the first day of the hearing, counsel for the Society confirmed that the Mother was not represented at the re-apprehension and the case went “essentially from apprehension to assignment court”.

[17] The Mother argues that there are significant deficiencies in the trial judge’s reasons. The trial judge did not consider the Mother’s counsel’s submissions that the Society played a role in the conflictual relationship. She did not consider the validity of the concerns raised by the Mother about the Child’s regression while initially in foster care. She did not consider the reliability of the evidence about the problems in the first daycare setting.

[18] For the reasons that I will fully outline, I accept the submissions of the Mother. In this appeal, she submits that the reasons are a recitation of the Society’s evidence without analysis. In her reasons, the trial judge did not consider the evidence called by the Mother, including the testimony of her 17 year old daughter who was closely bonded to her brother and who was a successful young woman. She did not consider the evidence from the Child’s pediatrician who

was called as a Society witness. In assessing whether the Child was at present risk of harm at the time of the hearing, she did not consider the evidence of the daycare supervisor at the new daycare center where the Child was attending at the time of apprehension.

[19] The trial judge concluded that the Mother consistently placed her own self-interest in proving that she was right above the interests of her Child.

[20] The trial judge found that the Child was in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(g) of the CFSA. She concluded that the appropriate disposition in the best interests of the Child was to make him a Crown ward with no access to the Mother.

The Standard of Review on this Appeal

[21] The Supreme Court set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 that an appellate court must apply the following standards of review to the issues before it:

• questions of law are reviewed on a correctness standard;

• findings of fact, and inferences of fact, are reviewed on the palpable and overriding error standard;

• questions of mixed law and fact are usually reviewed on the palpable and overriding error standard, but may be reviewed on the correctness standard if there is an extricable error in principle regarding the characterization of a legal standard or its application.

Issue 1: The failure to comply with section 50(2) of the CFSA

[22] Section 50(2) of the CFSA provides:

In a hearing under subsection 47 (1), evidence relating only to the disposition of the matter shall not be admitted before the court has determined that the child is in need of protection.

[23] The Child was finally apprehended on March 17, 2015 and the trial in this matter proceeded by way of speedy trial in November 2015.

[24] At a trial management conference immediately before the trial was to begin, counsel for the Mother brought a motion objecting to the admission of certain affidavit material filed by the Society and any evidence relevant only to disposition because it offended section 50(2). Often, parties consent to a blended, rather than bifurcated, trial. The Mother’s counsel did not consent to a blended hearing and sought a bifurcated hearing, as contemplated and required by the CFSA. Counsel for the Society objected to the Mother’s motion and argued that rectifying the affidavits already prepared and filed would require an adjournment and the trial was set and ready to go. The Appellant’s request was denied and the matter proceeded as a blended hearing.

[25] The wording of section 50(2) is mandatory, not permissive. It is well established that “shall” is mandatory language: see e.g. Interpretation Act, R.S.O. 1990, c. I.11, s. 29(2).

[26] If a trial judge admits evidence relating only to disposition before determining if the child is in need of protection, this can constitute reversible error, depending on the effect of the admission of the evidence on the trial process: Children's Aid Society of Waterloo (Regional Municipality) v. D. (M.J.) (2002), [2002] O.J. No. 5877, at para. 53 (Ont. S.C.) [D. (M.J.)]. In D. (M.J.), Hambly J. found that the trial judge fell into reversible error by improperly admitting evidence relating only to disposition and devoting a significant portion of his reasons for judgment to the best interests of the child and preferred plan of care, with a cursory review of the preliminary question of whether the child was in need of protection: D. (M.J.), at paras. 42-53.

[27] Justice James in Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) (1995), 9 O.F.L.R. 165 (Ont. C.J.) considered the meaning of section 50 and interpreted its import differently. He wrote, at paras. 38 to 40:

One of the summary conviction features of the Child and Family Services Act that has defied any attempt at becoming more attuned to its civil nature is the bifurcated nature of a child protection hearing. Subsections 50(2) and 54(1) make sense only in the context of a proceeding in which the court holds a hearing first to decide whether a child is in need of protection and if so, a further hearing to decide what is to be done with respect to the child. And it is subsection 50(2) with it insistence upon a bifurcation that I must somehow reconcile with the single body of evidence offered in the agreed statement of facts if I am to issue summary judgment in this case.

The most obvious solution lies the wording of subsection 50(2). It prohibits the admission of "evidence relating only to the disposition of the matter" prior to a finding of protection. In this case, fortunately, the agreed statement of facts relating to the children's need for protection is equally relevant to the disposition. It is not a document that relates exclusively to the disposition of the case.

If necessary, however, I would have found subsection 50(2) to be a practice requirement whose violation would at best result in a procedural irregularity and not in a substantive nullity.

[28] I note that the comments of Justice James are obiter because the impugned evidence in that case was admissible because it was relevant to both issues: whether the child was in need of protection, and to disposition.

[29] Evidence that is relevant to both questions of whether the child is in need of protection, and disposition, is admissible at the first stage of the bifurcated proceeding. Only evidence exclusively relevant to disposition is not admissible at the first stage.

[30] I conclude from reviewing all of the appeal record and the affidavits and from a review of the transcripts that the only evidence that was clearly not admissible at the preliminary stage was the evidence about the Child’s potential adoptability in the affidavit of Kate Blick, the adoption worker for the Society: at paras. 204-206 of the reasons.

[31] It would have been a simple step to simply remove the offending affidavit about adoptability and evidence from the record before proceeding to trial, without needing an adjournment of the trial. Counsel for the Society acknowledged in argument that its position on this issue was a tactical error. She argues, however, that the error is not fatal because the Appellant has not proved prejudice as a result of proceeding with the blended hearing.

[32] The question of adoptability was front and center of the Society’s submissions in its opening statement and, on the first day of trial, the trial judge interjected and referred to the Society’s position that the Child should be adopted without access as the Mother would not cooperate with the adoptive parents.[^1]

[33] The Mother’s evidence on disposition was that she only wanted A. returned to her care without a supervision order. She confirmed in the limited evidence on disposition that she was not seeking access if he was made a Crown ward.

[34] Is the violation of section 50(2) a procedural irregularity or a reversible error rendering the decision rendered a nullity?

[35] The meaning of section 50(2) of the CFSA must be considered globally in light of the purpose of the legislation to protect children while supporting the biological family unit and minimizing state intervention. The Supreme Court considered the approach to interpreting child welfare legislation in Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165. The Supreme Court considered how status review hearings are to be conducted, but also commented on general principles of the CFSA, including emphasizing that the predominant purpose is the best interests of the child. L'Heureux-Dubé J. commented, at para. 30:

As a starting point for this analysis, one must look at the Act as a global legislative scheme whose purpose and rationale should not be overshadowed by an unduly restrictive and strict interpretation of the sections of the Act, which would be at cross purposes with the whole philosophy of the Act.

And, in the conclusion, she states, at para. 48:

The law that courts must apply in the present case is the Ontario Child and Family Services Act, which, properly interpreted, mandates a careful balancing of its paramount objective of the best interests of the child with the value of maintaining the family unit and minimizing State intervention.

[Emphasis added.]

[36] When applying section 50(2), the ultimate concern should be the effect of the admission of the evidence on the fairness of the trial process, particularly whether the refusal to bifurcate the proceeding may have affected the outcome.

[37] I find the failure to allow the Appellant’s motion to be a serious one, not merely procedural, but not necessarily fatal to the proceedings.

[38] Had the trial proceeded in two steps, there would have been a separate focus on disposition after the initial finding, if the Child was found to be in need of protection. If the trial judge made a protection finding in the first phase of the bifurcated hearing, the Mother, although categorical in her view that she would not cooperate with supervision if the child remained in her care, may well have modified her position at the disposition phase when the reality of the situation set in.

[39] Having read all of the transcripts and considered all of the evidence, it is not clear to me that, if a bifurcated hearing had taken place and a protection finding was made, the Mother would still have refused supervision if the only option remaining was that the Child be returned to her care with some Society supervision. I note that in the Mother’s application for access pending this appeal (which was denied) she confirmed the error of her ways and that she wanted access and was prepared to cooperate with the Society.

[40] The Mother’s goal at trial was to have the Society no longer intruding in the life of her family. She lost. In this power struggle between the Society and the Mother, which was the primary focus in this trial, it appears that there was virtually no attempt during the critically important disposition phase to find a solution focusing on the best interests of the Child maintaining contact with his family. Once the protection finding was made in this case, given the Mother’s position, it was a fait accompli that there would be an order made for Crown wardship for possible adoption without access.

[41] The evidence as to adoptability was relatively weak—that adoption may be possible. There was no approved family waiting in the wings, as is often the case. The foster mother could not adopt as she was too old and could keep the child only until the Child was five. There was virtually no evidence called about how A. was doing in the second foster home at the time of the hearing.

[42] I conclude that the failure to bifurcate the hearing in this case is serious as there was significant prejudice to the Mother’s position. And, more importantly, it appears to have skewed the focus of the trial to issues of conflict between the Mother and the Society, rather than to a disposition with careful analysis as to what was in the best interests of the Child.

[43] If there were no other issues of concern in this appeal, in the facts and circumstances of this case, I would conclude that the failure to abide by the mandatory requirements of section 50(2) of the CFSA would have justified a new hearing. This is because there was little or no evidence called in the disposition phase as to the best interests of the Child and the effect of separating this Child from his biological family.

Issue 2: Did the trial judge err in finding that the Child was at risk of physical harm within the meaning of section 37(2)(b) of the CFSA?

[44] Section 37(2)(b) of the CFSA provides that “[a] child is in need of protection where,”

(b) there is a risk that the child is likely to suffer physical harm inflicted by the

person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the

child, or

(ii) pattern of neglect in caring for, providing for, supervising or

protecting the child;

[45] The trial judge made a finding that the Child was in need of protection pursuant to 37(2)(b)(i).

