COURT FILE NO.: FS-18-00006009
DATE: 2019-04-10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto
Applicant/Respondent on Appeal
– and –
RM
Respondent/Appellant on Appeal
Karen Freed and Chithika Withanage, for the Respondent on Appeal
Andrew Burgess, for the Appellant on Appeal
HEARD at Toronto: March 4 2019
On appeal from the decision of Justice Paulseth dated October 4, 2018
C. Horkins J.
Introduction
[1] This is an appeal from the child protection order of Justice Paulseth (the “trial judge”).
[2] The appellant, RM, is the biological mother of D (“the child”), born in 2012. The respondent, Children's Aid Society of Toronto (the "Society"), is charged with administering the Child, Youth and Family Services Act, S.O. 2017, c.14, Sched. 1 (the "CYFSA") in the City of Toronto.
[3] In December 2017, the Society brought a protection application. The Society sought a finding that the child is in need of protection and an order of six months supervision with conditions, with the child remaining in the mother’s care.
[4] The events that led to the protection application involved 16 criminal charges that were laid against GM and the mother’s agreement to act as GM’s surety, with a term that required GM to reside in her home, together with the child. GM is the mother’s brother and the child’s uncle.
[5] The charges against GM involved three teenage girls who were students at the high school where GM worked as a teacher. GM was charged with luring, sexual exploitation, child pornography, and possession of child pornography.
[6] GM lived with the mother and child until January 2018, when his bail conditions were varied and he was required to reside with his mother.
[7] In August 2018, GM pled guilty to two counts of luring a child, one count of making child pornography, and one count of sexual exploitation of a young person. He was sentenced to a 33 month period of incarceration. At the time of the child protection trial, GM was incarcerated.
[8] After a two day trial, the trial judge found that the child is at risk of sexual abuse or exploitation under s.74 (2)(d) of the CYFSA. The trial judge found that a further order under s. 101 of the CYFSA was not necessary to protect the child in the future. The supervision order that the Society requested in the protection application was not pursued.
STANDARD OF REVIEW
[9] The standard of review on an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error.
[10] On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
[11] With respect to findings of fact, an appellate court “may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” (H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 4). The Supreme Court of Canada went on to say (at para. 55) that the language of “palpable and overriding error” and “clearly wrong” found in the case law “encapsulate the same principle: an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”
[12] In child protection cases, appellate courts owe a high degree of deference to the trial judge’s decision. As the court stated in in P.(D.) v. S.(C.), 1993 CanLII 35 (SCC), [1993] 4 S.C.R. 141, at p.192: “On issues of credibility, a trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings” (see also Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at para 33; Children's Aid Society of Toronto v. C.(S.A.), 2005 CanLII 43289 (ON SC), [2005] OJ No 4718 at para. 10 and 12; aff’d 2007 ONCA 474).
[13] Finally, as the court stated in Children's Aid Society of Toronto v. V. L., 2012 ONCA 890 at para 15; leave to appeal refused [2013] S.C.C.A. No. 1112) “the court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.”
grounds of appeal
[14] The first ground of appeal focuses on the alleged absence of evidence to support the finding that the child is in need of protection. This ground of appeal has two parts:
The trial judge erred in law because she found the child to be in need of protection when there was no expert evidence to support the finding.
It was a palpable and overriding error to find the child in need of protection based on the non-expert evidence that the trial judge relied upon. In doing so, the trial judge misapprehended the evidence.
[15] The second ground of appeal deals with the trial judge’s rejection of the expert report that the mother filed and raises an alleged issue of procedural fairness.
[16] The third ground of appeal focuses on the timing of the risk. The trial judge found that the child is in need of protection under s. 74(2)(d). The mother states that the trial judge erred in law because her finding was based on a “retroactive reading” of the section; that a child can be found in need of protection if he was a risk in the past but is not at risk at the time of the order. Specifically, the mother states that the trial judge erred in not following N.V.C. v. Catholic Children’s Aid Society, 2017 ONSC 796 (“N.V.C.”) that was binding on the trial judge.
legal framework of the Protection ORder under appeal
[17] The paramount purpose of the CYFSA as set out in s. 1 is to “promote the best interests, protection and well-being of children”. The CYFSA is remedial legislation and should be interpreted broadly with a view to achieving this purpose.
