Court File and Parties

Court File No.: 19-307 AP Date: 2020-03-24 Superior Court of Justice – Ontario

Between:

D.R. and C.L., Appellants

Counsel for Appellants: Gerald Punnett, for D.R. David Cameletti, for C.L.

And:

Family & Children’s Services of Guelph and Wellington Country, Respondent Office of the Children’s Lawyer, Respondent

Counsel for Respondents: A. Circelli, for F&CS C. Torry, for the Children K.R., S.R. and C.R.

Heard: February 13, 2020

Reasons for Judgment Petersen J.

Overview

[1] This is an appeal from the decision of Justice Neill dated June 7, 2019, which contains orders made pursuant to the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”).

[2] The Appellant, DR, is the father of the children affected by the orders. He has two daughters, KR and SR, and a son, CR. The eldest child, KR, is now 14 years old. SR is 12 years old and CR is 11 years old. The other Appellant, CL, is DR’s mother and the children’s paternal grandmother.

[3] The children have been in the care of the Respondent, Family and Children’s Services of Guelph and Wellington Country (“F&CS”), since February 9, 2016. They have had periods of both supervised and unsupervised access with their grandmother, but the last visit was in October 2018. The eldest child, KR, has not visited her grandmother since June 2018. The children have had only two supervised visits with their father since June 2015. Those visits occurred in May and June 2018.

[4] The trial judge ordered that the children be placed in the extended care of F&CS. She barred all access between the father and KR and SR, and granted extremely limited access to CR, subject to CR’s wishes. She also granted limited supervised access between the grandmother and the children, subject to their wishes. She made the children the holders of the access rights.

[5] The trial judge’s order placing the children in extended care is not at issue in this appeal. The access orders are the subject of the appeal. The Appellants wish to be made holders of access rights and are seeking more liberal access to the children than what was granted at trial. They are also seeking a stay of any adoption proceedings. Their goal is to reunite the family in the future, after completion of reunification therapy, which they ask the court to order as relief in this appeal.

[6] The Respondents argue that the trial judge’s decision should be upheld.

[7] For the reasons set out below, the appeal is dismissed.

Chronology of Background Facts

[8] The children first came to the attention of F&CS when their mother died in September 2009. After her death, they were voluntarily admitted into the care of F&CS pursuant to a temporary three-month agreement because of concerns about the father’s ability to care for them during this grieving period.

[9] The children returned to their father’s care and resided with him until late June 2015. At that time, KR reported to the police that her father sneaks into her bed at night, crawls under the covers and licks her vagina “like an ice cream cone”. She said she did not like it and asked him to stop several times. This disclosure was made in the context of an investigation prompted by another incident involving an unrelated child named KM. Around that time, SR also disclosed that her father had touched her breasts. CR did not report any allegations of sexual abuse, but he believed the allegations against his father and supported his sisters.

[10] On June 26, 2015, DR was arrested and charged with sexual assault and sexual interference in respect of KR. At this time, he was not charged in connection with SR’s allegation. He was released from custody with bail conditions that prevented him from having any direct or indirect contact with his children. The children commenced residing with their paternal grandmother (the Appellant CL) from the time of their father’s arrest.

F&CS Initial Protection Application

[11] On January 5, 2016, F&CS commenced a Protection Application in respect of the children. F&CS was experiencing challenges dealing with the grandmother and requested an interim order that the children’s placement with the grandmother be subject to F&CS supervision.

[12] On February 9, 2016, Caspers J., on her own initiative, made a temporary without prejudice order that the children be placed in the care of F&CS. Although she had no concern about the children’s physical well-being while in their grandmother’s care, she expressed concern about their emotional well-being. The grandmother was convinced of her son’s innocence. In those circumstances, Caspers J. found that leaving the children in their grandmother’s care would put them in a compromised position because their traumatic accounts of sexual abuse were not believed by their primary caregiver.

[13] Pursuant to the court order, on February 9, 2016, the children were apprehended and placed into foster care on a temporary basis. A few months later, in May 2016, SR (the middle child) disclosed to their foster mother that her father had touched her “privates”. She made the disclosure spontaneously while discussing her school’s Child Abuse Awareness Week and in response to a question about the difference between “good touch” and “bad touch”. The foster mother reported the disclosure to F&CS. The matter was referred to the police. SR subsequently provided details to the police about her father touching her vagina on two occasions when she was about seven years old. DR was then charged with additional sexual offences relating to SR.

[14] The children received counseling while in foster care. KR and SR attended counseling (twelve sessions each) with Sheri Ongena, a Child and Adolescent Clinician with the Canadian Mental Health Association (“CMHA”), from June 2016 through January 2017. CR attended nine play-therapy sessions with a counsellor named Donna Sterling between June and October 2016. The therapy for CR focused on his emotional dysregulation, grief regarding the death of his mother and disruption of his family unit.

[15] The children had supervised visits with their grandmother. The visits were generally positive, but the girls expressed mixed feelings about their grandmother to their therapist based on the fact that their grandmother did not believe their sexual abuse stories. F&CS addressed this concern with the grandmother on numerous occasions. In June 2016, the grandmother shifted her approach to the children and agreed not to discuss the criminal charges or allegations of sexual abuse with them. The visits then became consistently more positive.

[16] The visits were supervised by F&CS up until December 2016, then became unsupervised. However, supervision resumed after an incident on March 8, 2017. During a visit, the children’s uncle attended at the grandmother’s home. KR did not feel comfortable around this uncle and wanted him to leave. The children disclosed to F&CS that their grandmother advised them to keep their uncle’s presence during the visit a “secret” from F&CS. The grandmother acknowledged this error in judgment and conceded that it was wrong to tell them to keep it a secret. Given their history, it was particularly important for them to be able to speak openly about their fears. After this incident, the children requested that future visits with their grandmother be supervised.