[46] In Children's Aid Society of Peel (Region) v. R.(K.), 1996 CarswellOnt 5255, Karswick J. stated, at para. 48, that:

Before the court makes any finding that a child is in need of protection — and especially where such a finding will result in the child's removal from the family unit or in an order for a Crown wardship — there must be a clear and persuasive basis for such a determination. The decision is to be made by the judge on the balance of probabilities, but I would not characterize this balancing as simply "ordinary" but rather as "careful, deliberate and demanding".

[Emphasis added.]

[47] The trial judge found, at paras. 184-186, that the Child was in need of protection on September 11, 2013 because “[t]he mother put the child at risk of physical harm by consuming a large amount of alcohol in a short period of time while the child was in her care.” She also listed a number of other factors, at para. 188, to support her conclusion.

[48] The Appellant raise two issues in addressing these findings.

[49] First, the Appellant argues that the evidence at trial does not support a finding that the Child is in need of protection having regard to section 37(2)(b)(i) at the time that the matter was heard—that is November/December 2016. The Appellant argues that a single incident of intoxication in the presence of the Child in September 2013 cannot underpin a finding that he is a child in need of protection over three years later at the date of the hearing.

[50] Counsel for the Society argues that the single historic incident of inebriation is sufficient evidence to meet its burden of proof for a protection finding, and the question then becomes what the appropriate disposition would be in accordance with section 57.

[51] Second, the Mother argues that the other factors relied upon by the trial judge in her reasons also do not fall within the meaning of risk of physical harm as contemplated by the section and the case law.

[52] Counsel for the Society argues that the additional facts considered are not necessary because the single incident of inebriation three years prior to the hearing is sufficient to make a finding at the hearing pursuant to section 37(2)(b)(i).

[53] I will consider each of these two issues in turn.

Present v. Past Risk of Harm

[54] Counsel for the Society in this appeal argues that if the Child was in need of protection on September 11, 2013, the time of the original apprehension, then the Society has met its burden of proof. The Society argues that the other findings made by the trial judge, at para. 188, are unnecessary and ancillary. According to counsel, the Society does not bear the onus of proving that the Child is in need of protection at the time of the hearing.

[55] I disagree with the argument of the Society on this issue. If there is confusion in the case law that appears to support the Society’s position, then respectfully I conclude it is wrong.

[56] I conclude that for the Child to be found in need of protection due to risk of harm under section 37(2)(b), the Society bears the onus of proving the risk exists at the time of hearing—that is November/December 2016, not at the time of apprehension in September 2013.

[57] I conclude that the wording of the section, common sense, and the case law support the interpretation that the finding of risk of harm, and hence the child’s need for protection, must be determined at the time of the hearing.

[58] I begin with to the principle of the plain meaning rule. In R. v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 11, Lamer C.J.C. (as he then was) stated:

the first task of a court construing a statutory provision is to consider the meaning of its words in the context of the statute as a whole. If the meaning of the words when they are considered in this context is clear, there is no need for further interpretation. The basis for this general rule is that when such a plain meaning can be identified, this meaning can ordinarily be said to reflect the legislature's intention. […] Thus, the best way for the courts to complete the task of giving effect to legislative intention is usually to assume that the legislature means what it says, when this can be clearly ascertained.

[Emphasis added.]

[59] In reaching the conclusion that the Child must be at risk of harm at the time of the hearing, not at the time of apprehension, I look first to the words of the section in question. Subsection 37(2)(b), which is the section that the Society relies upon, confirms that a child will be found to be in need of protection if “there is a risk that the child is likely to suffer physical harm” [emphasis added]. The plain words mean present risk of future harm.

[60] There has been some confusion in the case law, as reflected in the submissions made to me by Counsel for the Society. There are some cases suggesting that the protection finding is based upon the situation that existed at the time of apprehension.[^2]

[61] In Children's Aid Society of Hamilton-Wentworth v. R. (K.) (2001), [2001] O.J. No. 5754 (Ont. S.C.) [R. (K.)], Czutrin J. considered the temporal application of several sections of the CFSA, including section 37(2). He did so in response to the respondent mother’s submission, outlined at para. 64, that “I not look to events post the initial application or apprehension in determining the case before me.”

[62] Justice Czutrin respectfully disagreed with any suggestion in the case law that the time of apprehension is the time to assess the evidence of risk rather than the time of trial. His reasons make clear that the court is ultimately concerned with whether the child is in need of protection at the time of the hearing.

[63] He offered the example, at para. 72, as to why an interpretation of risk at the time of apprehension makes no sense. He used the example of a child who was not in need of protection at the time of the initial apprehension but was at the time of hearing. He concludes that it would be counter to the scheme of the CFSA, and principles set out by the Supreme Court, to return the Child to the family because he was not at risk at the time of the apprehension, and then promptly re-apprehend the child for another hearing because he was at risk of harm at the time of the hearing.

[64] It is obvious that for the state to intervene, apprehend a child, and place her in foster care on a temporary basis, there must be a finding that the child is in need of protection at the time of the intervention. As well, in a hearing to finally determine the issue of present risk of future physical harm, it is equally obvious that a finding must be based upon all of the relevant evidence at the date of the hearing.

[65] There are cases in which trial judges consider whether a child was in need of protection both at the time of apprehension and at the time of trial. In the decision under appeal in Algonquins of Pikwakanagan v. Children's Aid Society of the County of Renfrew, 2014 ONCA 646, 325 O.A.C. 94, at paras. 50 and 52, the trial judge made a finding that the initial apprehension was justified and also “that the children continued to be in need of protection at the date of trial.” The Court of Appeal found that both findings were appropriate. See also: Children's Aid Society of Toronto v. D. (J.), [2001] O.J. No. 3295, at para. 15 (Ont. C.J.).

[66] The confusion in the case law appears to be with respect to what evidence is admissible to underpin a finding of risk of harm at the time of the hearing. For instance, Justice Quinn, in P. (D.), confirms that prior findings that older children are in need of protection may be admissible to consider whether the younger children are in need of protection. If the underlying problems of the parents have not been remedied in the interim, this is cogent evidence that the younger children are at present risk of harm.

[67] In assessing the question of risk at the time of the hearing, the trial judge may consider any relevant evidence to determine whether there is a present risk of harm, including evidence prior to the time of the apprehension, or afterwards up to the date of trial.

[68] This fluidity in being able to consider past evidence of risk of harm to determine whether the child in question is at present risk of harm at the hearing does not mean that the critical date for assessing the risk is the date of apprehension, as suggested by counsel for the Society.

[69] Justice Czutrin J., in R. (K.), confirmed at para. 73 that all evidence of risk can be considered at any point during the child’s life in determining whether there is a risk of harm at the date of the hearing.

[70] The wording “is in need”, or “is likely to suffer harm”, necessarily looks to the present to inform the future risk of harm, not the past. Past history, if it is not a current problem, cannot support the required onus of proof upon the Society at a trial. To conclude otherwise makes no sense and would render the first part of the bifurcated hearing meaningless.

[71] I conclude that section 37(2)(b) of the CFSA is clear that the Society’s onus is to prove on a balance of probabilities that a risk of harm is present at the time of the trial based upon relevant sufficient evidence. This evidence may date from both pre- and post-apprehension.

[72] On the facts of this case, I find that a single incident of the Mother’s inebriation in the presence of the Child—three years prior to the hearing, with a concession that alcohol is not an issue whatsoever at the time of the hearing—is not sufficient to discharge the Society’s burden of showing there is a present risk of physical harm without other evidence in support of this finding.

Are the supplementary facts as found by the trial judge able to underpin a finding of risk of physical harm within the meaning of 37(2)(b) of the CFSA?

[73] I turn then to the second challenge by the Appellant. Are the findings made by the trial judge capable of supporting a finding of risk of physical harm within the meaning of the section and the case law?

[74] At this phase of the analysis, I will accept the findings of the trial judge as supported by the evidence, although in the final analysis, as I will outline when I consider the reasons of the trial judge, a review discloses that many of the conclusions reached are not supported by the evidence.

[75] The trial judge lists factors post-apprehension, at para. 188, in support of the finding that the Child was at “further risk of harm pursuant to subsection 37(2)(b)(i) of the Act as a result of the following conduct”:

(a) Her resistance to having the child tested for Down's syndrome;

(b) Her failure to properly educate herself on what her son's diagnosis of Down's syndrome means in terms of his development, his ongoing health and any issues he may encounter, and what supports and services are available to him in the community;

(c) Her inappropriate expectations of the child due to her lack of understanding of Down's syndrome;

(d) Her failure to pursue services for her son which addresses his special needs;

(e) Her refusal to cooperate with and attend at Surrey Place for her son to receive services;

(f) Her failure to attend most of the plans of care meetings arranged by the society at their offices;

(g) Her failure to focus on her son's needs when meeting with society workers and/or service providers and using the time to air her grievances with the society, daycare, police, foster home etc.;

(h) Her failure to attend sessions and engage in meaningful contact with the service providers working with her son arranged through the society or the child's daycare;

(i) Her failure to take the child for blood tests to determine his thyroid level as requested by Dr. Porepa after the child was returned to the mother's care in July 2015; and,

(j) Her decision to withdraw the child from the care of Dr. Porepa, the child's doctor since birth, in order to find a doctor closer to her home and that she did so before having a new doctor in place for the child.

[76] There is no definitive appellate test for the proper meaning of s. 37(2)(b).

[77] Case law indicates that the risk of harm “must be real and not just speculative”: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273, at para. 8 (Ont. S.C.); see also Children's Aid Society of Rainy River (District) v. B. (C.), 2006 ONCJ 458, at para. 19. There is no exhaustive list of what factors, either individually or cumulatively, are sufficient to constitute “a risk that the child is likely to suffer physical harm” within the meaning of section 37(2)(b)(i) and (ii). Facts supporting a finding under this section identified in the case law include:

• Actual physical abuse: Children's Aid Society of Simcoe (County) v. S., [2001] O.J. No. 1380, at para. 178.

• Domestic violence: Children's Aid Society of Toronto v. B. (B.), 2012 ONCJ 646, at para. 133.

• Instability of housing and caregiving arrangements: Catholic Children's Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850, at para. 380.

• Verbal abuse, aggression, and inappropriate situations that children are exposed to: Catholic Children's Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850, at para. 380.