[18] The structure of a child protection application under the CYFSA is a two-step process. First, the court must decide if the child is in need of protection under s. 74(2) of the CYFSA. This section sets out when a child is in need of protection.
[19] The Society has the onus to prove on a balance of probabilities that the child is in need of protection. The risk of harm must be real and not speculative. The “court may determine that a child is at risk of suffering harm even though the conduct that causes concern is not directed specifically towards that child.” (Catholic Children's Aid Society of Hamilton v. A. (M.), 2012 ONSC 267 at para. 13)
[20] A finding that a child is in need of protection is “an essential stage of a child protection proceeding” (Catholic Children’s Aid Society v. N.N., 2019 ONCJ 8 at para.116). If the court finds that the child is not in need of protection, then that is the end of the Society’s protection application.
[21] In this case, the child was found to be in need of protection under s. 74(2)(d) of the CYFSA, which refers to s. 74(2)(c) as follows:
(2) A child is in need of protection where,
(c) the child has been sexually abused or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child;
(d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c);
[22] If the Court finds that the child is in need of protection, then the second step of the process is engaged under s. 101 of the CYFSA, which states in part:
101 (1) 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 102, in the child’s best interests
[23] An order under s. 101 or 102 is only made if the Court is “satisfied that intervention through a court order is necessary to protect the child in the future”. Such orders are made “in the child’s best interests”, as set out in s. 74(3) of the CYFSA.
[24] Where, as in this case, the Court does not make a s. 101 or 102 order, the protection order stands alone and is not subject to any further review (aside from the review on appeal). If the protection order stands after all appeals are exhausted, then it cannot be withdrawn or terminated.
Summary OF DECISION under appeal
[25] This summary provides an overview of the decision under appeal. The decision is considered further as the grounds of appeal are addressed in the sections to follow.
[26] The trial judge defined the issue single issue before the court as follows:
[8] Has the Society proven on a balance of probabilities that there is a risk that the child is likely to be sexually abused or sexually exploited by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child, pursuant to subsection 74(2)(d) of the Child Youth and Family Services Act? [Emphasis added]
[27] The burden was on the Society to prove on a balance of probabilities that:
(i) there is a risk that the child in question is likely to be sexually abused or sexually exploited by GM;
(ii) the mother having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation; and
(iii) the mother having charge of the child will fail to protect the child.
[28] The trial judge reviewed the evidence. This included a Statement of Agreed Facts, evidence from the criminal proceedings against GM (including an expert report), the evidence of the mother and Society employees, and the procedural history of the protection application. As summarized below, the trial judge found that the Society had proven the three prongs of the test. A protection order was issued.
Probability of Risk of Harm
[29] The trial judge found that there is a probability of risk of harm, and relied on the evidence described below to make this finding.
[30] GM had been luring, exploiting and assaulting female minors for his own sexual gratification. One of the minors was his daughter’s friend. All of the minor female victims were his students. One of the female victims was self-harming before and after the alleged offence.
[31] The criminal court exhibits showed GM’s dependency on pornography involving minor girls, and also a picture of him with a young child mixed in with the pornography.
[32] GM started to use pornography for sexual gratification when he lived with his sister (the child’s mother) for approximately 9 months after separation from his wife.
[33] The evidence also showed that GM had a predilection for secrecy concerning his criminal sexual activities with minors and even his adult sexual relationship with another teacher that occurred around the same time.
[34] The trial judge noted that GM has had a substance abuse dependency, often using daily and that he increased his doses during summers and in recent years.
[35] The mother denied observing or knowing anything about GM’s “criminogenic needs”.
[36] The trial judge explained that although the charges against GM involved 17 year old girls, this did not remove the risk to the child because GM was “secretive, showed extremely poor judgment, abused his position of trust and authority, and lured and groomed his victims for his own sexual gratification”.
[37] The trial judge found that based on this evidence the risk of harm to the child is “real and not speculative”. The trial judge relied on decisions to support her finding that a child can be at risk of harm, even if the conduct in question is not directed specifically toward that child. The trial judge stated as follows:
[85] All of these findings are consistent with a risk of harm that is real and not speculative. See Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273, (Ont. Fam. Ct.).