[17] Both KR and SR underwent a trauma assessment in May 2017. It was conducted by Anita Diebel, a counselor with thirty years of experience in the assessment and treatment of child sexual abuse. While waiting to meet Ms. Diebel for the assessment, SR asked her foster mother whether she could get pregnant from what happened to her by her dad.

[18] Beginning in the fall of 2017, all three children commenced counseling with Ms. Diebel. They attended multiple sessions together and individually.

Criminal Proceedings and F&CS Verification

[19] DR was tried and acquitted of the charges pertaining to KR in September 2016.

[20] In June 2017, in anticipation of the trial with respect to the charges pertaining to SR, SR met with the Crown and Officer in Charge to prepare. During that meeting, SR reiterated the disclosures she made earlier and also reported a new incident of sexual abuse. She reported an occasion when she was in the bathtub with her father and he inserted his penis half-way into her vagina.

[21] DR was tried and acquitted of the charges pertaining to SR in September 2017.

[22] Although DR was acquitted of all criminal charges, F&CS nevertheless verified the concerns of sexual abuse based on the results of the police investigation and disclosures that the children made to Ms. Diebel. The usual practice of F&CS is to conduct its investigation concurrent with the police investigation, but in this case, no F&CS worker was present when the police interviews were conducted. No explanation was provided to the Court for this anomaly. However, F&CS did explain why it did not conduct an independent investigation into the allegations of sexual abuse: it did not want to traumatize the children by re-interviewing them and putting them through a separate investigation.

[23] It is axiomatic in law, but is nevertheless worthy of note, that DR was acquitted of the criminal charges based on judicial findings that the Crown had not proven the alleged offences beyond a reasonable doubt. In contrast, F&CS verified the concerns of sexual abuse based on the civil standard of proof, namely the balance of probabilities. In other words, F&CS concluded that it was more likely than not that the sexual abuse occurred.

Final Protection Order

[24] On October 24, 2017, shortly after all the criminal proceedings had concluded, a final order was made, on consent, declaring all the children to be in need of protection pursuant to s. 37(2)(g) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (then in effect). Section 37(2)(g) provided that “a child is in need of protection where there is a risk that the child is likely to suffer emotional harm … 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.”

[25] The risk of emotional harm that the children faced in the care of either their father or their grandmother was founded on a Statement of Agreed Facts, which included the following:

a) The father steadfastly denies the allegations of sexual abuse; b) CR felt he needed to have a social worker present for a visit with his father because he was worried that his father might touch him inappropriately; c) The girls stated to their foster mother, to F&CS workers, to their counsellor Ms. Diebel and to a clinician appointed by the Office of the Children’s Lawyer (“OCL”) that their grandmother does not believe them and that they feel unsupported by their grandmother because she favours their father’s position; d) The girls also told the OCL clinician that they do not feel safe at their grandmother’s house without a social worker present; e) They told Ms. Diebel that they distrust their family members, including their grandmother; and f) Ms. Diebel cited a correlation between the children not being believed and the impact on their long-term mental health.

[26] After the final order was made declaring the children to be in need of protection, the children continued to have supervised access to their grandmother. There was no repetition of the incident where the grandmother asked them to keep a secret from F&CS. The grandmother followed F&CS recommendations and did not speak to the children about the court cases or the allegations against their father. However, she continued to disbelieve the allegations. As part of a plan to attempt to reunite the family, she met with Ms. Diebel in March 2018 and reviewed KR’s trauma summary. She stated to Ms. Diebel that she did not believe what KR said in the summary and expressed the view that KR was being influenced by social workers.

[27] At that time, the children’s visits with their grandmother were going very well. The children largely found the visits to be enjoyable and expressed positive feedback to the OCL clinician. By April 2018, all three children wanted the visits with their grandmother to be longer and wanted to have visits in the home, not just in the community. KR also wanted the visits to be more frequent. SR expressed a desire to live with her grandmother in their home. CR was also open to the idea of living with their grandmother but was equally open to the idea of placement for adoption.

[28] By April 2018, all three children were eager to see their father in a supervised setting. Almost three years had passed since they last saw him. Despite some mixed feelings and apprehension, they all expressed to the OCL clinician that they were ready and were looking forward to seeing him.

Interim Placement of Children Pending Status Review Application

[29] On April 9, 2018, another final order was made, on consent, continuing the placement of the children in F&CS care for four months, pending the trial of a Status Review Application by F&CS. The order provided for unsupervised access between the children and their grandmother at least twice per month for at least two hours. However, the grandmother was required to meet with Ms. Diebel to review SR’s trauma narrative before the visits commenced. The order contained a term providing for the grandmother’s access to become supervised at the request of any of the children or if there were any new reports of inappropriate conduct by the grandmother towards the children. The grandmother was ordered to refrain from all conversations relating to the children’s allegations about their father and plans pertaining to their future with her or their father.

[30] The April 9, 2018 consent order also provided for at least one clinically supervised one-hour visit between the children and their father in accordance with a Safety Plan. The children’s lawyer and counsellor were to be present. The order allowed for additional clinically supervised visits if the children requested them, with a target of visits once every three weeks. The purpose of these orders was to determine whether access could proceed therapeutically between the children and their father.

[31] The children had visits with their father on May 24 and June 19, 2018. KR experienced nightmares and bedwetting prior to the visits and displayed sexualized behaviour afterward. She expressed a strong desire to have no further contact with him.

[32] SR initially indicated that she was comfortable seeing her father with a social worker present, but not with only her grandmother present, as that would not feel safe. After two visits, she advised that she did not want to see her father again. She exhibited increased sexualized behaviour after the visits. She indicated that visiting her father caused her to feel stress and confusion. She said she found it positive not having to see him.