• Alcohol abuse: Children's Aid Society of Ottawa v. L. (R.), [2004] O.J. No. 3112, at para. 47. (Ont. S.C.).

• Abuse of other drugs, such as cocaine: Children's Aid Society of Simcoe (County) v. D. (K.), [2008] O.J. No. 763 (Ont. S.C.).

• Limited capacity of the parents if there is an inability to sufficiently acquire or improve parenting skills: Children's Aid Society of Hamilton v. O. (E.), [2009] O.J. No. 5534, at paras. 211-215.

• Inappropriate physical discipline can support a finding if it crosses the threshold of creating a risk of physical harm: Children's Aid Society of Toronto v. U. (E.), 2014 ONCJ 299, at para. 102.

[78] The evidence relied upon by the trial judge does not fit within the wording of the section, nor does it fit within any of the categories of behavior recognized by the case law to support a finding of risk of harm under this section.

[79] The section requires that there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child, or a pattern of neglect in caring for, providing for, supervising or protecting the child.

[80] The list of factors identified by the trial judge may be distilled to two sets of issues: the Mother’s failure to take steps to ensure the special needs of the Child were being met, and her inability to work cooperatively with the Society and, at times, with the daycare.

[81] These conclusions reached, if supported by the evidence, do not address whether the test of physical harm has been met. These facts are primarily relevant to disposition and the test of the best interests of the Child, rather than to whether the Child was at present risk of physical harm. This failure to squarely address the required statutory provisions and the disconnect between the findings made and the statutory test illustrates the danger in this case of a blended hearing.

[82] I adopt the comments of Spence J. in Catholic Children's Aid Society of Toronto v. R. (M.), [2003] O.J. No. 4385, at para. 13. He held that, to meet the test of risk of emotional harm pursuant to section 37(2)(g), the specified criteria in the legislation must be met. Conclusions of something less, or different, would not meet the Society’s burden of proof. I make the same observations about the requirement that evidence support a finding under section 37(2)(b).

[83] At the preliminary phase of determining whether there is a present risk of harm pursuant to section 37(2)(i) of the CFSA, the trial judge must conduct a careful review of the legislative provisions in light of the evidence.

[84] The evidence relied upon by the trial judge does not support a finding that A. is likely to suffer physical harm caused by or resulting from the Mother’s failure to adequately care for, provide for, supervise or protect the Child, or a pattern of neglect in caring for, providing for, supervising or protecting the Child.

[85] I conclude, taking a generous fulsome view of the intended meaning of the CSFA and the words of sections 37(2)(b)(i) and (ii), that the evidence relied upon by the trial judge—accepting it at face value without challenge—does not support a finding that the Child is at risk of physical harm within the meaning of this section. This is a palpable and overriding error of mixed fact and law.

Issue 3: Did the trial judge err in making a finding that the child is at risk of emotional harm pursuant to section 37(2)(g) without any expert evidence to support such a conclusion?

Do the findings made by the trial judge support the conclusion that the Child was at risk of emotional harm?

[86] Section 37(2)(g) of the CFSA provides that “[a] child is in need of protection where,”

there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

[87] Subclause (f) of section 37(2) provides:

the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

[88] In Catholic Children's Aid Society of Toronto v. R. (M.), [2003] O.J. No. 4385, Spence J. held, at para. 13:

Accordingly, in the absence of authority to the contrary, I conclude that the types of emotional harm set out in clause 37(2)(f) are exhaustive in determining whether a child is in need of protection. And, because of this, I also conclude that feelings and emotions of "distrust, fear, guilt and anger," simpliciter are not subsumed by clause 37(2)(f) and would not, therefore, lead to a finding that a child is in need of protection.

[89] I agree with the conclusions above that the Society bears the onus of proof of showing risk of harm within the meaning of the statutory provisions.

Failure to Provide Expert Evidence

[90] There was no expert report confirming risk of emotional harm. I will consider this issue first.

[91] Although there is no absolute requirement for expert evidence under section 37(2)(g), the case law indicates that such evidence will, as a practical matter, usually be required to support a finding under that section.

[92] In Catholic Children's Aid Society of Hamilton-Wentworth v. L. (C.) (2002), [2002] O.J. No. 4255, at para. 4, Steinberg J. held:

In order to succeed under section 37(2)(g), I am of the view that, except in the rarest of cases, a society must produce expert evidence to demonstrate that the conduct of the parent or care given is likely to produce the symptoms in the child referred to in clause (f). A court cannot, in my view, generally come to such a conclusion on its own without some professional assistance.

[Emphasis added.]

[93] In S. (D.), Re (2001), 14 R.F.L. (5th) 414 (Ont. S.C.), de Sousa J. was also of the view that expert evidence will be required to establish the factors listed in section 37(2)(f) (which are incorporated by reference into section 37(2)(g)). In particular, de Sousa J. commented, at para. 66:

It seems logical to me that, given the nature of the listed conditions and behaviours found in s. 37(2)(f) demonstrating emotional harm, some expert evidence from a qualified mental health professional or child development specialist might be required to prove the conditions or behaviours and their serious quality, in many instances. For example, depression is a clinical or psychiatric diagnosis and therefore requires evidence of an expert. Developmental delay, to a point, may be another example. I say to a point because a child who is five years old and does not walk without any physical explanation may be declared developmentally delayed without the testimony of an expert. A competent and appropriate caregiver may also be a very reliable witness to the serious aggressive or self-destructive behaviour of a child without being a qualified mental health expert. There is no question that in a number of cases where the courts have found emotional harm of the kind described in the section, they have relied on expert evidence.

[94] In the more recent Superior Court decision of Children's Aid Society of Ottawa v. K. (S.), 2015 ONSC 4623, Parfett J. stated, at para. 104, that: “Generally speaking, expert evidence is required to assist the court in concluding that the parent's behaviour is likely to cause emotional harm.”

[95] The Ontario Court of Justice decisions accept that the position is that expert evidence is usually required to support a finding under s. 37(2)(g): see e.g. Children's Aid Society of Thunder Bay (District) v. K. (K.), 2006 ONCJ 158, at para. 53; Chatham-Kent Children's Services v. P. (C.), 2014 ONCJ 395, at para. 22; Catholic Children's Aid Society of Toronto v. R. (M.), 2014 ONCJ 761, at para. 134; Family & Children's Services of Renfrew (County) & Pembroke (City) v. P. (S.), 2005 ONCJ 152, at paras. 19-20; Catholic Children's Aid Society of Toronto v. R. (M.), 2014 ONCJ 761, at para. 134; Children's Aid Society of Owen Sound & Grey (County) v. T. (J.) (2003), [2003] O.J. No. 5904, at para. 166.

[96] I asked counsel for the Society whether there was any case where a finding was made of emotional harm without the benefit of an expert report. She referred me to the decision of Catholic Children’s Aid Society v. CC, 2011 ONCJ 598 as an example of findings being made without the benefit of an expert report. That case concerned two of the mother’s children. An expert psychological assessment report was prepared with respect to the eldest child who was exhibiting a variety of emotional problems, in part as a result of contact with the mother. There was a fear that the youngest child would suffer the same symptoms if the situation continued. Clearly, in that case there was the benefit of expert evidence.

[97] In this case, the only evidence that could have potentially qualified as expert evidence came from the Child’s pediatrician prior to the first apprehension and the daycare supervisor at the new day care center where the Child was reapprehended, both of whom had had the opportunity to observe the Mother’s relationship with A.

[98] When questioned about the various criteria for emotional harm, the pediatrician testified that the Mother was not causing any such harm or that her behavior created a risk of harm and, to the contrary, she was “very attentive and very concerned about him, and that came through.”[^3] This cogent evidence was not considered by the trial judge in her reasons.

[99] The daycare supervisor gave evidence about the positive relationship between Mother and the Child, and gave no evidence of emotional harm.

[100] I am of the view that the Society’s failure to provide any expert evidence based on observations with the Child and Mother in a fair, neutral setting to give independent insight into the relationship is a serious problem in meeting its evidentiary burden for establishing proof of emotional harm. This failure is more serious in this case because the Child has Down Syndrome and cannot speak for himself. Had there been some independent observations of the Mother and the Child, presumably the expert would have canvassed the present emotional status of the Child, as well as any potential damage that may be suffered by the Child being removed from his family.

Do the conclusions reached by the trial judge support a finding of risk of emotional harm under section 37(2)(g)?

[101] The trial judge concluded that the Child was at risk of likely suffering emotional harm in her reasons, at paras. 190 to 194:

The mother's behaviour and poor judgment have put the child's emotional wellbeing and development at risk of harm. Her unwillingness to work cooperatively with others involved in the child's life throughout the society's involvement demonstrates a dangerous pattern of behaviour that has and is likely to continue to have a detrimental impact on the child resulting in a real risk of harm. Not only is the mother unable to work cooperatively with others, she has demonstrated that when she feels she is not being listened to, she becomes belligerent and abusive.

The mother has also failed to address the child's special needs as a result of either her refusal to accept the child has Down's syndrome or her lack of understanding of the diagnosis.

The mother's actions since September 2013 and her evidence at trial demonstrate an overwhelming need to prove she is right and others are wrong. Her need to be right has seriously impaired her judgment and had significant consequences on her son demonstrating that she is unable to put the needs of her child before her own.

