Court File and Parties

COURT FILE NO.: FS-16-000021035 DATE: July 19, 2018 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jacqueline O’Donnell, Applicant in the Motion to Change, Respondent in the Appeal AND: Carlene Checkett, Respondent in the Motion to Change and Appellant

BEFORE: Kiteley J.

COUNSEL: Hugh Evans, for the Appellant Joan Manafa, for the Respondent

HEARD: July 19, 2018

Endorsement

[1] This is an appeal by Carlene Checkett, the biological mother of Mackenzie Smith born March 31, 2008, in which Curtis J. made a final order permitting Ms. O’Donnell, the paternal grandmother who has had care and then custody of the child from her age of 3 months, to relocate with the child to Alberta, and she made an order terminating the access of the biological mother. The appeal relates only to the termination of access.

[2] The hearing before Curtis J. in June 2016 included affidavits of the grandmother, the biological father, the biological mother, the domestic partner of the biological father, the sister and aunt of the biological mother, and oral evidence in cross-examination. In addition, two police officers and an Intake Worker at the Children’s Aid Society gave evidence. The Trial Judge gave oral reasons for decision on July 4, 2016.

[3] The Trial Judge held that it was in the best interests of the child that the paternal grandmother be permitted to relocate with the child and it was in the best interests of the child that the supervised access that had been in place until the temporary order made July 17, 2015 be terminated.

[4] The appellate court cannot merely substitute its own exercise of discretion and cannot reverse the order merely because the appellate judge would have exercised discretion in a different way. Friends of Oldman River v. Canada [1992] 1 S.C.R. 76. The most succinct statement of the standard of review is found in the decision of the Supreme Court of Canada in Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235. In this case, the decision under review is a question of mixed fact and law because it engaged the application of the test of the best interests of the child to the facts provided in evidence. I may overturn the decision only if the Appellant satisfies me that the Trial Judge made a palpable and overriding error.

[5] Counsel for the Appellant focused on two issues: the finding by the Trial Judge that the mother had been inconsistent in exercising the access to which she was entitled; and the finding that, based on the alleged interference by her boyfriend, the mother would not protect the child if a situation of danger was made again.

[6] On the first issue, the Appellant has her own challenges. A Parenting Capacity Assessment in 2013 had indicated that the mother was not high functioning, could not parent on her own for extended periods of time and would have trouble reacting to situations affecting the child. The Assessor recommended that mother’s access should be supervised. The mother had consented to the final order dated January 6, 2014 that she would have regular access supervised by her family members or others agreed to by the paternal grandmother. The evidence is that the mother was not consistent in exercising that access. This was demonstrated at paragraphs 34 to 42 of the affidavit of the paternal grandmother dated June 3, 2016. Indeed, while the mother insisted that her failure to exercise the access to which she was entitled was not as frequent as alleged, she did agree that in the period March 15, 2015, after the issue of abuse by her boyfriend arose and the court made an order for access at a supervised access centre and July 17, 2015 when the court made a temporary order terminating access, she had taken no steps to implement the supervised access at the centre. By the time of the trial in June 2016, she had not seen the child since January 2015. On her own evidence, she was not consistent in exercising access with the child. There was evidence on which the Trial Judge could come to that conclusion. I am not persuaded that the Trial Judge made a palpable and over-riding error in arriving at that finding.

[7] The second finding by the Trial Judge related to the allegation that arose in February 2015 in which the paternal grandmother reported to the CAST that the child had said that the boyfriend of the mother had touched her sexually. On that issue, the Trial Judge heard the evidence of the paternal grandmother, the two police officers and the CAST Intake Worker all of whom were involved in the report to the police, and she had evidence from the mother. In her decision, the Trial Judge did not make a finding that a sexual assault had occurred. It was not necessary for her to do so. She did find that, despite the evidence of independent neutral third party professionals, the mother insisted that the child was not sexually assaulted by her boyfriend. It was her resistance to entertaining that the assault could have occurred in the face of the independent evidence that led the Trial Judge to the conclusion that the mother would not protect the child from contact with the boyfriend as she did not believe that he had harmed the child and indeed continued to be in a relationship with him. The Trial Judge had the evidence of the mother including, for example, that it could not have occurred because the door to the bedroom did not have a lock on it, and including that the charges against the boyfriend were dropped. However, based on the totality of the evidence, the Trial Judge did not accept the evidence of the mother and did accept the evidence of the police officers and the Intake Worker. There was evidence on which the Trial Judge could come to that conclusion. I am not persuaded that the Trial Judge made a palpable and over-riding error in arriving at that finding.

[8] Counsel for the Appellant also argues that the Trial Judge erred by terminating access without considering whether there were other less dramatic alternatives, such as continuing supervision or imposing a condition that the mother could not have access in the presence of her boyfriend. He referred to the decision by Blishen J. dated May 14, 2004 in V.S.J. v L.J.G. at paragraphs 135 to 140. In the case before me, supervised access had been in place for several years. The boyfriend had been a supervisor proposed by the mother and accepted by the paternal grandmother. On the basis of her findings, the Trial Judge was not satisfied that the mother could protect the child. There was evidence on which the Trial Judge could come to that conclusion. I am not persuaded that the Trial Judge made a palpable and over-riding error in arriving at the finding that the best interests of the child could only be met by termination of access.

[9] I understand why the mother pursued this appeal from a decision that has had a significant impact on the relationship between the mother and the child. However, the Appellant must meet the standard of review before the decision can be overturned. On the record before me, she has not succeeded.

Order

[10] The appeal is dismissed.

[11] The Appellant shall pay costs to the Respondent fixed in the amount of $1000 including HST.

Kiteley J. Date: 2018