[86] In the case of Windsor-Essex Children’s Aid Society v. J.C., [2018] O.J. No 3592, the court found a two year old male child to be in need of protection under the risk of sexual abuse or exploitation section, where the father admitted to sexually abusing a 9 year old girl he was babysitting over ten years ago. In that case a forensic psychiatrist said the father was a low risk to re-offend and a social worker found the mother to “have a strong sense of what it means to be protective”.
Should the Mother Know of the Possibility of Sexual Abuse/Sexual Exploitation?
[38] The trial judge found that the second prong of the test was satisfied. As explained in the reasons, “[i]n steadfastly refusing to assess or appreciate any risk by her brother, mother created a substantial risk to her son.” The trial judge found that the evidence of the possibility of risk was “overwhelming” but the mother “deliberately closed her mind to the possibility that her brother was guilty and further, rationalized the conviction as a “plea bargain” and the issues as simply “boundary” problems.”
Will the Mother Fail to Protect the Child?
[39] The trial judge found that the mother’s “lack of insight into the criminal and moral wrongdoing of her brother makes it highly unlikely that she will be able to protect her child.” The trial judge reasoned that the mother “cannot protect against something she refuses to see as a risk”.
[40] The trial judge acknowledged that the mother had voluntarily stated that she would never leave the child alone with GM, and would not allow him back in her home after his release from incarceration. However, the mother resisted the Society’s requests that GM live elsewhere until it was ordered on a motion that he do so. As noted, despite the Society’s concerns, the mother agreed to act as GM’s surety twice, with a condition that GM live with her and the child.
[41] On January 12, 2018, a motion judge granted the Society’s request for a temporary supervision order with terms and conditions. On that motion, the judge ordered GM to leave his sister’s home, even though the bail terms directed that he live with his sister. The motion judge included this term without notice to the parties. The mother appealed. On appeal, the term that required GM to move out of the mother’s home was removed because of the lack of procedural fairness. The rest of the appeal was dismissed. By this point in time, GM’s bail terms had been varied to require him to live with his own mother and he did not return to live with his sister.
[42] The trial judge noted that the mother has offered to employ her brother in her company when he is released from jail. Further, the judge was concerned with GM’s exploitation of young women on line and stated that the child would soon become “savy around electronic social media”. The trial judge also relied on the fact GM’s on line luring activity included a picture of himself with a young child “mixed in with his nude photos and photos of him masturbating to sexual and nude photos.”
Other Factors
[43] As part of the trial judge’s analysis, she considered the mother’s credibility, Dr. Colleton’s report, the timing of the risk, and the ongoing need for protection.
1. Mother’s Credibility
[44] The trial judge appreciated that the mother was shocked and devastated by the charges against her brother. However, the judge found that the mother’s evidence that she has no concern about GM being around the child “strains credulity”. The mother acted as her brother’s surety despite the Society’s concerns and request that he live elsewhere.
[45] The mother was present at the second bail hearing and heard the shocking evidence of the new victims. In the face of this evidence, the mother agreed to continue as her brother’s surety. She refused to acknowledge the Society’s concerns and make arrangements for her brother to live elsewhere.
2. Dr. Colleton’s Report
[46] Dr. Michael Colleton is a forensic psychiatrist who conducted an independent psychiatric evaluation of GM for use at the sentencing hearing.
[47] At the opening of the child protection trial, the Society’s counsel advised the trial judge that the mother would be relying on the expert report of Dr. Colleton, that the Society was not seeking to cross-examine the doctor and the report was being admitted on consent.
[48] The Society counsel also stated in her opening that Dr. Colleton “points out that there is no evidence whatsoever of GM having a paraphilia, being an abnormal sexual preference” such as being “sexually attracted to pre-pubescent” children of the same sex.
[49] Finally, the Society’s counsel told the trial judge that the Society had opted not to call any expert evidence to challenge this report. The report of Dr. Colleton was then filed on consent.
[50] Dr. Colleton assessed GM and found a "low to moderate" risk of recidivism in relation to post-pubescent females. In the "Composite Risk Assessment" portion of his report, he stated:
As mentioned above, future risk would be considerably narrow in terms of potential victims, given the nature and circumstances of the alleged offending. It would likely occur with sexually mature females in their late teens (i.e. not pre-pubescent or pubescent individuals), who are in close contact with [GM] by way of a close working relationship of some kind (educational, occupational or recreational), given that there is no indication, based on what is known at this point, that he attempted to engage with minors outside of the teacher-student relationship.