The mother's behaviour and poor judgment has put the child at risk of harm pursuant to subsection 37(2)(g). The following are examples of the mother's inability to meet her son's needs since the society became involved with the mother and child:

a) The behaviours set out in paragraph 188 (a) to (J) inclusive;

b) Her refusal to cooperate with the police and provide the information requested of her. Instead of cooperating with police and de-escalating the situation, the mother was belligerent and uncooperative. The child being brought into the society's care initially was due entirely to the mother's behaviour with the police;

c) Her refusal to develop a working relationship for any measureable period of time with a single society worker. The mother has remained defiant in her hostile approach towards interaction with all society workers for over two years. In March of 2015 the mother even refused to cooperate with the society in the face of a motion to have the child brought back into care. Her hostility was visible during the trial while she sat at the counsel table and her anger directed at the society was palpable throughout most of her cross examination. The mother has consistently demonstrated that it is more important for her to prove her

innocence or that she is right and the society is wrong then it was to cooperate with the society to ensure her son's return to her care as soon as possible;

d) Her decision to leave her son in care and vacation in Cuba with her daughter shortly after the first apprehension;

e) Her decision not to see her son for two months after he was first

apprehended;

f) Her refusal to visit with her son between December 11, 2013 and February 26, 2014 and between April 21, 2015 and July 24, 2015;

g) Her decision to end visits with her son after her November 27, 2015 visit at the society's office;

h) Her refusal to comply with the court order requiring her to cooperate with the society and not to change her son's daycare without the society's consent after the child was returned to her care in July 2014;

i) Her refusal to abide by the daycare's policies resulting in unnecessary and ongoing conflict with the daycare staff which eventually necessitated police involvement;

j) Her insistence on being argumentative and inappropriate with the society's access supervisors and using the time to complain about the society and the care the child was receiving in his foster home; and,

k) Her insistence that as the child's mother she knows what is best for him and does not need advice from anyone on how to care for him.

[102] Again, in the reasons of the trial judge, the primary focus was upon the conflictual relations that the Mother had with the Society and, to some degree, with the first daycare center. Again, there is again a disconnect between the findings in support of emotional harm and the required elements of the statutory test stipulated in sections 37(2)(g) and (f).

[103] There was no evidence that the Child had suffered or was likely to suffer from any of the heads of emotional harm set out in section 37(2)(f) and incorporated into section 37(2)(g) as a result of the Mother’s conduct.

[104] There was no evidence to support the conclusion that the Child was in need of protection as being likely to suffer the emotional harm of serious anxiety, depression, withdrawal, self-destructive or aggressive behavior or delayed development as a result of the actions, failure to act or pattern of neglect on the part of the Mother.

[105] The absence of an independent expert report in the circumstances of this case is very troubling. The evidence relied upon by the trial judge and the conclusions do not support a finding of emotional harm to the Child within the meaning of section 37(2)(g) of the CFSA. This is a palpable and overriding error of mixed fact and law.

Issue 5: Could the Society have arguably relied on any other sub-section in 37(2)?

[106] A court does have jurisdiction to make a finding that a child is in need of protection under a clause of section 37(2) that was not pleaded: see e.g. Children’s Aid Society v. R. S. and J.M., [2005] O.J. No. 570, at para. 23 (Ont. S.C.); Children’s Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754, at para. 37 (Ont. S.C.). The cases suggest that a court should only make a finding under a clause not pleaded if the parent is not caught by surprise, the evidence justifies the finding, the parent had prior disclosure of the evidence, and the parent had full opportunity to test this evidence.

[107] As I have concluded that the evidence at the hearing did not support a finding that the Child was in need of protection under either section relied upon by the trial judge, which would result in the immediate return of the Child to the Mother, I will review the evidence to see if it is arguable that any other section, although not argued, might apply. Two potential sections come to mind: 37(2)(h) and (i).

[108] Section 37(2)(h) deals with special needs children and section 37(2)(i) deals with abandonment.

[109] For reasons I will outline, I conclude that neither section raises an arguable issue of a risk of harm.

Special Needs: Section 37(2)(h) of the CFSA

[110] The Society did not allege in their protection application, or in the argument in this appeal, that the Child is a risk of harm pursuant to section 37(2)(h).

[111] The application was brought by the Society alleging risk of physical and emotional harm, without relying upon the section of the CFSA targeting treatment concerns for special needs children.

[112] Section 37(2)(h) provides that “[a] child is in need of protection where,”

the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition;

[Emphasis added.]

[113] The Appellant submits that this section was not relied upon at the hearing because the Society could not meet its burden of proof under this section.

[114] I agree.

[115] The Child suffers from a developmental condition: Down Syndrome. There was no evidence that the Mother refused, or was unavailable, or unable to consent to treatment to remedy or alleviate the condition.

[116] The only criticism of the Mother was her refusal to consent to the genetic testing of the Child prior to apprehension. The evidence confirms that she followed all of the pediatrician’s directions for treatment and that she expressed concerns to the Child’s doctor that A. was not developing as quickly as her daughter.

[117] Once she was aware of the diagnosis after the apprehension, she supported the Child’s participation in various forms of supportive therapy including speech therapy, occupational therapy, and training and assistance for the teacher in the daycare setting. In the new daycare center, arrangements had been made by the Mother and the daycare supervisor to ensure continuity of treatment in the new setting.

[118] I conclude that the evidence—including the Society affidavits and the evidence at the hearing, considered at its highest, and the findings of fact made and relied upon by the trial judge in support of her findings under sections 37(2)(b) or (g)—does not support a finding that the Child’s development would be impaired due to the Mother’s conduct pursuant to section 37(2)(h).

Abandonment: Section 37(2)(i) of the CFSA

[119] Section 37(2)(i) of the CFSA provides that a child is need of protection where:

the child has been abandoned, the child’s parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody

[Emphasis added.]

[120] The Society did not advance any arguments under the abandonment section of the CFSA at trial or in this appeal. However, much was made at the trial about the Mother not exercising access for certain periods when the Child was apprehended. Is it arguable that these periods of declining to exercise access while the Child was in foster care constitute abandonment within the meaning of section 37(2)(i) of the CFSA?

[121] Based upon a review of the case law, it is clear that the evidence in this case is not capable of supporting such a finding.

[122] The case law confirms that abandonment findings require evidence that the parent left the child unattended for some significant period of time and did not ensure that appropriate supervisory arrangements were in place.

[123] For example, in Children's Aid Society of Toronto v. M. (M.), 2016 ONCJ 374, the mother left her 13-year-old daughter to care for her six-year-old son for several days while she went on a trip to another city. She also left the six-year-old son unattended at a park without knowing his last name or address on at least two occasions.

[124] Another example of abandonment is found in S. (B.), Re, [1996] O.J. No. 4428 (Ont. C.J. Gen. Div.), which was dealt with under section 37(2)(b). The judge found that the mother abandoned the children when she left them with a babysitter and did not return. The babysitter had to contact the homeless father to attend to the children, and the babysitter had left when he arrived.

[125] During the Child’s first time period in care, the mother did not visit until two months after apprehension (on November 14, 2013). She also did not exercise access for over two months from December 11, 2013 to February 26, 2014. In the second apprehension period, the Mother visited four times between March 2015 and April 2015, then did not visit for three months between April 21, 2015 and July 24, 2015.

[126] The Mother gave evidence about significant difficulties in arranging access after the Child was initially apprehended. After bad court proceedings, there were gaps in her access. She was frustrated, angry and upset that her Child was in foster care. She testified at trial that she would not visit any more following a November 27, 2015 visit because she could not tolerate seeing her son suffer in foster care.

[127] The Mother’s failure to exercise access for periods of time while the Child was in foster care cannot support a finding under subsection 37(2)(i).

[128] I conclude that, considering the evidence as a whole and, in particular, considering the conclusions reached by the trial judge in her findings in relation to risk of harm under sections 37(2)(b) and (g), do not support a finding that the Child was abandoned within the meaning of the test outlined in section 37(2)(i) of the CFSA.

Conclusions that the Child Is Not at Risk of Harm

[129] In the first phase of a protection case, the trial judge has to conduct an analysis of whether the evidence supports a finding that a child is in need of protection at the time of a hearing within the meaning of the statutory provisions relied upon by the Society.

[130] In this case, the Society asserted that the Child was in need of protection due to risk of physical and emotional harm as defined by sections 37(2)(b)(i) and 37(2)(g).

[131] A single isolated incident of excessive alcohol consumption in the presence of the Child three years prior to the hearing, with no evidence whatsoever that the Mother had a problem with alcohol at any other time, and certainly not at the date of the hearing, cannot underpin a conclusion that the Child was in need of protection due to risk of physical harm under section 37(2)(b).

[132] The other evidence relied upon by the trial judge in her finding of risk of physical harm pursuant to section 37(2)(b) does not support a finding of risk of physical harm within the meaning of the statutory section, or any of the case law interpreting the section.

[133] The finding that the Child was in need of protection due to a risk of physical harm must therefore be set aside because the facts in support of the conclusion do not meet the requirements of the applicable statutory tests. This is a palpable and overriding error of mixed fact and law.

[134] Similarly, the finding that the Child was at risk of emotional harm pursuant to section 37(2) (g) must be set aside.

[135] There was no expert evidence supporting the conclusion. There was no evidence that any of the list of symptoms of emotional harm outlined in 37(2)(f) had been experienced by the Child as a result of the Mother’s conduct, or were likely to be experienced by the Child in the future. Further, there was no analysis of the emotional harm to the Child in removing him from his loving Mother and sister.

[136] Many of the factors relied upon by the trial judge to underpin her finding pursuant to sections 37(2)(b)(i) and (g) may have been appropriate factors to consider, if the Child was found to be in need of protection, when a suitable disposition order was being canvassed.

[137] Although not argued by the Society, I have considered whether the evidence and conclusions of the trial judge could arguably support a finding that the Child was in need of protection under any of the other statutory provisions.

[138] The Society chose not to bring the protection proceeding under 37(2)(h) of the CFSA, which is the section targeting special needs children and failure or inability to provide appropriate treatment. The Society did not proceed under this section, as the requirements of the statutory test could not be met.

[139] Similarly, the Society did not suggest or argue that the section 37(2)(i) of the CFSA dealing with abandonment would apply. I have reviewed the section, and the case law, and conclude that the evidence and the findings of the trial judge would not support a finding under that section.

[140] The result of my conclusions, accepting the findings of the trial judge for the purpose of this analysis, cannot support a finding that the Child is in need of protection under any of the sections of the CFSA.

Transition to Mother’s Care

[141] Section 69(1)(b) of the CFSA grants an appeal to the Superior Court of Justice from a court order made pursuant to the CFSA. That section does not set out the specified powers on appeal, other than broad powers in 69(4) to make a temporary order dealing with care and custody pending the appeal. Therefore, section 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 applies, which provides:

Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by

the court or tribunal appealed from;

(b) order a new trial;

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

[142] In light of the Child’s special needs, a plan must be in place, prior to the permanent return of the Child, to ensure that he is accepted in a school, has appropriate before and after school care, that he has a pediatrician, and that arrangements have been made for appropriate supports for his special needs such as speech and occupational therapy.