[33] CR did not exhibit negative consequences after the visits. He was glad to have the visits supervised because he did not want his father to say anything bad to him. The visits went well, but he continued to support his sisters and remained upset with his father because of their allegations of sexual abuse. After the second visit, he expressed his wish to maintain a relationship with his father but not have regular visits.

[34] Around this time, problems started to arise with respect to the grandmother’s visits. The visits had gone smoothly with all three children until mid-June 2018. Then, at the end of June 2018, SR refused to attend one of the scheduled visits. The previous visit two weeks earlier had gone fine, although SR had become upset when the visit was cut short because her foster mother had to take her to soccer practice.

[35] SR told an F&CS worker that the reason she did not want to attend the visit at the end of June 2018 was because she did not feel safe with her grandmother. She later (in early August 2018) told the OCL clinician that her feelings had changed because her grandmother had recently said, during a visit at the park, that “you have to ask for longer hours”. She explained that after this comment, she decided she did not really want to see her grandmother. She said she was not mad at her grandmother but did not want to be forced to see her every two weeks. She indicated to the OCL clinician that she would be open to monthly visits but would also be fine if the judge said there would be no more visits with her grandmother.

[36] During the June 2018 visit in which SR did not participate, the grandmother stated to the other two children that she did not understand why SR felt unsafe. SR opted out of the next visit in July 2018. During that visit, the grandmother sarcastically queried SR’s “excuse” for not participating, which made the two other children feel uncomfortable. CR stated that he did not like that his grandmother “talked behind SR’s back” and did not like being pressured to explain why SR was not at the visit.

[37] In August 2018, SR told the OCL clinician that “everything had changed” since her grandmother got upset because she did not want to go on a visit. She stated that once she was with her “forever family” (adoptive parents), she did not want to have anything more to do with her grandmother.

[38] After these occurrences in June and July 2018, F&CS only scheduled visits with the grandmother if the children wanted to attend. The visits became less frequent. SR resumed participation in the visits, but KR chose not to attend.

[39] KR did not wish to have any visits with her grandmother after July 2018. She acknowledged to the OCL clinician that she enjoyed visits with her grandmother when her grandmother was not being negative, but stated that her grandmother started saying negative things again in the summer of 2018. Her grandmother’s negativity upset her. She said she initially continued to attend visits in the summer only because she did not want her grandmother to be mad. She reported feeling scared and sad when she heard her grandmother use an “adult strict voice” because SR missed a visit. After that, she stopped going on the visits. She said seeing her grandmother stressed her out, but her stress symptoms went away after she decided to stop attending the visits. She told Ms. Diebel that she only wanted people in her life who believe her abuse story and support her.

[40] As a result of these developments, F&CS brought a motion to suspend the father’s access and to vary the grandmother’s access so that it would be at the discretion of F&CS and subject to the children’s wishes and preferences.

F&CS Motion to Vary Terms of Access

[41] Caspers J. heard the F&CS motion on September 11, 2018. She considered the evidence of the children’s counsellor, as well as the children’s expressed views and preferences (as relayed by the OCL clinician). She concluded that the girls would be at risk if they were required to participate in further mandatory or permissive visits with their father. She also found that the children did not feel safe with their grandmother.

[42] Caspers J. varied the April 9, 2018 final order by barring the father’s access to KR and SR until the trial of the Status Review Application. She ordered that CR could have three supervised visits with his father prior to the trial, subject to his wishes. She also ordered three supervised visits in the community between the children and their grandmother, subject to their wishes. Finally, she prohibited the father and the grandmother from discussing certain topics with the children during visits, including anything having to do with the allegations of sexual abuse.

[43] The children had no further visits with their father. SR and CR continued to visit their grandmother with F&CS supervision, but the visits ceased after an incident on October 11, 2018. The incident involved an angry confrontation between the grandmother and a F&CS worker.

Final Visit in October 2018

[44] Prior to the grandmother’s last access visit with SR and CR on October 11, 2018, CR told his F&CS social worker that he wanted to share some “big feelings” with his grandmother during the visit. He explained that he wanted his grandmother “to say that his sisters are telling the truth and that his dad will get help for what he did and that she is sorry.” He said he was confident that his grandmother would not say those things, but that he would still feel better having the conversation. SR was asked how she felt about CR talking to their grandmother about these things. She indicated that she was fine but asked what she could do if she needed a break during the visit. The children were told that two social workers would attend the visit and that either of them could go for a walk with one of the workers if they needed a break.

[45] The grandmother was advised prior to the visit that CR wanted to talk to her about his feelings. She was not advised that two social workers would be attending the visit. There was contradictory evidence at trial about what exactly transpired during this visit. It was, however, undisputed that an argument ensued between the grandmother and one of the F&CS workers in CR’s presence, during which the grandmother stated, “Fuck I hate you” to the worker. Both SR and CR overheard the profanity. CR became upset and left the park with one of the workers. He later returned to the park after learning that his aunt and cousins had arrived, but he did not interact with his grandmother.

[46] During this incident, CR expressed frustration to the social worker that his grandmother is “always mad”, that “everyone knows” when she is angry, and that when she is like that, he finds it “scary”. At the end of the visit, SR advised the workers that she could tell her grandmother was still mad from her facial expression and body language.

[47] After this incident, both children advised F&CS that they no longer wanted to attend visits with their grandmother. In November 2018, SR clarified that she would be fine with having a right to see her grandmother, but only if she wanted and if it was supervised. CR stated that he only wanted to see his grandmother if she was less angry and if she believed his sisters.