…I have no information from any source indicating any concerns or allegations that [GM] engaged in sexually inappropriate behaviour with any of his children or other minor family members, recently or in the past. I also have no knowledge or any allegations or concerns about inappropriate interactions with minors on any other occasion over the course of his life. I have no basis for concern about offending against prepubescent or pubescent aged individuals and I have no basis for concern about offending against related minors of any age. [Emphasis added.]
[51] The trial judge described the presentation of the report as follows:
[103] Counsel for mother served notice of intention to file the report and the society did not seek to cross-examine on it. Counsel for mother did not seek to qualify Dr. Collaten as an expert in any particular field but the clear purpose in filing it in this court was to prove that the maternal uncle was not and is not a risk to this child.
[52] The trial judge was “very cautious” about Dr. Colleton’s report, because there was insufficient information about the doctor’s credentials and the science he applied in conducting the risk assessment. Dr. Colleton had “no experience in child protection assessments or family court generally”. As well, the report was prepared for a criminal court purpose and much of the report was based upon GM’s self-reporting. Since GM did not testify at the child protection trial, his self-reporting was hearsay and inadmissible for the truth of the contents.
[53] The trial judge exercised her gate keeping function and limited the use of the report. While what GM told Dr. Colleton was hearsay, the trial judge accepted that it was relevant for three reasons. First it was “information available to mother about the possible risks that her brother pose[d]”. Second, the timing of that information was also relevant. Third, “the mother appeared to draw conclusions as a result of reading this report.”
3. Timing of the Risk Finding
[54] The parties did not agree on the timing of the risk finding. The mother argued that a finding that a child is in need of protection requires that there be a present risk of harm at the time of the trial. This is because the language of s. 74(2)(d) is in the present tense. It requires a finding that there “is a risk” not that there was a risk.
[55] The mother relied on N.V.C., an appeal decision that overturned a child protection order made in the Ontario Court of Justice. In N.V.C., the Court stated 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.”
[56] The trial judge in this case noted that N.V.C. “may be distinguishable on its facts as N.V.C. dealt with one episode of intoxication [three years before the child protection trial] with a recommendation for a further child protection order.”
[57] The Society preferred the approach set out in a longstanding line of cases that follow the reasoning of Czutrin J. in Children’s Aid Society of Hamilton-Wentworth v. K.R. and C.W. [2001] O.J. No 5754 (SCO-Family Branch), and the trial judge agreed. As Czutrin J. stated at para. 50 of this decision:
I have come to the conclusion that the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date. This is consistent with the Act and certainly consistent with the Supreme Court of Canada decision [in Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M., supra].
analysis
Ground #1 – No evidence to support the protection order
[58] As noted, the first ground of appeal focuses on the alleged absence of evidence to support the finding that the child is in need of protection. This ground of appeal has two parts that are connected and will be considered together:
The trial judge erred in law because she found the child to be in need of protection when there was no expert evidence to support the finding.
It was a palpable and overriding error to find the child in need of protection based on the non-expert evidence that the trial judge relied upon. In doing so, the trial judge misapprehended the evidence.
[59] The parties agree that an expert report is not always required to prove that a child is in need of protection. They rely on a series of child protection decisions that deal with the risk of emotional harm. In these cases, the courts have found that an expert report is usually required to support a finding that the child is in need of protection, but it is not a mandatory requirement (Children's Aid Society of Ottawa v. K. (S.), 2015 ONSC 4623; N.V.C. at paras. 90-95).
[60] Counsel did not provide any cases where a child protection order was made without an expert report and the risk was sexual abuse or sexual exploitation. However, like the risk of emotional harm, the parties agree that an expert report is not mandatory, though generally required to prove the risk.
[61] If an expert report is not a mandatory requirement, how can it be that the trial judge erred in law when she made the protection finding without expert evidence? The mother states that the judge did err in law because she argues that there was no evidence to support the risk of protection.