[143] At the time of the second apprehension, the Mother had a plan for the Child that responded to his needs and allowed her to work.

[144] The Mother had transferred the Child to St. Dorothy’s day care school. The evidence as I will outline supports the finding that the Mother’s plan to transfer the Child to St. Dorothy’s was sound and in the Child’s best interests.

[145] This school was the Child’s home school near where Mother lived. The Child began in the new on February 17, 2015, one month prior to his apprehension on March 17, 2015. He was doing well in the new daycare.

[146] The Mother and the supervisor had a good working relationship. They had sorted out the water play issue with minimum fuss, which was a source of conflict in the first daycare. A. had been accepted in kindergarten to begin in September 2015 at St. Dorothy’s, which was just next door to the daycare. Once in kindergarten, A. could access the before and after care in the familiar daycare setting at St. Dorothy’s.

[147] The Mother and the supervisor were arranging for or had arranged all the additional services of speech therapy, occupational therapy, and support for the child care staff when the Child was reapprehended. The Mother’s insistence that all supportive treatment be made available in one setting makes sense. Such an arrangement would minimize stress and fatigue for both the Mother and the Child and the arrangement would presumably continue when the Child was in kindergarten. It would allow the Mother to continue to work, which is a valid goal for her.

[148] It would appear to be an excellent plan if the Child can be re-admitted to St. Dorothy’s immediately.

[149] A source of difficulty with the first daycare center was problems reaching the Mother if the Child was sick. The Mother needs to have a backup plan if the Child is sick and cannot go to school. As well, there needs to be a cost-effective method for the school to be able to contact the Mother if necessary when she is at work that would not jeopardize her employment.

[150] As soon as appropriate supporting arrangements can be made for the Child, he should be returned to the Mother’s care without any further supervision by the Society. In the meantime, access should begin immediately, including weekend access with the Mother without supervision.

[151] I may be spoken to about the transition arrangements on Thursday, February 2, 2017 at 10:00 am.

Issue 6: Did the trial judge make palpable and overriding errors in her assessment of the evidence?

[152] As I have concluded that the evidence relied upon by the trial judge, and the conclusions reached, do not support a finding that the Child is in need of protection, I do not have to canvas the question of palpable and overriding error in the reasons. However, as the Society may exercise its rights to appeal, and if I am incorrect in my interpretation of the legal issues, I will nonetheless canvas this final issue.

[153] Was there a palpable and overriding error in the trial judge’s assessment and review of the evidence?

[154] I am advised by both counsel that this was the trial judge’s first trial. I note from reading the submissions made at the conclusion of the hearing that the trial judge received very, very limited assistance from counsel as to the law, the guiding principles, and general approach in the two phases of a child protection matters in this blended hearing.

[155] The focus of the oral submissions was the question of conflict between the Mother and the Society, with little precision or focus about the requirements of the CFSA, the appropriate evidence to consider, and the legal tests to apply.

[156] The reasons of the trial judge disclose that there was no review of much of the evidence of the Mother, including that of the witnesses called on her behalf, or evidence supporting her position. The trial judge did not consider 26 of the 28 exhibits filed.

[157] The evidence, considered globally, including a review of all of the transcipts confirms that the Child was thriving in the Mother’s care at the time of apprehension. There were only certain limited problems regarding backup support when the Child was sick and the Mother’s litany of conflict with the Society and, to some more limited degree, with the first daycare center.

[158] For the reasons that I will outline, a review of all of the evidence before the trial judge confirms that she made palpable and overriding errors in her assessment of the evidence.

The legal test and guidelines for a finding of palpable and overriding error

[159] Justice Backhouse confirms in Children's Aid Society of Toronto v. C. (S.A.), [2005] O.J. No. 4718, at para. 12, aff'd 2007 ONCA 474, that, in the family law context a reviewing court owes considerable deference to the findings of fact of the trial judge:

Appellate courts have a narrow scope of review because of the fact-based and discretionary nature of the decisions to be made. Appellate courts must give considerable deference to the decisions of family and child protection courts [See C. (G.C.) v. New Brunswick (Minister of Health & Community Services), [1988] 1 S.C.R. 1073, at para. 5; Nouveau-Brunswick (Ministre de la santé & des services communautaires) c. L. (M.), [1998] 2 S.C.R. 534, at paras. 34-36; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. [11]](https://www.canlii.org/en/ca/scc/doc/2001/2001scc60/2001scc60.html).

[160] In Children's Aid Society of Niagara Region v. C. (J.) (2007), 281 D.L.R. (4th) 328, at para. 6, Aitken J. summarized several principles relevant to an appeal of an access decision that would also apply to reviewing a protection finding. There must be a material error, or a serious misapprehension of the evidence:

An appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law; however, it is not entitled to overturn a trial judge's decision in regard to access rights simply because it would have made a different decision or balanced the factors differently. (See Hickey v. Hickey, [1999] 2 S.C.R. 518 (S.C.C.) per L'Heureux-Dube J.; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 (S.C.C.) at paras. 11 and 12 per Bastarache J.) Bastarache J. in Van de Perre, supra went on to state:

... the approach to appellate review requires an indication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.

[Emphasis added.]

[161] In R. v. M. (R.E.), 2008 SCC 51, 297 D.L.R. (4th) 577, the Supreme Court considered whether the reasons for a criminal conviction under appeal were sufficient. The decision provides helpful guidance on the general approach that an appellate court should take when reviewing a decision below. McLachlin C.J.C. explained, at para. 56, that:

[…] The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out. […] Finally, appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. As was established in R. v. Harper, [1982] 1 S.C.R. 2 (S.C.C.), at p. 14, "[a]n appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence.... Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.

[Emphasis added.]

[162] In L. (H.) v. Canada (Attorney General), 2005 SCC 25, 251 D.L.R. (4th) 604, Fish J. urges caution by a reviewing court in reaching the conclusion that there is a palpable and overriding error. He explained, at para. 56, that:

[…] But as a matter of principle, it seems to me that unreasonable findings of fact — relating to credibility, to primary or inferred "evidential" facts, or to facts in issue — are reviewable on appeal because they are "palpably" or "clearly" wrong. The same is true of findings that are unsupported by the evidence. I need hardly repeat, however, that appellate intervention will only be warranted where the court can explain why or in what respect the impugned finding is unreasonable or unsupported by the evidence. And the reviewing court must of course be persuaded that the impugned factual finding is likely to have affected the result.

[Emphasis added.]

[163] In Peart v. Peel (Regional Municipality) Police Services Board (2006), 217 O.A.C. 269 (Ont. C.A.), Doherty J.A. provides helpful guidance as to what constitutes an error of fact warranting appellate intervention, at para. 159:

It is probably impossible to provide an exhaustive list of the errors in the fact finding process that could potentially produce an unreasonable finding of fact. The list would, however, include:

• the failure to consider relevant evidence;

• the misapprehension of relevant evidence;

• the consideration of irrelevant evidence;

• a finding that had no basis in the evidence; and

• a finding based on an inference that is outside of even the generous ambit within which there may be reasonable disagreement as to the inference to be drawn; that is, an inference that is speculation rather than legitimate inference.

Analysis

[164] The Appellant argues that much of the undisputed evidence of the Mother supportive of her position either was not considered at all in the reasons, or is considered in such a cursory manner to be inadequate. I will consider the concerns raised.

The Child’s pediatrician

[165] The Child’s pediatrician was called as a Society witness. The trial judge relied on the evidence of the Child’s pediatrician that the Mother did not consent to genetic testing, prior to the apprehension, and that she was in denial of the diagnosis.

[166] The trial judge failed to consider the other evidence given by this neutral witness helpful to the Mother’s case.

[167] The doctor confirmed that A. was highly functioning for a Down Syndrome child and that he was walking and interacting with some verbalization at the time of apprehension shortly after his second birthday.

[168] The Mother had attended all regular medical appointments totaling 13 from the Child’s birth up to apprehension. He confirmed that her follow up “was very good” and that she had followed up on all the requisitions for medical tests recommended by the doctor usual in a case of Down Syndrome.

[169] There was some uncertainty about the last thyroid and anemia test ordered during the last visit with the doctor in July 2015. The Mother confirmed that she had taken the Child in. The doctor’s evidence was that that he did not get the tests back.[^4] Notwithstanding this ambiguity in the doctor’s evidence, the trial judge concluded, at para. 188, that the Mother had not taken the Child for the testing, listing the failure as a risk of harm.

[170] The Mother testified, and the doctor confirmed, that she was asking the doctor questions about the Child’s development.

[171] The doctor was taking steps with the Mother to address the Down Syndrome developmental issues. Mother, at his recommendation had made the contact to explore additional specialized care for the Child. He had a signed consent in his file to get information from the Better Beginnings Programme dated October 4, 2012 where the Mother and Child were attending programmes. This was approximately one year prior to the apprehension. He also confirmed that he had a letter in his file dated January 14, 2013 from Surrey Place, seven months prior to apprehension confirming that the Mother and Child were clients. The trial judge found that the Mother refused to cooperate and attend at Surrey Place.

[172] Notwithstanding the Mother’s refusal to get the genetic testing, it appears that reasonable steps to address developmental issues were being explored prior the apprehension of the Child.

[173] The doctor saw the Mother and Child in July 2014 after the Child had been returned to her care. The Mother was very unhappy and angry about the whole process and was concerned that the Child had regressed while in foster care.

[174] The doctor testified that A. was closely bonded to the Mother and that none of the criteria for emotional harm were present. His evidence about emotional harm is as follows:[^5]

Q. So, Dr. Porepa, of those 13 times or so when you saw A., would you agree with me that you never observed him to have serious anxiety?

A. I never saw him have any anxiety. Anxiety at that age, I mean if you’re talking about, you know, extremely agitated or whatever, I mean, they’re usually agitated because I’m there. But I did not see anything out of the ordinary with him.

