COURT FILE NO.: 45/2018 DATE: 20180727 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HURON-PERTH CHILDREN’S AID SOCIETY Appellant – and – CF and JRTF Respondents
Counsel: Barbara Tuer, for the Appellant James McIlhargey for the Respondents Rein Kao, appointed by the Office of the Children’s Lawyer for the child, JJ
HEARD: July 12, 2018
PUBLICATION BAN INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT
McArthur, M.D., J.
Introduction
[1] The Society appeals the decision of a judge of the Ontario Court of Justice made in Goderich on May 4, 2018. That decision returned JJ, a 10 year old child, to the respondent grandparents. JJ had been in extended society care with the respondents and had recently been placed with other foster parents. The respondent grandparents had brought a status review motion a short time after the child’s temporary placement where the child had been in the respondent’s de facto care for approximately 4 ½ years. That decision has been stayed pending this determination.
[2] The legal issue here involves mainly the role of the status quo in an extended society care situation and how and when the custody and care can change the status quo. There is a publication prohibition in effect.
The Position of the Parties
[3] The Society submits the judge misapplied the test set out in Section 115(10) of the Child, Youth and Family Services Act (formerly Section 65.2(10) of the Child and Family Services Act) by (1) failing to maintain the status quo such that the child remain in the care of the Society pending the hearing of the status review application and (2) placing the child in an unlicensed resource home contrary to Section 247 of the Child, Youth and Family Services Act.
[4] The respondents submit that no error occurred and, even if there was an error, the order should still stand based on the best interests of the child and exercising this courts parens patriae power.
[5] Mr. Kao, as appointed by the Office of the Children’s Lawyer, submitted that the child’s desire was to return to the respondents’ home and that this was in the child’s best interest. He also maintained that maltreatment of JJ by his biological father was the most significant life experience as revealed in an assessment report.
The Law
[6] Section 115(10) of the Child, Youth and Family Services Act provides:
If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the best interests require a change in the child’s care and custody.
[7] Section 247 of the Child, Youth and Family Services Act provides:
No licencee shall place a child in a children’s residence or other place where residential care is provided except in accordance with this Act, the regulations and directives.
[8] The standard of review on appeal on a question of law is correctness; on a question of fact the standard is palpable and overriding error. Where a judge draws inferences from facts, the standard of review first is whether the judge made a palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inference from those factual findings. With respect to a mixed question of fact and law involving a trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error. If the mixed question of fact and law involves a trial judge’s interpretation of a legal standard, the error must constitute an error in law and is therefore subject to the standard of correctness.
[9] Here, the standard of review with the judge’s decision is correctness since the judge’s interpretation of the legal standard has been raised.
[10] I am mindful that it is not the function of the appeal court to retry cases. I adopt the statement of MacPherson J. in The Children’s Aid Society of the Regional Municipality of Waterloo v. S.L.S., 2010 ONSC 2523 at paragraph 13 that:
In family law cases, 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 [citations omitted].
Factual Background
[11] JJ had been in the care of the respondent grandparents for approximately 4 ½ years before being placed in temporary care in a foster home. The respondents could no longer be licenced by the Society due to incidents of physical discipline upon the child while with the respondents. This involved putting soap in the child’s mouth to prevent swearing as well as spanking.
[12] When the physical discipline incidents became known, the Society considered other options and acted in accordance with its statutory obligations. Factored into this at the time was other conduct including the respondents permitting their daughter, the biological mother of JJ, to stay in their home and, another time, having the biological father in the home without informing the Society.
[13] The Society was left in an untenable position. They took steps to place the child with another foster home. These steps were legitimate, necessary and done in good faith despite the respondents taking exception to the involvement and efforts of the Society.
[14] The following is a broader chronological outline to provide a full context in these unusual circumstances.
[15] On April 30, 2013, JJ and his younger brother DD-A were placed in the care of the respondents, CF and JF, JJ’s maternal grandmother and step-grandfather pursuant, to a temporary supervision order.
[16] On May, 2014, JJ’s younger half-sister, ‘I’ was placed in the ‘F’ home by the Haldimand-Norfolk Children’s Aid Society. ‘I’ became a Crown ward in January 2014 and was adopted by the respondents in 2015.
[17] On December 22, 2014, JJ and DD-A were made wards of the Crown. JJ and DD-A remained with the respondents who became JJ and DD-A’s foster parents. By June 9, 2016, DD-A was removed from the respondent’s home at their request due to his conduct. As noted by the judge, after this time relations between the respondents and Society deteriorated.
[18] On November 1, 2017, Society provided the respondents notice that the respondent’s home would be closed as a resource home effective November 13, 2017 and that JJ would then be removed from their home.
[19] On November 9, 2017, the respondents commence an application with the Child and Family Services Board (“CFSRB”) requesting a review of the proposed removal of JJ from their home. On November 15, 2017, JJ was removed from the respondents’ home pursuant to a warrant to apprehend. The CFSRB hearing dates in December were adjourned to allow the respondents to bring a Status Review Application.
[20] The respondents commenced a Status Review Application before the Ontario Court of Justice at Goderich and also brought a motion pursuant to s. 68(10) of the Child and Family Services Act requesting that the child JJ be placed in their care pursuant to s. 68(1) of the Child and Family Services Act, with an initial return date of January 9, 2018.
[21] On April 3, 2018, the temporary care and custody motion was heard and the decision was reserved. On May 4, 2018, Justice MacDonald’s decision placed the child JJ in the temporary care of the respondents subject to the supervision of the Society.
[22] The Society immediately appealed the decision and brought a motion for the stay of the temporary order which was granted then and on subsequent occasions through to the hearing of the appeal.