[48] No further visits have been scheduled with the grandmother since October 2018. As set out above, KR’s last visit with the grandmother occurred in July 2018.

Shift in the Children’s Expressed Views About Their Father

[49] It should be noted that at the time of the father’s arrest in June 2015, the children missed him and wanted to live with him, or at least have access to him. Their views evolved over time while they were in the care of F&CS. When their first therapist started working with them, they had mixed feelings about ongoing contact with him. They loved him, had good memories of him, and wanted him in their life, but they felt sad about his behaviour and wanted him to admit the abuse and start talking about it so that he could get help. By April 2018, all three children were looking forward to seeing their father in a supervised setting, but by August 2018 (after two clinically supervised visits with their father), the two girls no longer wanted any contact with him. CR still wanted to see his father, but only in the community and with supervision.

[50] By the time the Status Review Application went to trial in November 2018, all three children were expressing the view that they wished to be put up for adoption. Both girls were clear that they wanted no further contact with their father. CR stated that he did not want to see his father but might want to see him in the future. CR also indicated a willingness to maintain limited contact with his father through cards and letters.

Trial of Status Review Application

[51] The Status Review Application proceeded to trial in November 2018. The grandmother put forth a plan to have the children returned to her care. The father did not seek the return of the children to his care and did not seek a right of immediate access to visit them. He supported the grandmother’s plan to have the children live with her. He also asked the court to order reunification therapy between himself and the children with the goal of having access to the children at some point in the future.

[52] At trial, F&CS advocated for the children to remain in extended F&CS care with no access between them and their father. F&CS supported ongoing access with their grandmother in accordance with the wishes of the children and the plan proposed by the OCL. The OCL supported an order of extended F&CS care, with SR and CR having access to their grandmother in the community on alternate months for a minimum of two hours, subject to their wishes, and KR having a right of access to the grandmother subject to her wishes. The OCL sought an order that there be no access between the daughters and their father, but that CR have a right of access to his father once per year subject to his wishes.

[53] The trial proceeded before Neill J. on November 26-30, 2018 and January 15, 2019. Neill J. issued her Reasons for Judgment on June 7, 2019. It is that judgment which is the subject of the appeal before me.

The Judgment Below

[54] The veracity of the sexual assault allegations made by KR and SR was not at issue in the trial of the Status Review Application. Rather, the issues were: (1) whether the children continued to be in need of protection; and (2) what dispositional order was in their best interests. By the time the Application was heard in November 2018, the CYFSA had come into effect and the issues therefore had to be determined pursuant to that legislation.

[55] In Children’s Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371, at para. 43, this court summarized the test to be applied on a Status Review Application as follows:

a. In a Status Review Hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made. b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection. c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or from circumstances which have arisen since then. (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165) d. Secondly, the court must consider the best interests of the child. e. The analysis must be conducted from the child's perspective.

[56] The trial judge followed this analytical framework in her judgment. In assessing whether the risk concern that formed the basis of the original protection order still existed, she ruled that evidence of historical sexual abuse in the paternal family and denials of that abuse by the paternal family were relevant to the issue of whether the children were at risk of emotional harm. She reviewed evidence of intergenerational sexual abuse on the paternal side of the children’s family. There was evidence at trial that when the grandmother was twenty years old, she conceived a child as a result of a sexual assault. That child, SH, is now the adult paternal aunt of the children at issue in this proceeding. There was also evidence that the grandmother’s brother was convicted of sexually assaulting his niece. Finally, there was evidence that SH (the paternal aunt) had disclosed allegations as a child about sexual abuse by her father (the grandmother’s ex-husband), which she subsequently recanted.

[57] The trial judge noted that the grandmother did not engage in ongoing counseling for her own trauma. The grandmother met with the children’s counsellor, Ms. Diebel, on three occasions for counselling on how to deal with the children’s disclosures and the fact that the children did not trust her. At trial, Ms. Diebel expressed the opinion that the grandmother was dealing with intergenerational trauma and unresolved issues arising from her own sexual abuse. Ms. Diebel was of the view that the grandmother required extensive trauma work. The trial judge noted that the grandmother “disagrees with this assessment and did not have counselling regarding the intergenerational trauma.”

[58] The trial judge also noted that SH (the paternal aunt) defended her uncle and testified that she did not believe he molested his niece even though he was convicted. With respect to SH’s childhood disclosure of sexual abuse, the trial judge noted that SH was “very evasive” in her testimony about what had occurred, and that the grandmother testified that she did not believe her ex-husband abused SH.

[59] The trial judge reviewed in detail the evidence of KR’s and SR’s multiple disclosures of sexual abuse by their father. She also reviewed evidence of the father’s, grandmother’s and paternal aunt’s denials and disbelief of the children’s allegations. She summarized evidence about the children’s visits with their grandmother, the breakdown of their relationship with the grandmother, the two supervised visits they had with their father, and the counseling that they received over the years. She also reviewed Ms. Diebel’s testimony in detail. She took into consideration evidence of the children’s views and preferences as ascertained and conveyed by Ms. Diebel and the OCL clinician.

[60] The trial judge concluded, at para. 135, “It is clear that these children are in continuing need of protection.” At para. 38 of her judgment, she noted, “Sexual abuse and inappropriate boundaries are longstanding issues within the paternal side of the family.” She explained, “What places these children at risk of emotional harm in the grandmother’s care are the patterns of denial of these issues, the denial of the disclosures of KR and SR and the lack of support for the children from the paternal family.”