Q. You never observed A. to have serious depression?

A. No, no.

Q. You never observed A. to have serious withdrawal?

A. No, he was very attached to mom.

Q. And you never observed A. to demonstrate serious self-destructive or aggressive behavior?

A. No.

Q. And you never thought that there was risk that A. was likely to suffer any of the above things I just mentioned due to his mother?

A. No, just the opposite. I thought she was very attentive and very concerned about him, and that came through.

[175] His evidence about a risk of delayed development about the Mother was as follows:[^6]

Q. And did you think he was at risk of serious delayed development as a result of his mother?

A. Hard to say. I thought that if he would get into a more, you know, structured type of follow-up such as Surrey Place there would be certain advantages to him, and again, I thought that was already underway, so to speak.

Q. Right. But you already indicated there are other resources…

A. Correct.

Q. …in the community that provide structured…

A. Yes, and that he was attending, I think, a daycare situation, so that was -- social stimulation was very important.

[176] The Court asked pertinent questions to the Doctor at the conclusion of his evidence. His answers again were not considered in the reasons:[^7]

THE COURT: How would you describe your working relationship with mother throughout?

THE WITNESS: Interesting, because, you know, I kept commenting that, you know, I think we have this diagnosis that we need to recognize, and she completely denied that. And basically I would carry on with the examinations and try to, you know, suggest certain testing that she did follow through and then she would come on regular visits. So, except for that one area, you know, it was sort of just a regular type of relationship.

THE COURT: Okay. And how did, if it -- did that denial of the diagnosis or the unwillingness to confirm the diagnosis, did that affect your recommendations, your conversations, etcetera?

THE WITNESS: No. I mean, I tried to look after his own interest and that meant, you know, giving him the immunizations, checking him for his regular development and suggesting things, and then constantly, you know, commenting about the fact that she was denying his condition and I know that I mentioned to her that I think it’s important to do that, but then we just kept on going for the regular visits.

THE COURT: Well, how would the visits have been different, if at all, if you -- if the diagnosis was confirmed?

THE WITNESS: Well, I think also there would have been perhaps some type of, you could say, referral onto the -- a willingness to refer onto something like Surrey Place where there would be a general sort of clearing house of different services that could be provided, and I was trying to do that on my own way, basically, and she was also helping in some way with the, you know, the daycare situation and that type of thing. But it was, I mean, I was still trying to provide the best I could for him, so from that point of view we still kept going and maintained that relationship.

THE COURT: Did you ever call the Children’s Aid Society in relation to the -- A.?

THE WITNESS: No, I did not.

THE COURT: You were asked by mother’s counsel if mother ever said to you that she didn’t need the diagnosis as it wouldn’t change the care she would give A., and you said she may have said that. Is that -- if she had said that, how would you respond to that?

THE WITNESS: Well, I still would have thought that it was important to have the diagnosis determined because it would clarify other conditions that could evolve over time. We would still be, you know, still be -- what’s the word -- on surveillance to make sure that those were not developing, but there would also basically be that connection to the, you know the child services through Surrey Place and that opens up other doors in terms of other support services.

THE COURT: Now, if A. was diagnosed with Down syndrome at the time, at any of the times that you recommended it, in your opinion, should it change the way that a parent or in this case the mother would care for him?

THE WITNESS: No. No, she would care for him.

THE COURT: It would not change?

THE WITNESS: In terms of her love for him, her ability to care for him, I would say no.

THE COURT: Okay. So, that is physical care, you are saying? Physical care would not change?

THE WITNESS: No, I think emotional care as well. I mean, she was very emotionally attached to him for sure.

[177] None of this relevant, independent evidence given by the Child’s doctor was reviewed in the reasons of the trial judge.

Family Life Prior to Apprehension

[178] Prior to apprehension, although the Mother had resisted genetic testing, she testified that was asking questions to the doctor about A.’s development. This was confirmed by the Child’s doctor.

[179] The Mother was taking the Child to a large variety of child-focused programs in the community as recommended by the pediatrician.

[180] The Mother attended the tri-weekly family resource programme offered by Better Beginnings from September 2011 to June 2013. She completed The Baby and You and the Toddler programme from September 2011 to June 2013.

[181] A letter dated October 25, 2013 from the Toronto Christian Resource Centre confirms the Mother’s attendance several times a week with A. from January 2012 to the time of apprehension in September 2013:[^8]

N. has been using our services since January 2012 and has been accompanied by her son, A. a few times a week. When A. is here he looks very happy and love to interact and smile with the volunteers and staff. N. has provided him food and a social place to be. He is well supervised by his mother while they are at CRC. N. has been patient with A. and normally comes from a program where A. can socialize with other children his own age. I have never seen N. under the influence. N. puts the needs of her children before herself.

Efforts and Observations of the Mother post apprehension

[182] The Mother expressed concern that the Child was regressing in foster care.

[183] At the time of apprehension he was two years old, and two months. He was eating regular foods and loved fish and paella. He sat at a regular chair. He was able to eat from a plate and was learning how to use utensils. The pediatrician confirmed he was able to do by his second birthday, prior to apprehension.

[184] A great deal of time was spent on whether the Child was toilet trained at the time of apprehension. At apprehension, A. was wearing pull up diapers at night and Mother had made significant progress with toilet training. The evidence supports the finding that the Child was not fully toilet trained by the time of apprehension, as suggested by the Mother, but that significant progress had been made.

[185] When the Child was taken into foster care, he was put into diapers full time that were too tight. The Mother was concerned that he was regressing as he was receiving pureed food and sitting in a highchair and was being carried, rather than being encouraged to walk on his own. He developed a rash around his mouth when in foster care that the Society worker confirmed had disappeared when the Child was in the Mother’s care.

[186] The trial judge made fleeting reference to the accomplishments of the Child towards independence at the time of apprehension as a result of the Mother’s efforts. The trial judge did not appear to accept the Mother’s concerns about regression, although it appears to be supported by the evidence.

[187] The pediatrician who conducted an assessment of A. for the Society in January 2014, while he was in foster care, and while Mother was exercising access, recommended that the Child would benefit from attendance at daycare.

[188] The Mother showed initiative and accessed on her own community resources to try to get the Child into daycare while he was in foster care.

[189] The letter from the social worker, Ms. Porter, confirms that, as of May 2014, while the Child was in foster care, the Mother met with a worker from the Better Beginnings organization to apply for a subsidy for daycare and for treatment recommended for his special needs:[^9]

Ms. V. lives outside our catchment area, therefore is ineligible for our School Readiness program. Due to this, Ms. V. met with this worker on May 22 2014, and made a plan to apply for childcare subsidy under the criteria for child with special needs in order for A. to gain the developmental stimulation he requires by attending a child care centre daily. At this daycare, A. will be connected to a Special Needs Consultant, who will ensure his needs are assessed and that crucial interventions are applied.

[190] The Mother testified that she obtained the subsidy, with the assistance of the worker, and began contacting the list of 25 day care centers to find a placement for A. She succeeded. She, not the Society, found the initial day care center, Silverstone Montesorri School.

[191] There is little credit given in the reasons of this important initiative, that, to the surprise of the Society, the Mother found the Child’s daycare placement.

[192] It was largely as a result of the Mother’s initiative in finding a day care center that the Child was returned to her care first by way of extended visit on June 19, 2014, and then by a consent order dated July 30, 2014.

[193] Ms. Cherniavsky, the Society worker, confirmed that, after the second apprehension, for A.’s fourth birthday, the Mother arranged a “huge great amazing birthday for the Child at the Society office”.

S.

[194] The trial judge did not consider as an important fact that the Mother had successfully raised a child as a single mother, without conflict with authority, with excellent results.

[195] The trial judge did say, at para. 211, that “The mother’s older daughter did well in her care and is attending college.” The trial judge did confirm that a positive aspect of the Mother’s plan was that the Child would enjoy a relationship with his biological sister.

[196] The reasons did not consider in any fulsome way the description by S. of the qualities of the Mother and the bonded relationship between the members of the family. S. was not cross-examined on her evidence.

[197] She referred, at para. 206, to the Mother’s support network being comprised of her daughter and “the Yonge Street Mission whose food bank she has used in the past.” The reference to the food bank did not make it clear that the Mother and daughter did volunteer work for several years at the food bank, as confirmed in one of the trial exhibits, not that they were there to get food.

[198] Otherwise, the reasons mention the daughter in the following negative contexts: going on the Cuba trip, the Mother refusing to let an intake worker talk to the daughter, the supervision terms requiring the Mother to make the daughter available for appointments, and the Mother giving evidence that she had no supports other than her daughter.

Conflict

Issues with the Society

[199] The evidence discloses that the Society bears some responsibility for the strained and difficult relationship with the Mother.

[200] Counsel for the Society acknowledged in argument before the trial judge that—although the Mother was stubborn, proud, independent, and resistant—the Society was not without some responsibility for the problems and the conflict:[^10]

The Society acknowledges Your Honour, that mistakes were made by the Society workers in this case on multiple occasions. We don’t deny it. There’s things we could have done better and lessons learned- will be learned, but it doesn’t diminish the protection issues in relation to Ms. V.C.

[201] The role and responsibility of the Society for the communication problems with the Mother was not canvassed in the reasons.

[202] The Mother testified about her considerable difficulties in getting hold of anyone at the Society to set up access after the initial apprehension. This does not appear to be disputed. It was only after many calls, and when the Mother came in personally, that access post-apprehension was established. The trial judge was very critical of the Mother for not exercising access sooner, when the evidence supports the reasonable conclusion that the Society was partially responsible for the initial problem arranging access after apprehension.

[203] The trial judge was very critical of the Mother taking the daughter to Cuba for seven days after the apprehension of the Child, as previously planned, without consideration of the context. The Mother had planned the trip to Cuba to celebrate her daughter’s 15th birthday, and to introduce A. to her family. The trip had been planned for some time. Her plane tickets were non refundable. The cost of these tickets to the Mother was significant, totaling two months’ wages.

[204] The Mother was a single parent who was working at various factory placements without many external supports other than her daughter. Issues arose when the Child was sick and the Mother was unreachable as she was not allowed to take calls while on an assembly line. There is no evidence of any attempt by the Society to assist or support the Mother in finding a solution to these problems when the daycare had difficulty contacting her while she was at work.