[23] While in the temporary placement since November 14, 2017 to the present date, the emotional and educational challenges and needs of the child as identified by the Society were, and continue to be, reasonably and adequately addressed in a foster placement where the child has made several gains emotionally, academically and physically. Various professionals have been involved throughout as well as various therapy providers that include aspects of vision, speech, behaviour and academics.
Analysis and Findings
[24] In reasons of approximately 26 pages, the judge recognized that JJ experienced significant past trauma largely at the hands of his biological father, losses and other problems but that the child possessed many positive elements and capabilities. The judge was also aware of the broader background, context and circumstances.
[25] The judge expressly referred to Section 115(10) of the Child, Youth and Family Services Act and recognized that there is a presumption the original protection order was correct, that the onus to change the status quo was on the party attempting to change it and that he directed himself that the best interests of the child was required to be determined to justify any change in the care and custody of the child.
[26] The judge also specifically addressed the relevant statutorily enumerated considerations that included the importance, nature and extent of emotional harm and possible physical harm as well as the degree of risks with the respondents.
[27] There was substantial evidence presented, considered and weighed by the judge including affidavits from various parties and included psychological assessments of the child and school report cards.
The respondents becoming unlicenced
[28] The respondents’ unfortunate perspective of the Society and the deterioration of the relationship with the Society was also identified by the judge. The Society was properly required to seek an alternative placement in the circumstances. The judge considered how and why the respondents became unlicensed and assessed this fact in the overall considerations of the best interests of the child. He properly weighed this feature in his analysis and placed it in a proper context.
[29] The unlicenced status of the respondents ultimately lead to the inevitable placement of the child in another foster home. Section 4 of the Child, Youth and Family Services Act is identical to the former Section 101 of the Child and Family Services Act. This section is clear and provides no service provider or foster parent shall inflict corporal punishment on a child or permit corporal punishment to be inflicted on a child in the course of provision of a service to the child.
[30] The judge has the discretion under Section 115(10) of the Child, Youth and Family Services Act to change the child’s care and custody. The exercise of discretion is by the court is not circumscribed by Section 247 of the Child, Youth and Family Services Act.
[31] The judge was not statutorily required to insist the respondents be licenced by the Society when he made the decision to return the child to the respondents. The judge likewise was alive to these specific statutory provisions and expressly addressed them. I agree with his outline of the law. No error at law occurred in this regard.
[32] It is also important to observe the judge’s indication in his decision to the respondents that if the conditions mentioned were not followed, this could likely lead to apprehension of the child. He also indicated that whatever the reasons for the deterioration of the relationship, the respondents would have to put this behind them.
The status quo and best interests
[33] The Society submits that the judge erred by misapplying the test and ignoring or failing to maintain the status quo to ensure the child remained in the care and custody of the Society pending the hearing of the status review application.
[34] The status quo established in this case was characterized by the judge as “murky”. The judge recognized the legal status quo in the context of the overall circumstances of the child being cared for by the respondents over the preceding 4 ½ years. He also referred to and considered the child’s perspective and wishes as consistently expressed by counsel for the child.
[35] A court must expressly take into account and articulate the relevant factors in a proper and considered context especially when called upon to determine the child’s best interest to justify a change in custody and care. To ignore or give undue weight to the prior circumstances or the overall context would otherwise surrender an inquiry to unwarranted presumptions that risk avoiding meaningful consideration, analysis and review as to the child’s best interest.
[36] The judge’s reference to a material change might cause concern. However, the judge did consider other situations as an aid to the approach and interpretation of the applicable statutory provision here. He does reference “protection language” and adopts the test of Curtis, J. in Children’s Aid Society of Toronto v. L.G., 2012 ONCJ 100, that to be successful in a temporary hearing, the best interests of the child must require a change in the care of the child. He properly regarded this as “strong language” and appreciated the test as the best interests of the child.
[37] The judge’s reasons clearly demonstrate that he went on to reference, consider and weigh the relevant factors enumerated in Section 74(3) of the Child, Youth and Family Services Act as he was required to do. He was cognizant and respected that the temporary care and custody would continue unless it was in the child’s best interest to effect a change in care and custody.
[38] The judge expressly took into account and articulated those relevant factors in the overall context and found that the best interests of the child required a change in care and custody. This was a finding that was available to the judge on the evidence. This was also consistent with the approach approved by Charbonneau, J. in the recently reported case of Valoris pour enfants et adultes de Prescott-Russell c. SMN, SG et VC, AM, 2018 ONCS 3351 where the court made a determination of the best interests of a child and expressly found and articulated the most relevant criteria.
[39] The judge was also explicit in stating that he was not taking the Society’s concern lightly, that this was not a “slam dunk” decision and that, whatever the reason for the deterioration with the Society, the respondents’ responsibility remained to strictly follow recommendations of the Society.
[40] In the circumstances, the judge did not err as to the status quo nor in his consideration and analysis of the best interests of the child.
Conclusion and costs
[41] No errors at law occurred here. The appeal is dismissed. The order of the judge shall be reinstated subject to the child being returned to the respondents on or before August 3, 2018 at noon. A settlement conference is set for August 31, 2018 or on a mutual date as agreed to by the parties otherwise.
[42] This was and remains a difficult situation involving a young child. There is sincere interest on the part of everyone involved in this case including that of the current foster parents which is laudable and encouraging. I am mindful that the child has been in foster care for approximately the past 8 months and has had continued contact with the respondents. I am also mindful that adjustments for the child from a change in custody and care can be expected.
[43] This case demonstrates the challenges that arise when capable, good faith efforts, respect, understanding and functional relationships are not aligned, conflict and stumble to address the challenges and needs of children. A child’s interests will always be better served with timely and collective attention, care, concern and effort.
[44] This is not an appropriate case for costs. No costs are ordered.