[62] The mother argues that most cases need expert evidence to prove the need for protection and this was such a case. This is because GM’s victims were 17 year old girls and there was no evidence that GM had ever engaged in sexually inappropriate behaviour with pre-pubescent children or with boys.
[63] Further, the mother argues that the need for an expert report in this case was even more obvious. This is because the trial judge had essentially rejected Dr. Colleton’s opinion. His opinion was that the “future risk would be considerably narrow in terms of potential victims, given the nature and circumstances of the alleged offending. It would likely occur with sexually mature females in their late teens (i.e. not pre-pubescent or pubescent individuals).” The trial judge was not prepared to rely on this report for the reasons noted above.
[64] The trial judge, in her role as the gatekeeper, was entitled to reject the opinion of Dr. Colleton based on her reasons articulated. If, as the mother argues, the trial judge was left with no evidence to support the protection order, then this would be an error of law. That is not what happened.
[65] The trial judge reviewed the evidence and articulated the facts that she relied upon. She correctly followed the statutory path that governs child protection applications and applied the facts. As stated in Housen, when looking at the application of the correct legal principle to the evidence, the standard of review is palpable and overriding error. The same applies to the mother’s argument that the trial judge misapprehended the evidence.
[66] Therefore, the question is whether it was a palpable and overriding error to issue the protection order based on the facts that the trial judge articulated.
[67] The mother argues that GM has never sexually abused or sexually exploited pre-pubescent children or boys of any age, and so there cannot be an evidentiary basis for the risk. This is a narrow focus that ignores the broad scope of the evidence that created the risk. As the trial judge explained, the risk arose from GM’s conduct; that he was secretive, showed extremely poor judgment, abused his position of trust and authority, lured and groomed his victims for his own sexual gratification, together with the mother’s failure to assess and appreciate the risk that GM’s conduct created.
[68] Further, as the Society intake worker explained, in the absence of a thorough clinical assessment pertaining to GM’s sexual preferences, the Society could not assume that a five year old male child was risk free due to his age and gender.
[69] When the trial judge assessed the three elements of the test (in para. 27 above), she described the evidence that she accepted to support her findings. The trial judge relied on the transcript of the bail hearing, which included descriptions of pornography involving minor girls in which there was a picture of GM with a child mixed in with the pornography. She relied on his pattern of luring, exploiting and assaulting female minors. The trial judge made findings of fact that GM was secretive, showed extremely poor judgment, abused his position of trust and authority and lured and groomed his victims for his own sexual gratification.
[70] The evidentiary support for the protection order also included the mother’s failure to assess and appreciate the risk that GM presented, as described above. It is understandable that the mother was shocked, arguably in a state of disbelief at GM’s first bail hearing, and wanted to help her brother. However, after the second bail hearing the graphic evidence of GM’s conduct was there for her to see and appreciate. Yet the mother agreed again to act as GM’s surety and allow GM to live in her home with the child.
[71] The trial judge reasonably found that the mother’s continued support, willingness to act as GM’s surety, and have him live in her home showed a "lack of insight into the criminal and moral wrongdoing of her brother”, and made it unlikely that she would be able to protect her child due to her refusal to see GM as a risk.
[72] The trial judge did not misapprehend the mother’s evidence. The judge appreciated that the mother never left the child alone while GM lived with them, and that she eventually agreed that GM would never live with them again. However, this did not change the fact that the mother repeatedly prioritized GM's needs over that of her child, and the “lack of insight” that the trial judge described.
[73] During the process of the bail hearings, the Society asked the mother to speak with her family about who else her brother could live with. There was sufficient evidence for the trial judge to conclude that the mother did not have a family meeting or discuss whether someone else could act as GM's surety as the Society requested. The Society made this request on December 1, 2017. The mother met with GM's lawyer the night before the bail hearing on December 4, 2017, when she agreed to continue as her brother's surety. The evidence of GM’s own mother was that she was never asked to be the surety for her son.
[74] The mother was asked under cross-examination whether she would allow GM to live with her after he was released from jail. She said no. The reason given was not to protect her child or because of any associated risk, but because of her unpleasant experience with the Society. The mother also testified that she was prepared to offer her brother a job upon his release. This was further evidence of the mother’s alliance with her brother.