[205] Ms. Magali Cherniavsky was the Society worker who had been assigned to this file from October 2013 and continuing to the second apprehension and trial. She had significant difficulties engaging with the Mother from the beginning in October 2013 to the time of trial. A suggestion was made to try to use different strategies to engage the mother. Ms. Cherniavsky confirmed that no such strategies were attempted.

[206] It was clear from a review of the transcripts that Mother did not appreciate the intervention and attitude of Ms. Cherniavsky and that the feeling was reciprocal.

[207] The Child was doing well after he was returned to the Mother’s care, beginning in June 2014, apart from the conflict with the Society workers and, to a lesser degree, problems with the first daycare.

[208] Ms. Cherniavsky’s affidavit does not include positive facts about the Mother. For instance, there was a meeting in January 2014 at Surrey Place with Ms. Cherniavsky and the Mother. Ms. Cherniavsky made a note that “mum accepted that A. has Down Syndrome as a true fact”. The Mother expressed at the meeting that she was “open to whatever he needs”.

[209] Similarly, in June 2014, Erin Sclisizzi, a Society worker with expertise with special needs children, observed in a home visit “there were no concerns about interaction of mum and child.” Her case note also provides that the Mother was providing “appropriate stimulation, playful, providing structure and routine”.

[210] These relevant facts helpful to the Mother’s position are not contained in the Society affidavit, and are not considered by the trial judge.

[211] Ms. Cherniavsky had visited the home on numerous occasions over months becoming years. She and the other Society workers and their counsel confirmed that there were no issues of concern with the Mother’s home. It was clearly child-focused, clean, and appropriate. There were no issues whatsoever about alcohol. The Mother resisted the worker coming into her home. On one home visit, in January 2015, Ms. Cherniavsky attended with two police officers. The Mother was cooperative.

[212] The reason for the second apprehension was that the Mother refused to allow continued access to her home and refused to sign the Society documents to provide consent for them to have access to the new daycare at St. Dorothy’s.

[213] In her affidavit filed for the hearing, Ms. Cherniavsky, the Society worker, confirmed:

• The Mother advised her on February 5, 2015 that she had registered A. at St. Dorothy’s daycare. In her evidence, Ms. Cherniavsky confirmed during this conversation that Mother was very friendly and invited her to a meeting at the new daycare and with the Surrey Place staff.

• On February 17, 2015, A. started at the new daycare.

• On February 18, Ms. Cherniavsky attended to observe the Child at the daycare. Her affidavit states: “He presented well groomed and had appropriate clothes for the weather”. In her evidence, Ms. Cherniavsky confirmed that the Mother took her for a tour of the daycare and the kindergarten.

• The Mother confirmed that she would not allow her to attend her home, “however the Society worker can see A. at the day care”.

• On March 3, 2015, the worker went to the daycare to observe. She stated “I observed A. to be clean and he appeared to be okay. I then met with the supervisor at the daycare Daniela Suarez who reported that she had no concerns with A.”

• On March 10, Ms. Cherniavsky brought a motion to bring the Child back into foster care as “it was impossible for me to supervise Ms. V.C.”.

[Emphasis added]

[214] The Mother testified that she had understood from her lawyer that the term of supervision lasted six months. This understanding was not correct. The consent order made July 19, 2014 did not contain any time limits.

[215] Although the Mother should have consulted with her worker at the Society before making a change in the daycare arrangements, clearly the Society worker had notice of the change in the daycare.

[216] The Mother and the supervisor at St. Dorothy’s confirmed that the Mother had signed the Parent Consent to Exchange Information, marked as Exhibit X in the proceeding for St. Dorothy’s at the request of the supervisor. This consent gave permission to the school to “obtain and report” information to the Catholic Children’s Aid Society of Toronto relating to A.’s “physical, social/emotional, language and cognitive development” (the Consent).

[217] The important facts that consent had been provided, both orally and in writing are not accurately reflected in the reasons at 25, 26, 66 and 68. The following are the excerpts from two of the paragraphs;

25. …. the mother moved the child to St. Dorothy's Daycare and refused to provide the society with a consent to obtain information from and communicate with the new daycare staff.

26. Ms. Cherniavsky gave evidence that in addition to refusing to allow her into the home, the mother changed the child's daycare and refused to provide a consent allowing Ms. Cherniavsky to communicate with the new daycare.

[Emphasis added.]

[218] There is no evidence in the appeal record whether it was brought to the attention of the judge hearing the re-apprehension application on March 17, 2015 that the Mother had confirmed orally to her worker, and in writing that she was consenting to the Society having visits with A. at the daycare, but not in her home.

[219] The worker had in fact attended on two occasions and observed that the Child was doing well.

[220] The evidence of the Society was that they “begged” the Mother to sign the papers to allow access to her home and to the daycare, and, if so, they would withdraw their application. It is not clear to me whether the Mother had counsel at the time.

[221] At the time of the second apprehension, given the conflict and the consistently positive findings about the home environment over a very lengthy period of time, I have concerns about whether it was necessary to require supervision terms to continue in the home. The visits were very troubling to the Mother. Would it not have been reasonable to modify the terms of supervision, so long as the Society could attend and make inquiries about the Child at St. Dorothy’s daycare in accordance with her verbal consent given to her worker, and the written consent filed as an exhibit?

[222] The Mother’s stubbornness and pride resulted in the second apprehension as she wanted the Society out of her life. The stubbornness appears to be reciprocal, with the Society worker insisting on supervision terms in her home that do not appear to have been a valid protection concern at the time.

Issues with daycare

[223] The trial judge relied on the conflict between the Mother and the first daycare in support of her conclusion that the Mother could not work cooperatively with others for the benefit of the Child. The trial judge in her reasons did not consider in any fulsome manner the evidence given with respect to problems experienced with the first daycare.

[224] There were some concerns raised by the first daycare, which were confirmed in a letter written at the request of the Society by the supervisor at the first day care center.

[225] This letter was filed in the second apprehension hearing and at the final hearing. The supervisor was cross-examined on the contents of the letter. The trial judge appears by her findings of fact to accept that aspects of the complaints made by the daycare supervisor in the letter dated February 24, 2015 were exaggerated or unfounded. For instance, the letter makes a statement about the Child smelling. In cross-examination the supervisor confirmed that this was an isolated incident in the summer of 2014 and that the Child was clean. The trial judge does not specifically criticize the supervisor for what appeared to be exaggerated or unfounded allegations considered at the apprehension hearing on March 17, 2015, and also filed at the hearing.

[226] There was a problem in the first daycare that the Mother had brought the Child to daycare on several occasions when he had a fever. The supervisor had difficulties getting hold of the Mother, due to her work obligations, and would routinely call the Society. The Mother was frustrated by the frequent calls by the daycare to the Society and felt that the daycare had aligned with the Society against her.

[227] The final incident at the day care was when the Mother got into some sort of altercation with a 15 year old child and the police were called, although did not intervene. Again, this was fully canvassed in a critical way by the trial judge.

[228] Although the Mother’s conduct during this incident was unacceptable, the event that precipitated her excessive reaction was that she came to pick up her child and the staff could not find him. Understandably, she was very upset, and appears to have overreacted inappropriately. The trial judge relied on the incident as a negative finding about the Mother and did not include in her reasons the evidence of the context for the Mother’s excessive reaction.

[229] The finding that the Mother was solely responsibility for the problems with the first daycare does not appear to fairly balance the evidence before the court.

Evidence of the Supervisor at St. Dorothy’s daycare

[230] Ms. Suarez has been an early childhood educator since 1994. She was Spanish speaking and communicated with the Mother in Spanish.

[231] She testified for half a day. She had observed A., and interactions with the Mother, for the month before the apprehension.

[232] After the incident in the first daycare in late January 2015 the Mother began looking for an alternate daycare.

[233] The Mother testified that St. Dorothy’s was the Child’s home school and that her plan was to have A. attend kindergarten there in the fall.

[234] The Mother told the supervisor, Ms. Suarez, at the first meeting at St. Dorothy’s that the Child was registered at another daycare and that he had Down Syndrome. The Mother confirmed that she was involved with Children’s Aid, that the case was open, and that most likely “Maggie”, her worker would be visiting at the daycare. She also confirmed that there was an uncomfortable incident at the first daycare, without providing details to the supervisor.

[235] There was more than one meeting with the Mother prior to the Child visiting St. Dorothy’s daycare.

[236] The Child and Mother were invited to an initial visit to St. Dorothy’s to assess whether he was an appropriate child for their programme prior to his acceptance. He went immediately to the water play area. A. was interested in the books, and he was compliant about washing his hands before snacks. He did not want to leave at the end of the short visit.

[237] At the first visit, the Mother expressed concern that A. was going to the water play area, as he was going to get sick. Ms. Suarez reassured Mother that was not the case as long as he had dry clothes to put on afterwards. Ms. Suarez did testify that the water itself may transmit sickness, and needs to be changed frequently and the containers sanitized. When there are bouts of sickness, water play is discontinued in St. Dorothy’s as water is a perfect medium to transmit contagious child illnesses.

[238] Ms. Suarez concluded that the Child was a good candidate for St. Dorothy’s daycare programme.

[239] Ms. Suarez explained to the Mother that she had to give reasonable notice of her intention to leave the other daycare and needed to advise and seek the approval from the caseworker who had arranged for the payment of the fees for the subsidized daycare. She had to fill in a registration package prior to acceptance.

[240] The Mother advised her Society worker Ms. Cherniavsky on February 5, 2015 about the new daycare placement. The Mother did not seek her consent for the change in the daycare.

[241] The Mother signed the Consent, as requested by the supervisor at St. Dorothy’s, to allow communication with the Society. The supervisor confirmed that, by the Mother signing the Consent, she was free to respond to any queries from the Society. Ms. Cherniavsky in fact attended on two occasions to observe the Child, on February 18 and March 10, 2015, and spoke to Ms. Suarez.

[242] Ms. Suarez confirmed that she had a positive relationship with the Mother and that all of the special services were either in place, or were being put into place. As A. was already in the system, the special services would be provided without delay by new people who worked in St. Dorothy’s school.