[61] Having concluded that the children continued to be in need of protection, the trial judge then reviewed the F&CS’s plan for extended care for the children and the grandmother’s proposed plan of care for the children. Among other findings, she held:

[144] … Due to the criminal charges and the father pleading not guilty, it is understandable that acknowledging that he believed the children’s disclosures would put him in a difficult position …

[145] The grandmother is not in the same position as the father. Any acknowledgment of the children’s disclosures would have no personal consequences for her, other than perhaps affecting her relationship with her son. She made a clear choice to support the father, as did all of the paternal relatives. Denial of sexual abuse is prevalent within the paternal side of the family. The children understand this, and understand that they are not believed or supported by their paternal relatives. A placement with the grandmother where they are not supported or believed would be extremely detrimental to their emotional well-being and place them at risk. The grandmother has not undertaken the required counselling to resolve the issues of intergenerational trauma or how to learn to support the children.

[146] The grandmother clearly will not place the children’s needs ahead of her own, particularly her emotional needs….

[149] The grandmother’s position is that the children should be returned to her care subject to conditions and she will abide by terms of supervision. However, historically there have been concerns with the grandmother’s ability to cooperate with the Society….. In almost three years the grandmother was unable to shift her thinking to enable to support the children emotionally and no supervision terms could be put in place to alleviate this risk.

[152] Although a placement with a relative is always preferred over a placement in Society care, it is clear that a placement with the grandmother is not emotionally healthy for the children, it is against their strongly stated views and wishes, and not in their best interest.

[62] The trial judge ordered that the children be placed in the extended care of F&CS. She then reviewed the statutory factors relevant to a determination of access to children in extended care, noting that the children’s best interests are the predominant consideration under the CYFSA. She explained that the legislation requires any access orders to specify who is an access holder and who is an access recipient, because only an access holder has the right to bring an openness application if F&CS decides to place a child for adoption.

[63] The trial judge found that it is in SR’s and CR’s best interests to have ongoing access with their grandmother, subject to their wishes. She ordered that they have a right of access to their grandmother every two months for two hours each visit, at a location to be determined by F&CS, subject to supervision at the discretion of F&CS, and on condition that the grandmother refrain from all conversations related to the children’s trauma stories and allegations about their father, unless otherwise directed by F&CS.

[64] The trial judge cited the following reasons for why SR and CR should hold the access rights and the grandmother should not be an access holder:

[178] … Of concern is the fact that the grandmother advised the children to keep a “secret” from the Society and told the children to ask for longer visits, which have been found to be attributes that could impair adoption. Further, it is clear that the grandmother has a negative attitude towards the Society, which has been expressed in the presence of the children. [The F&CS worker] was concerned that any contact between the children and their grandmother could affect an adoption placement if they could not give the children positive messages.

[65] The trial judge concluded that it is not in KR’s best interest to have an order for any type of access between her and her grandmother. She specified that even permissive access is not in KR’s best interests. She held that “KR appears to be the most affected by access with her grandmother, and in a negative way.” Among her reasons for this conclusion, the trial judge cited the fact that KR experienced stomach hurt and headaches when she visited her grandmother and had nightmares about her grandmother but was fine after she stopped participating in the visits. She also cited the fact that KR expressed “that even having the opportunity for future visits with her grandmother would cause stress for her.” The trial judge deliberately left her extended care order silent with respect to access between KR and her grandmother so that it would be within F&CS’s discretion to determine what, if any, communication could occur between them. She noted that F&CS may decide to permit the exchange of letters and pictures between them.

[66] With respect to the father, the trial judge concluded that it would be harmful to the mental health of KR and SR to force them to have a relationship with their father, as they do not feel safe with him. She accepted Ms. Diebel’s opinion that forcing the children to have a relationship with their father could have long-term negative effects on their mental health. She ordered no access between KR, SR and their father.

[67] The trial judge concluded that it is in CR’s best interests to continue to have some relationship with his father, but only on his own terms and in a limited way, with CR being the access holder. She ordered that CR shall have a right of access to his father by way of an annual supervised visit as arranged in the discretion of F&CS and subject to CR’s wishes. She also ordered that CR shall have a right to exchange letters, cards and/or pictures with his father every three months, subject to his wishes.

[68] With respect to the father’s request for the court to order reunification therapy, the trial judge noted that he “provided no details of who he would propose to conduct this reunification therapy, or the benefits of such therapy for the children.” She reviewed the relevant statutory provisions and jurisprudence and concluded that the children’s consent to the therapy would be required, regardless of their age. She noted that there was “no evidence as to whether or not the children would consent to such therapy.” She accepted the opinion of the OCL clinician that “giving the children a choice on significant issues such as whether or not to form a relationship with their relatives is very important for their emotional wellbeing.” For all these reasons, she denied the father’s request for an order requiring the children to attend reunification therapy.

[69] The father and grandmother did not appeal from the trial judge’s order for the children’s placement in extended care. They only appealed the access orders and the denial of an order for reunification therapy.

[70] Before considering the Appellants’ grounds of appeal, I will summarize the standard of review that applies to this appeal.

Standard of Review

[71] The standard of review is correctness for questions of law, and palpable or overriding error for questions of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 19; Benhaim v. St. Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at paras. 36-39.

[72] The standard of "palpable and overriding error" addresses both the nature of the trial judge’s factual error and its impact on the result. A "palpable" error is one that is obvious and plain to see, such as a finding made in the complete absence of admissible evidence, in conflict with accepted evidence, or based on a fundamental misapprehension of evidence. An "overriding" error is one that is sufficiently significant to vitiate the challenged finding of fact. The conclusion that one or more findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Waxman v. Waxman, [2004] O.J. No. 1765 (C.A.), at paras. 296-297.

[73] In Benhaim, at para. 38, the Supreme Court of Canada approved the following helpful explanation of this standard of review by Stratus J.A. in South Yukon Forest Corp. v. R., 2012 FCA 165, at para. 46: “When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.” At para. 39 of Benhaim, the Supreme Court of Canada also adopted the following statement of Morissette J.A. in G.(J.) c. Nadeau, 2016 QCCA 167, at para. 77: "a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions."