[75] The mother has not demonstrated that the trial judge made a palpable and overriding error. A palpable and overriding error is one that is clearly wrong. The trial judge’s finding that the child is in need of protection was not clearly wrong. There was a sufficient evidentiary foundation for the protection order. I dismiss this ground of appeal.
Ground #2 – Rejection of Dr. Colleton’s Report
[76] I have reviewed above the trial judge’s reasons for rejecting Dr. Colleton’s opinion.
[77] On this appeal the mother argues that the trial judge did not provide her with procedural fairness. She explains that the report was filed on consent and the trial judge did not give counsel an opportunity to respond to the problems that led the trial judge to attach virtually no weight to the report.
[78] If there were discussions about the use of Dr. Colleton’s report at the Trial Management Conference, nothing was recorded in an endorsement and there is no transcript of the conference.
[79] When Society counsel told the trial judge that the expert report was being entered on consent, neither counsel explained what this “consent” entailed and the trial judge made no inquiries. If mother’s counsel misunderstood the Society’s consent, it was obvious as the trial progressed that the question of the weight to be attached to the report was a live issue.
[80] The mother cannot argue that she was taken by surprise by the trial judge’s reasons for placing minimal weight on this report. The mother seems to suggest that she thought the Society was accepting the report, without any issue as to the weight that would be attached to the opinion. The Society caseworker and supervisor testified and were asked about this report. They both observed that Dr. Colleton’s report records GM’s sexual preferences based on his self-reporting. The caseworker did not agree that the report was a clinical assessment of GM’s sexual preferences. During closing submissions, the Society made extensive submissions on why the trial judge should not place any weight on Dr. Colleton’s report. The mother had an opportunity to respond in her closing submissions.
[81] The trial judge weighed the evidence of Dr. Colleton as she is required to do. She accepted the Society’s submissions and in the end attached minimal weight to the report.
[82] For these reasons, I reject this ground of appeal.
Ground #3 – The Timing of the Risk
[83] The third ground of appeal focuses on the timing of the risk finding. The mother states that the trial judge erred because her finding was based on a “retroactive reading” of the section; that a child can be found in need of protection if he was a risk in the past but is not at risk at the time of the order. Specifically, the mother states that the trial judge erred in law in rejecting the N.V.C. approach in favour of the flexible approach.
[84] As previously explained, this ground of appeal flows from the decision in N.V.C. where the Court rejected the long standing line of cases that favour the flexible approach articulated by Czutrin J. in Children’s Aid Society of Hamilton-Wentworth v. K.R. and C.W. As Czutrin J. stated at para. 50: “the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date”.
[85] The flexible approach allows the court to consider if the child is in need of protection at the start of the proceeding, the hearing date, or some other date. In contrast the N.V.C. approach requires the risk of harm to exist as of the hearing date, failing which there cannot be a protection order.
[86] N.V.C. was an appeal of a child protection order. It dealt with the risk of physical harm under s. 37(2)(b) of what was then the Child and Family Services Act. The wording of that section dealt with a child that “is” in need of protection and that “is likely to suffer physical harm”. The same present tense language is used in s. 74(2) of the CYFSA.
[87] N.V.C. states that the judge may consider any relevant evidence, regardless of whether the evidence is rooted in the past or present. However, to find a child in need of protection, N.V.C. states that the risk of harm must exist at the time of the hearing. The Court based this on the plain wording of statute and the use of the present tense.
[88] At the trial level in the Ontario Court of Justice, concern has been expressed with the N.V.C. approach. It has been described as “rigid”, not child focused, and contrary to the purpose of the governing Act (Child and Family Services Act now the CYFSA). As a result, courts have rejected N.V.C. in favour of the long standing flexible approach (Children’s Aid Society of Toronto v. S.A., 2017 ONCJ 366, at paras.13-25; Children’s Aid Society of Toronto v. S.M.T., 2018 ONCJ 540, at paras. 48-53; Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, at paras. 125- 129).
[89] The trial judge in this case considered and rejected N.V.C., and did so for the same reasons articulated in the three Children’s Aid Society of Toronto decisions noted above. The mother states that this was an error in law.
[90] I do not accept that the trial judge’s decision to reject N.V.C. was an error in law. With respect to the Court in N.V.C., the N.V.C approach is contrary to the paramount purpose of the CYFSA as set out in s. 1, to “promote the best interests, protection and well-being of children” and the direction of the Supreme Court of Canada set out below.