[243] Steps were taken, or were in the process of being taken, to ensure that the support of specialists in areas such as speech therapy, occupational therapy, and special education support were put in place.

[244] The Mother applied for kindergarten at St. Dorothy’s and was accepted. The supervisor observed the Mother participating in the school’s registration night for kindergarten, which took place in February 2015. The Mother was very excited about the programme and the Child’s future at the school.

[245] A consideration of the evidence of Ms. Suarez confirms that the change in the daycare appears to be in the long-term interests of the Child as he was going to make a change in schools anyway in the fall and there would be before care and after care offered in the familiar day care setting next to the kindergarten. The special services would continue seamlessly.

[246] The trial judge did not consider Ms. Suarez’s evidence and concluded that changing day care centers was a significant problem, at paras. 161 and 163, due to delay in obtaining support services. This finding is not supported by the evidence.

[247] A. started at St. Dorothy’s on February 17, 2015. The Society worker visited to observe on February 18, 2015. On February 26, 2015, there was a meeting with the supervisor, the Mother, and the service providers from Surrey Place to plan the transition for special services and how to monitor A.’s progress in the new setting. There was no evidence that the Mother did not cooperatively engage in this meeting.

[248] The Mother accepted that A. could participate in water play at St. Dorothy’s as it was property supervised. A. and waterplay at the first daycare was a large point of conflict.

[249] Ms. Suarez confirmed that the Mother was very attentive to the Child and that she followed closely on a daily basis how things were going.

[250] The Society worker, Ms. Cherniavsky, observed A. and met with Ms. Suarez on March 10, 2015. Ms. Suarez confirmed there were no problems.

[251] Notwithstanding this evidence, the trial judge accepted the submissions of the Society that the change of daycare supported the finding that if the Mother faced future conflict she would simply up and leave. She did not consider that the Mother voluntarily attended child-focused programs on a stable basis for years, not months, prior to apprehension with no evidence of conflict. There was no evidence that the Mother had experienced problems with authority with her daughter’s upbringing.

[252] The trial judge did not consider the cooperative and positive relationship that was developing between the Mother and Ms. Suarez at the time of apprehension. There was no evidence of conflict with the new day care, quite to the contrary. The Mother appeared to be compliant and cooperative with staff, was steady and consistent with her care of the Child, and excited about his future at the school in the fall.

[253] The change of daycare allowed the Mother to start afresh with a new relationship not tainted by her perception, and perhaps the fact, that the first daycare center was closely aligned with the Society and that they were not listening to her.

[254] The Mother refused permission for the Society to come into her home, and refused to sign the consent provided by the Society to allow access to the daycare, although she had signed the daycare’s Consent and Mother had confirmed orally that the Society worker could visit at the daycare.

[255] The Society precipitated the second apprehension on March 17, 2015. It is not clear whether accurate factual materials were before the judge who ordered the apprehension on March 17, 2015 and whether the Mother had counsel.

[256] Ms. Suarez got a call from Ms. Cherniavsky on March 17, 2015 advising that she would be picking up the Child as the Court had ruled that the Mother could not have the Child and asking for him to be ready. Shortly thereafter, the supervisor got a call from the Mother who was very sad, and asked her to give A. a kiss from her. She was not going to attend the day care as she did not want to upset the Child.

[257] Ms. Cherniavsky attended on March 17, 2015 with a police officer to apprehend the Child.

[258] The evidence of Ms. Suarez, who was the supervisor of St. Dorothy’s daycare center, was considered superficially and not given any weight. The reasons refer to her evidence twice. At para 162 the reasons provide that the St. Dorothy’s supervisor gave evidence “that there is a long wait list for the services the child was receiving at the Silverstone Montessori Daycare”. This was not the evidence of Ms. Suarez, as A. was already in the system and the transition could be made promptly. The trial judge also notes at para 206 that Ms. Suarez “gave evidence that the child can attend the daycare and that there is room for the child”.

Conclusion that the failure to address the evidence was a palpable and overriding error

[259] An appellate court has a narrow scope of intervention on questions of fact, and can only intervene if there is a material error in the assessment of the facts. This court should not substitute its own opinion, and should not intervene absent a palpable and overriding error in the factual findings. The reasons must be read generously and all the evidence does not need to be referred to.

[260] However, it is important that any trial judge fairly, in a balanced fashion, review the important evidence called by the parties, particularly the evidence of the losing party. A failure to review and consider important evidence that may change the outcome of a case may be a reviewable error.

[261] A review of the transcript of the submissions during argument confirms that both counsel vigorously argued the factual issues and credibility, paying very little attention to any applicable law or to the disposition. The legal test that must be met at the preliminary stage, and the analysis of the best interests of the Child in the disposition stage, was overshadowed by the details of the history of conflict and the Mother’s resistance to supervision. The reasons, considered as a whole, do not adequately canvas the evidence and address the core issues.

[262] The Appellant argues that the trial judge failed to address in any meaningful way the evidence that supported the Mother’s position. This included the evidence of: the Child’s pediatrician, who was called as a witness for the Society; the supervisor of the daycare where the Child was enrolled prior to the final apprehension; the Appellant’s 17 year old daughter; and 26 of the 28 the exhibits filed by the Appellant.

[263] I agree with this submission and conclude that failing to consider the evidence supporting the Mother’s position, is a palpable and overriding error.

Disposition

[264] I have concluded that the Child is not in need of protection under any statutory provision. If I am wrong in the legal conclusions reached, I turn to consider disposition.

[265] Section 57 of the CFSA sets out the various disposition options available to a court after a finding of protection. Subsection (1) begins:

Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:

Possible orders include a supervision order, society wardship, Crown wardship, consecutive orders of society wardship and supervision. Subsection (9) provides:

Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

[266] The test at the disposition phase is the best interests of the Child.

[267] I accept the findings of the trial judge about the positive aspects of the Mother’s care outlined in the trial judge’s reasons when she considered disposition at para. 211:

(a) The child will remain in the care of his biological mother and have the opportunity to enjoy a relationship with his biological sister;

(b) The child will continue to learn Spanish and other aspects of his culture;

(c) The child will enjoy a clean home where his needs with respect to shelter, clothing, hygiene and appropriate stimulation will be met;

(d) The mother is able to arrange for an appropriate daycare and a daycare subsidy;

(e) The mother loves her son;

(f) The mother has stable housing and employment;

(g) The mother exposes the child to different places and experiences;

(h) The mother is willing to have services provided to the child at daycare and at school;

(i) The mother has taught the child good manners and social skills; and,

(j) The mother's older daughter did well in her care and is attending college.

[268] The evidence at the hearing supports the finding confirms that A. was thriving in her care at the time of the second apprehension.

[269] I do not accept the finding of the trial judge that the Mother has not accepted that A. has Down Syndrome. Initially she was clearly in denial, but is no longer. I find that she has appropriately educated herself as to what this entails by meeting with an expert from Surrey Place to understand the condition and the Child’s special needs and by conducting research on the internet and at the library.

[270] She has the loving support of her daughter, who is now 19 years of age. The Mother will need support both emotionally and through available social services resources to look after A. Raising a special needs child cannot be done alone.

[271] If the Mother is treated with respect and her concerns are fairly considered, the evidence confirms that she has followed, and will be able to follow the advice of those with special expertise—including doctors, therapists, and teachers—in the best interests of A.

[272] The evidence supports the finding that the Mother has illustrated that she is both resourceful and tenacious in accessing progammes available before the apprehension of the Child and afterwards. She found and negotiated placements in two day care facilities.

[273] The Mother’s stubbornness and fierce belief in A.’s capacities and potential are assets in raising A., who is a special needs child.

[274] The evidence of adoptability from the Society at the hearing was at best tentative. There was no available family. The Child had already been in two different foster home placements. The second foster mother that she could not adopt and could not keep the child beyond age 5 due to her age.

[275] Had I upheld any finding of a risk of harm (which is not my finding), based upon a review of the evidence as a whole, I would find overwhelmingly that the best interests of A. are that he being returned to his loving home as soon as a structured plan is in place, similar to what was already in place at the time of the second apprehension.

[276] I reiterate my findings about transition to the Mother’s full time unsupervised care of A. outlined in paragraphs 142 to 151 of these reasons.

[277] It appears that it would be appropriate to seek the assistance of the Office of the Children’s Lawyer to assist with a smooth transition, and I am therefore sending these reasons to them.

[278] I would ask that all involved, the Mother, the Society, the foster parents and the counsel to work together in a cooperative manner in the best interests of A. to effect this transition.

[279] I will meet with all concerned at 10 am on February 2, 2017 in the Court House at 393 University Ave.

J. Wilson J.

Date: February 1, 2017

[^1]: Trial Proceedings, November 23, 2015, p. 106, lines 9-15; Catholic Children's Aid Society of Toronto v. C. (N.V.), 2016 ONCJ 191, at paras. 204-206 and 227-238.

[^2]: See e.g. Children's Aid Society of Niagara Region v. P. (D.) (2003), 36 R.F.L. (5th) 265, at para. 21 (Ont. S.C.) [P. (D.)]; Children's Aid Society of Niagara Region v. P. (T.) (2003), 35 R.F.L. (5th) 290, at para. 21 (Ont. S.C.); S. (B.), Re, [1996] O.J. No. 4428 (Ont. C.J. Gen. Div.), at para. 12.

[^3]: Trial Proceedings, November 30, 2015, p. 22, lines 4-25.

[^4]: “Well, I never did get them so I’m not quite sure what happened, whether it was ever done or not”: Trial Proceedings, November 30, p. 11, lines 26-29.

[^5]: Trial Proceedings, November 30, p. 22, lines 4-25.

[^6]: Trial Proceedings, November 30, p. 24, lines 8-20.

[^7]: Trial Proceedings, November 30, pp. 26-29.

[^8]: Letter from Raymond Mallozzi, Drop in Coordinator of CRC re: N.V. C., October 25, 2013.

[^9]: Letter from Julia Porter at Parents for Better Beginnings re: A.V.C., May 22, 2014.

[^10]: Trial Proceedings, December 3, 2015, p. 11, lines 19-25.