[74] Questions of mixed law and fact lie along a spectrum and the standard of review for such questions depends upon where the issue falls on the spectrum. Only where a legal principle is readily extricable will the matter be subject to the standard of correctness. Where the issue involves the trial judge's interpretation of the evidence as a whole, it will not be overturned absent palpable and overriding error: Housen, at para. 36.

Appeal

Relief Sought by the Appellants

[75] In this appeal, the father asks for an order that the children participate with him in reunification therapy so that he can work towards having custody of or at least regular access with them in the future. He also asks that any adoption proceedings be stayed.

[76] The grandmother supports the father’s appeal and the relief he has requested. In addition, she asks for an order that she be involved in the family reunification therapy, that the family be provided other appropriate counseling services, that she be granted the status of an access holder for the children, and that she be granted access pending the commencement of the family reunification therapy and more extensive access following the therapy.

Grounds of Appeal

[77] The father raises two grounds of appeal. First, he submits that the trial judge erred in fact and in law by finding that F&CS had done a proper investigation in determining whether the children were telling the truth about the sexual assault allegations. Second, he argues that the trial judge erred in not ordering family reunification therapy between him and the children to facilitate access in the future.

[78] The grandmother raises two additional grounds of appeal. First, she submits that the trial judge erred by failing to address evidence that was favourable to her. Specifically, the grandmother argues that:

a) The trial judge erred in fact by concluding that the grandmother was not cooperative with F&CS without reconciling the contradictory evidence given by her and by F&CS witnesses to the effect that she was cooperative after the children were removed from her care. Counsel for the grandmother submits that the trial judge “did not address or give sufficient weight in her reasons for judgment to the extensive history of cooperation that [the grandmother] had with F&CS and related persons and individuals.” b) The trial judge erred in fact and law by failing to address evidence of positive visits between the grandmother and the children when she determined the best interests of the children and assessed their views and preferences. In particular, the trial judge did not mention the visit in mid-June 2018 when SR became emotional because she did not want the visit to end. The trial judge also failed to take into consideration evidence that the children expressed a desire for greater access to the grandmother in April 2018 and SR expressed a preference to live with the grandmother at that time. Counsel for the grandmother submits:

Nowhere in any of Justice Neill’s reasons is there any reference to the conflicting evidence at the access visits that the children were strongly indicating through actions and words that they wanted to be with their family including [their grandmother].

In fact, the evidence of the positive visits up until June 2018 and the strongly favourable views of the children as expressed to [the OCL clinician] of [the grandmother] are completely at odds with the total acceptance of the position that somehow in the late spring and summer of 2018 the close and loving relationship of [grandmother] with the children just evaporated.

c) The trial judge erred in fact and law by failing to address key evidence that F&CS played a significant role in the incident that occurred in October 2018, which resulted in the breakdown of SR’s and CR’s relationship with the grandmother. Counsel for the grandmother submits:

[T]here is no mention [in the trial judge’s Reasons] of the factors behind the deterioration of the visit on October 11 orchestrated by F&CS (for whatever reasons) for putting [the grandmother] in a situation where she could have been in violation of Justice Caspers’ order.

[79] The grandmother’s second ground of appeal is that the trial judge erred in fact and law by failing to address whether F&CS had met its obligation to work with the grandmother and provide support to the family. Alternatively, the grandmother argues that the trial judge erred by (implicitly) concluding that F&CS had satisfied this obligation.

Issues

[80] The issues to be determined in this appeal are as follows:

1. Did the trial judge err by finding that F&CS had done a proper investigation in determining whether the children were telling the truth about the sexual assault allegations?
2. Did the trial judge err by refusing to order reunification therapy between the children and the father?
3. Did the trial judge err by overlooking evidence that was favourable to the grandmother?
4. Did the trial judge err by failing to determine whether F&CS had met its obligation to work with the grandmother and provide support to the family?

Analysis

Issue #1: Did the trial judge err by finding that F&CS had done a proper investigation in determining whether the children were telling the truth about the sexual assault allegations?

[81] The father submits that F&CS ought to have conducted an independent investigation into the allegations against him before verifying the concerns of sexual abuse raised by his two daughters. He submits that the trial judge erred in fact and law by finding that F&CS had done a proper investigation.

[82] The father’s counsel relies on the decision of Spence J. in Catholic Children’s Aid Society of Toronto v. D.(M.), 2006 ONCJ 171, a case involving two siblings who were separated. In that case, the 13 year old brother was placed in the custody of an aunt and uncle due to concerns that he had engaged in inappropriate sexual conduct with his 12 year old sister. The sister had been diagnosed with an intellectual disability and did not function at her age level.

[83] The siblings in D.(M.) had a close relationship and often did things together that involved body contact, such as play wrestling. The sister initially disclosed to a social worker at her school that she had “humped” her brother and touched him in the groin area. The social worker reported this disclosure to the Society. The Society conducted an investigation, during which the sister repeated her disclosure of “humping” and reported various other types of touching of private parts. The brother was interviewed and denied ever behaving inappropriately or sexually with his sister. He acknowledged that he may have touched her private areas while wrestling together but denied intentionally doing so.

[84] The Society in D.(M.) verified the concerns of sexual abuse. The parents then agreed to have their daughter assessed and treated by an agency specializing in sexual abuse therapy. It was anticipated that the assessment would take eight weeks and the therapy would take approximately one year to run its course. The Society and agency were both opposed to any sibling access taking place prior to the commencement of the therapy and while the therapy was ongoing. The siblings missed each other greatly and both expressed a desire to spend time together. The parents were concerned about their prolonged separation.