[91] The CYFSA is remedial legislation and should be interpreted broadly with a view to achieving the purpose of this Act. The N.V.C. approach does not follow this direction.
[92] In C.A.S. of London and Middlesex v. T.Y., 2017 ONSC 3460, at para. 94, the court explained why the rigid approach is problematic, adopting Thibideau J.’s comments in Children's Aid Society of Brant v. J.A.T., 2005 ONCJ 302, at para 24:
The more rigid approach reduces the hearing process to a judicial game with formal and rigid rules regardless of outcome and policy considerations. The flexible approach focuses on the best outcome for the child within an evidentiary framework that fosters use of evidence for an appropriate outcome.
[93] The type of risk that can lead to a child protection order is set out in s. 74(2) of the CYFSA. It was also defined in the predecessor Act. It is obvious from the legislation that “risk” can be caused by a variety of different circumstances and conduct.
[94] In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.
[95] If the risk is not present on the day of the hearing, the N.V.C. approach would require the court to refuse a request for a protection order. Such a rigid approach could place the child at risk. Of course, this depends on the circumstances and the type of risk that caused the Society to commence protection proceedings.
[96] As Czutrin J. explained, the flexible approach follows the Supreme Court of Canada’s direction in Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 SCR 165. Speaking about child protection matters, Justice L'Heureux‑Dubé stated, at p. 195:
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.
[97] In this case the trial judge carefully articulated the risk and her reasons for rejecting the N.V.C. approach in favour of the long standing flexible approach. The risk that she found is set out as follows:
[119] I find there was risk of sexual harm at the beginning of this application:
• The maternal uncle was a sexual predator living in the child’s home.
• Mother was asked and refused to consider another surety for her brother to live with.
• Mother did not believe the allegations
• Without the bail conditions relating to D, there was no restriction on maternal uncle’s access to him
[120] In January, 2018, mother was opposed to any restrictions on maternal uncle’s access to D. She then appealed the entire temporary order, while at the same time had the house arrest bail term changed to maternal grandmother’s home. Although mother was stating that she was voluntarily not permitting any unsupervised access by maternal uncle to D, she was also very clear that to her these were boundary issues and she didn’t believe all the allegations. In my view, mother could not be trusted to supervise the access of the maternal uncle to her son. I find that there was continued risk throughout this period of time.
[121] Thirdly, the court finds that at the time of the maternal uncle’s conviction and sentencing on August 24, 2018, there continued to be a risk of sexual harm or exploitation as mother persisted in not believing any risk existed. She could see the report of maternal uncle’s psychiatric consultation and the description of the low to moderate risk even with treatment. The self-reporting actually indicated he was viewing online porn in her home and using marijuana regularly, which reduced the “stigma” for him of abusing his young and vulnerable female students. Mother wrote a letter to support her brother who ultimately received a sentence of 33 months in custody. The letter offers him employment on his release. His release to day parole could be as early as 5 months after sentencing, or six months before full parole is available. Full parole is possible after one third of the custodial sentence has been served, which is eleven months into a thirty three month sentence.
[98] At the time of trial, GM was incarcerated, and had not lived with the mother and child since January 2018. As well, the mother had stated that she would not allow him to return and live with her. Arguably, at the time of the trial the risk was under control and not present. This is why the Society did not request a disposition order pursuant to s. 101 of the CYFSA. This outcome shows that the flexible approach is consistent with the structure of the child protection hearing. Specifically, a stand-alone protection order can be made under s. 74(2) of the CYFSA without making a disposition order under s. 101(1).
[99] In summary, the trial judge’s decision not to follow N.V.C. was not an error in law. This ground of appeal is dismissed.
Conclusion
[100] The appeal is dismissed.
[101] If the parties cannot agree on the costs of this appeal, they shall exchange brief written submissions and file them with the court by May 6, 2019.
___________________________ C. Horkins J.
Released: April 10, 2019
COURT FILE NO.: FS-18-00006009
DATE: 2019-04-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto
Applicant/Respondent on Appeal
– and –
RM
Respondent/Appellant on Appeal
REASONS FOR JUDGMENT
C. Horkins J.
Released: April 10, 2019