WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.—(3) Idem.— A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: Cochrane File# 26-18 DATE: 2019-02-08
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NORTH EASTERN ONTARIO FAMILY AND CHILDREN’S SERVICES Applicant/Respondent on Appeal
– and –
M. H. Respondent/Appellant
COUNSEL: D. De Grace, for the Applicant/Respondent on Appeal J. Ellery, for the Respondent/Appellant
HEARD: January 7, 2019
REASONS FOR DECISION ON APPEAL
WILCOX, J.
INTRODUCTION
[1] The final order dated May 31, 2018 of Justice David A. Thomas made J.B., a crown ward pursuant to s. 57(1)(3) of the Child and Family Services Act (CFSA or the Act) and denied the appellant father, M.H., access.
[2] On appeal, M.H. sought access but did not challenge the finding of crown wardship. He was represented at trial, but had different counsel for the appeal. The mother, M.B., also had counsel at trial. She observed, but took no part in, this appeal.
[3] For the reasons that follow, the appeal is dismissed.
BACKGROUND
[4] The trial judge noted that there was no significant contest at trial as to the facts. Also, counsel on appeal did not take issue with the trial judge’s findings of fact, as set out in his reasons for judgment of May 31, 2018. I will not repeat them here, except in a summary fashion to facilitate understanding.
[5] J.B. was born on [...], 2015. She is the natural child of M.H. and M.B. who cohabited for a time, but had separated by the time of trial. J.B. had been in the care and custody of the North Eastern Ontario Family and Children’s Services (NEOFACS, or the society) since birth, subject to her parents’ supervised access.
[6] M.H., who was age 31 at the time of the trial, had been, since age 18, on Ontario Disability Support Program (ODSP) benefits for mild intellectual delay and oppositional defiant disorder.
[7] S.B. is J.B.’s maternal grandmother.
[8] V. B-M., born in 2009, is M.B.’s son from a previous relationship. He had resided with her and M.H., but had been removed from their home by NEOFACS in 2013 due to child protection concerns. He was placed in the care of his grandmother, S.B., who obtained formal custody of him, where he remains.
[9] A final order finding J.B. to be a child in need of protection pursuant to s. 37(2)(b)(i)[^1] of the Child and Family Services Act (CFSA)[^2] was made on consent and on an agreed statement of facts on May 1, 2017, by Lambert J.
[10] The matter proceeded to trial on the issue of whether J.B. should be made a crown ward. NEOFACS sought to have her made a crown ward without access to her parents, but with access to S.B. and V. B-M.
[11] M.H. sought to have J.B. placed in his care. Alternatively, if she was made a crown ward, he sought access to her.
[12] M.B. supported M.H.’s position. In the event of crown wardship, she, too, sought access to J. B.
[13] It was noted that J.B.’s foster family who hoped to adopt her had a clear preference that the court not grant access to the parents.
DECISION AT TRIAL
[14] The trial judge found that J.B. remained a child in need of protection and made her a crown ward pursuant to s. 57(1)(3) of the CFSA.
[15] Paragraph two of the order then stated:
The child (J.B.), born (__), 2015, the “access holder”, is granted a right of access to her maternal grandmother, (S.B.) and brother, (V. B-M.), the “access recipients” to be exercised at the discretion of the society, and as determined by her guardians to be in her best interests, in order to ensure no direct or indirect contact with the respondent parents.
THE NOTICE OF APPEAL
[16] The Notice of Appeal did not challenge the finding of crown wardship. However, with respect to access, it sought:
a. a final order granting the child, (J.B.), born (__), 2015, the “access holder” a right of access to her maternal grandmother (S.B.), brother, (V. B-M.) and her father, (M.H.), the “access recipients”, to be exercised at the discretion of the society and as determined by her guardians to be in her best interests (access itself being subject to review by a court of competent jurisdiction), in order to ensure no direct or indirect contact with the respondent mother (M.B.)