[85] The case before Spence J. dealt with a motion for sibling access pending a trial on whether the children ought to be found in need of protection and, if so, the appropriate disposition. In his decision, Spence J. was critical of the Society’s verification that the sexual abuse had occurred. He held that a proper investigation had not been done. He noted that the evidence filed by the Society consisted of affidavits from two child protection workers, neither of whom “has been shown to have any special expertise that would enable them to ‘verify’ the truth of the allegations of sexual abuse.” He found that the verification appeared to have been made based solely on the Society’s protocol that “when disclosures are made and not recanted, this will constitute verification.” He noted that the police had interviewed the sister and did not lay any criminal charges in respect of her allegations. He also noted that there was expert evidence from the children’s paediatrician and from a family therapist, both of whom independently expressed the opinion that no sexual activity had occurred between the siblings. The family therapist also expressed the view that the sister did not even fully understand the things she was saying about the alleged incidents.

[86] The facts in the D.(M.) case are readily distinguishable from the facts that were before the trial judge and are before me on appeal. There was no evidence at trial that either KR or SR lacked comprehension of the allegations they made against their father. No expert witnesses expressed the opinion that the sexual abuse had not occurred. Although the father was acquitted of all criminal offences, he was charged and tried based on KR’s and SR’s statements to the police. Evidently, the police and the Crown thought there was sufficient evidence to pursue a criminal prosecution. F&CS did not conduct separate interviews of the children, but the verification of the concerns of sexual abuse was based on disclosures made by KR and SR to the police and to their counsellor, who has thirty years of experience in dealing with child sexual abuse. For all these reasons, I find the decision in D.(M.) to be distinguishable on its facts and unhelpful to me in this appeal.

[87] In any event, the trial judge in this case did not make a specific finding that F&CS “had done a proper investigation” into the allegations of sexual abuse against the father. She noted that the father was critical of F&CS for not conducting an independent investigation but made no finding about the propriety of F&CS’s reliance on the police interviews in arriving at a decision to verify the concerns about sexual abuse.

[88] The trial judge concluded that the children continue to be in need of protection because of an ongoing risk of emotional harm, not because of any risk of sexual abuse. She correctly held that the question before her was not whether sexual abuse had occurred, but rather whether the children continued to be in need of protection and if so, what disposition was in their best interests. In answering those questions, she properly focused on evidence relevant to the issue of potential emotional harm, which was the basis upon which the original protection order (dated October 24, 2017) was made.

[89] Among other evidence, the trial judge cited the following:

a) The children all suffered trauma due to the loss of their mother at a young age; b) KR and SR have repeatedly disclosed, in different settings over time, that sexual abuse occurred; c) The father, grandmother and paternal aunt do not believe the girls’ allegations; d) There is pattern of denial of sexual abuse on the paternal side of the family in relation to a long history of intergenerational sexual abuse in the family; e) The girls told numerous caregivers (their foster mother, F&CS staff, their first therapist, their current counsellor and the OCL clinician) that their grandmother does not believe their disclosures of abuse and that they feel unsupported by her and by their paternal aunt; f) CR believes his sisters’ allegations, is angry with his father due to his sisters’ disclosures and feels sad that his grandmother does not believe that his sisters are telling the truth; g) Ms. Diebel is of the view that “asking CR to maintain contact with his father and grandmother places him in a conflicted position”; h) The children repeatedly reported to Ms. Diebel that their grandmother is in the “red zone” of a person they do not trust and with whom they do not feel safe; i) The two girls exhibited troubling behaviours and reported negative feelings after supervised visits with their father in a clinical setting, despite a Safety Plan having been implemented; j) The children expressed feeling unsafe in their father’s presence; k) Ms. Diebel is of the view that “the greatest concern for these children is the pressure they are under to maintain relationships with adults in their lives who provide them with no support and no validation of their abuse and traumatic experiences”; and l) Ms. Diebel wanted to work with the grandmother on how the children could trust her and feel safe with her, but despite her efforts, she found that the grandmother was not able to support KR and SR because she did not believe their disclosures.

[90] Based on the above and other relevant evidence, the trial judge concluded that the children continue to be in need of protection, not because of a risk of sexual abuse by their father, but rather because of an ongoing risk of emotional harm.

[91] The trial judge did not make the factual finding attributed to her by the father, namely that F&CS conducted a proper investigation before verifying the concerns about sexual abuse. She made no finding on this issue. She did not err in law by failing to determine whether the F&CS investigation was properly conducted. It was unnecessary for her to make such a finding before arriving at a conclusion about whether the children were at risk of emotional harm.

[92] For the above reasons, I reject the father’s first ground of appeal.

Issue #2: Did the trial judge err by refusing to order reunification therapy between the children and the father?

[93] The father argues that any risk of emotional harm to the children has been manufactured by F&CS and that the trial judge erred by not ordering reunification therapy to restore his relationship with the children. Once again, counsel for the father relies on the decision of Spence J. in D.(M.).

[94] In that case, Spence J. was troubled by the fact that the Society’s protocol had set into motion a chain of events that could lead to very serious and potentially irreversible consequences, including irreparable damage to the separated siblings’ relationship. He made no determination as to whether the incidents of alleged sexual abuse had occurred, but he noted that if the Society’s verification were in error, then the sister would be incorrectly assessed and counseled on the premise that she is a victim of sexual abuse. He commented, at para. 26:

During the 12-to-14 month period of assessment and therapy, she would be treated by everyone with whom she comes into contact, as though she were a victim of sexual abuse. This is a child who has been diagnosed with a general intellectual disability. If she does not today firmly believe that she was in fact sexually abused, there can be little doubt that she would be convinced of that fact by the time all the professionals are through with her…

[95] In the appeal before me, the father argues that such an unstoppable chain reaction occurred when his children were removed from their grandmother’s care and placed in F&CS care in February 2016. The children have received counseling at the behest of F&CS since that time. He submits that the children have been influenced by their foster mother, their counselors and their F&SC workers, all of whom believe KR’s and SR’s allegations and have therefore treated the children as though the sexual abuse occurred, even though he was acquitted of all criminal charges.