THE STANDARD OF REVIEW
[17] The applicable standard of review is set out in Czuterin J. in Catholic Children’s Aid Society of Toronto v. N.A.[^3]:
The appellate standard of review in cases such as this is well established. The standard of review for questions of law is correctness. The "appellate court is free to replace the opinion of the trial judge with its own": Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. The standard of review for questions of fact is palpable and overriding error; "palpable" means "readily or plainly seen": Housen, at para.5.
In the context of child protection 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": Children's Aid Society of Toronto v. C. (S.A.), 2005 43289 (Ont. S.C.), at para. 12, aff’d 2007 ONCA 474, 158 A.C. W.S. (3d) 610; see also New Brunswick (Minister of Health and Community Services) v. C. (G.C.), 1988 34 (SCC), [1988] 1 S.C.R. 1073, at p. 1077.
[18] The last mentioned case had been followed in Children’s Aid Society of Toronto v. P.L.[^4] where the Ontario Court of Appeal stated at para. 16:
- Second, the degree of deference owed to the trial judge is particularly high in child protection proceedings. In C. (G.C.) v. N. B. (Min. of Health & Community Services), 1988 34 (SCC), [1988] 1 S.C.R. 1073, at para. 5, the Supreme Court described the standard of review applicable in such cases as "...trial judges' decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment."
[19] An appeal court is not entitled to intervene simply because it would have made a different decision or balanced the factors differently.[^5]
LAW
[20] Section 59(2.1) of the CFSA provides:
A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child’s future opportunities for adoption. 2006, c. 5, s. 17 (2).
[21] The Act creates a presumption against access. There is an evidentiary onus on the person seeking access to prove on a balance of probabilities both prongs of the test. The test is conjunctive.
THE APPELLANT’S POSITION
[22] As indicated, the trial judge noted that there was little controversy at trial about the facts. On the appeal, the appellant’s counsel did not take issue with the trial judge’s findings of fact, nor with his statements of the law.
[23] However, the appellant’s position was that the trial judge erred in not finding on the facts that the legal test had been met for M.H. to have access to J.B.
[24] Appellant’s counsel submitted correctly that this is not a re-hearing were I can substitute my own decision for that of the trial judge. Rather it is for me to consider whether the trial decision is correct.
ANALYSIS
[25] At trial, the trial judge heard from ten witnesses. Each parent had their own counsel.
[26] It was uncontroverted at the appeal that the trial was not a bifurcated one dealing first with crown wardship, then with access. Rather, there was no separate part of the trial just about access.
[27] The trial judge noted in his reasons the positive evidence with respect to M.H., as follows:
a. He was more consistent than M.B. in attending access visits. b. He would usually be on time for access visits. c. He was proud of J.B. d. He was excited to see J.B. e. He took his opportunities for access seriously, striving to put his best foot forward. f. He always tried. g. He had genuine love and affection for J.B.
[28] There was also evidence noted that was negative with respect to M.H.:
a. He had been diagnosed years before with mild intellectual delay and oppositional defiant disorder. That diagnosis had not changed. b. The parents’ residence, when they had V. B-M. living with them before his apprehension, was unsanitary, unsafe and unacceptable, and there was obvious inattention to their own person hygiene and cleanliness. c. The parents failed to attenuate the child protection risks in their home between V. B-M.’s removal on August 18, 2013 and J.B.’s birth on [...], 2015, even knowing their significance. d. There was no edible food in the parents’ fridge. e. The parents did not avail themselves of available programing, and failed to follow through on the programming they did attend. f. During access, NEOFACS workers had to continuously instruct M.H. on how to take care of J. B., and did not think he could learn parenting techniques. g. During the access the parents would focus on their issues with each other or NEOFACS, and essentially ignore J.B. h. J.B. would look for the access supervisor and have to be taken back to visit M.H. i. M.H. was resistant to instructions. j. M.H. lacked awareness of basic parenting safety precautions. k. The access supervisor feared for J.B.’s safety throughout M.H.’s access to the degree that the supervisor could not also attend to the task of completing access evaluation checklists as would usually be done during access visits. l. J. B. was content to play by herself during access time. m. Despite NEOFACS’s effort to accommodate M.H., there had been little, if any, progress in addressing the concerns regarding his parenting capacity.
[29] Having considered the evidence, the trial judge found it to be in J.B.’s best interests to order crown wardship. He then turned to the consideration of access, noting NEOFACS’s request that there be access to V. B-M. and S.B., but not to either parent, although the parents wanted access. He noted that the CFSA had a presumption against access unless the s. 59(2.1) test was satisfied, and he reviewed the law with respect to it. In particular, he quoted the following from Catholic Children’s Aid Society of Hamilton v. M.A.[^6]:
With respect to the first branch of the test, the focus is on the importance of the relationship from the child’s perspective. Quinn, J. outlined a number of important principles relating to the test in Children’s Aid Society of Niagara Region v. J.(M). 2004 2667 (ON SC), 2004 CarswellOnt 2800 (Ont. S.C.). He held that a beneficial relationship is one that is “advantageous,” and a meaningful relationship is one that is “significant.” He concluded that the existence of some positive aspects in the relationship between a child and a parent is not sufficient to meet the first part of the test in section 59(2.1); rather, it must be shown that the relationship is significantly advantageous to the child. … Further, he held that the focus of the inquiry is the nature of the current relationship between the child and the party in question, and not on how that relationship may unfold in the future. Finally, he concluded that even if the parent proves that the relationship is beneficial and meaningful, the court must still weigh the overall benefits of access to the child as opposed to no access before making a decision on the access issue.
He then concluded that “it is impossible to conceive how (J.B.’s) continued relationship with (the parents) could ever be advantageous” and that the parents had “not been able to demonstrate that continued access with J. B. could be beneficial and meaningful to her”. The first branch of the s. 59(2.1) test having not been satisfied by them, the trial judge declined access for either parent.
[30] With respect to the second branch of the test, that access will not impair the child’s future opportunities for adoption, I have reviewed the transcripts of M.H.’s evidence at trial and his trial counsel’s submissions and see no evidence nor argument on the second branch. Indeed, on appeal, NEOFACS’s counsel confirmed that, at trial, there was no such evidence or submissions. Counsel for M.H. on appeal stated that M.H.’s focus at trial was not on access. Therefore, even if the first branch of the test had been satisfied, there was nothing on which the trial judge could have found that the second branch was satisfied.
[31] It seems to me that, if the trial judge was correct on the facts and law, as the appellant’s counsel acknowledged he was, he was entitled to make the decision that he did, and that I am being asked to substitute for his my own decision and a more favourable one for the appellant M.H.
[32] Considering the standard of review, the trial judge is owed a high degree of deference. I do not find that he erred. He was entitled to conclude as he did. Therefore, the appeal is dismissed.
The Honourable Justice James A. S. Wilcox
Released: February 8th, 2019
COURT FILE NO.: Cochrane File# 26-18 DATE: 20190208
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NORTH EASTERN ONTARIO FAMILY AND CHILDREN’S SERVICES Applicant/Respondent on Appeal
– and –
M. H. Respondent/Appellant
REASONS FOR decision on appeal
WILCOX, J
Released: February 8th, 2019
[^1]: Section 37(2)(b)(i) of the CFSA indicates that a child is in need of protection where there is a risk that the child is likely to suffer 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.
[^2]: The CFSA was repealed on April 30, 2018. The trial judge acknowledged this as follows: The court should note that the new legislation governing proceedings such as this, The Child, Youth and Family Services Act, came into force on April 30, 2018. In so far as the evidence was completed and submissions received well in advance of that date, …, and there are no issues that would attract the application of the transitional provisions, these proceedings are accordingly governed by the former Child and Family Services Act, which I will hereinafter referred (sic) to as the Act.
[^3]: [2014] O.J. No. 123, at paras. 34 and 35.
[^4]: 2012 ONCA 890, [2012] O.J. No. 6009
[^5]: D.D. v. Children’s Aid Society of Toronto [2015] O.J. No. 6816, 2015 ONCA 903 at paras. 27-30.
[^6]: 2012 ONSC 267, [2012] O.J. No. 223 (Ont. S.C.), at paras. 24 to 25