[96] In her Reasons for Judgment, the trial judge noted that:

The father, grandmother and [aunt SH] all adamantly deny the disclosures by KR and SR. They blame [KR’s friend] KM as instigating the disclosures of sexual abuse as KR initially made these disclosures while playing a game of truth or dare with KM. They blame the police using inappropriate questions and [aunt SH] believes the police coached the girls to make up the sexual abuse allegations as they disliked the father because of KM’s disclosures. They believe that society workers and the foster mother have also influenced and coached the children. The grandmother testified that if the children had been placed in a proper foster home, “this never would have gone this far”, and the more the workers spoke with the children about this issue the “bigger the story got”.

[97] The father and the grandmother believe that in light of his acquittals and the influence purportedly exerted upon the children, reunification therapy should be ordered with a view to restoring the family unit. They argue that the trial judge erred by refusing to order such therapy.

[98] In support of their theory that the children have been manipulated, the father and grandmother cite SR’s disclosures over time of increasingly serious incidents of sexual abuse and the shift in the children’s views regarding their waning desire to maintain a relationship with their father and live with their grandmother. However, the fact of incremental disclosure by SR and the existence of a shift in the children’s views and preferences do not, in and of themselves, constitute proof that the children’s minds have been poisoned. There was no evidence whatsoever adduced at trial to support a finding that the children were manipulated by the police, their foster mother, their counselors or F&CS workers in the manner alleged by the father and grandmother.

[99] Moreover, Ms. Diebel gave evidence contradicting the father’s theory of “false memories” induced by counselors who treated the girls for sexual abuse. Under cross-examination, she testified that she is familiar with the phenomenon of false memories. She stated that, unlike instances of false memory, KR and SR did not have non-linear thoughts or gaps in memory that someone else filled in for them. She also testified that the girls had no (conscious or unconscious) motivation to create a false story of abuse. Ms. Diebel noted that both KR and SR consistently expressed that they love their father and are very conflicted about the abuse. She stated that both girls “tell a very concise sexual abuse story but [are] torn because their dad was a good guy and they loved him and they had great memories.” She expressed her opinion that there were no indicators consistent with “false memories” in this case. The father did not call expert evidence to refute her opinions.

[100] The grandmother’s theory at trial was that the children’s views about her evolved over time, out of no fault of her own, but rather because the children were subjected to constant scrutiny and questioning by F&CS workers and counselors who put ideas in their minds. The trial judge accepted the evidence of the OCL clinician who interviewed the children eleven times between May 2017 and November 2018, and who indicated that the children’s views and preferences “evolved over time but were clearly stated, strong and appeared to be genuine.” The trial judge accepted the evidence of the OCL clinician that she “had no reason to believe that the children’s views were not independent or influenced in any way, by the Society or anyone else.” These findings of fact by the trial judge are owed deference: Benhaim, at paras. 38-39; Waxman, at para. 292.

[101] The trial judge’s decision not to order reunification therapy was made based on the evidence before her, including evidence of the children’s views and preferences, which she found to be independent and genuine, as well as expert evidence from the children’s counselor. Ms. Diebel gave evidence that the children did not want to be forced to have further face-to-face contact with their father. She specifically recommended against any further therapy involving the father. She made this recommendation after twenty-five therapy sessions with KR and SR, nineteen sessions with CR, and several meetings with the father and grandmother. The father did not call any expert evidence to refute Ms. Diebel’s opinion.

[102] Moreover, as noted by the trial judge, the father did not provide any details about the proposed therapy or its benefits for the children and did not suggest names of proposed therapists. Orders for reunification therapy are made sparingly, only on compelling evidence that the therapy will be beneficial, and where the request is supported by a detailed therapeutic plan identifying the proposed counselor and what the therapy will entail: F.K. v. A.V., 2019 ONSC 4162, at para. 19. The trial judge’s decision was consistent with these principles articulated in the jurisprudence.

[103] The trial judge’s decision not to order reunification therapy was also based on the correct application of the statutory framework under which her decision was made. She referenced ss. 22(7) and 23(2) of the CYFSA which provide that if counselling or treatment is subject to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, the consent provisions of that Act apply. She correctly concluded that the children’s consent would therefore be required for any family reunification therapy. She noted that there was no evidence before her of the children’s consent.

[104] The trial judge made no error in legal principle and no palpable error of fact in reaching her conclusion that reunification therapy should not be ordered. The father’s second ground of appeal is therefore also rejected.

Issue #3: Did the trial judge err by overlooking evidence that was favourable to the grandmother?

[105] As set out above, the grandmother’s submissions in support of this ground of appeal focus primarily on three areas of evidence that she argues the trial judge wrongly ignored, namely: a) evidence of the grandmother’s cooperation with F&CS and related individuals; b) evidence of positive visits in the spring of 2018 and related evidence of the views expressed by the children around that time that they wanted to go home with their grandmother; and c) evidence that F&CS orchestrated the culminating incident in October 2018 by putting the grandmother in an untenable position, where she could have been found to be in violation of the court order not to discuss the allegations with any of the children.

[106] I disagree with the submission that the trial judge completely failed to address all this relevant evidence. For example, with respect to the issue of the grandmother’s cooperation, the trial judge noted the following in her judgment:

a) The grandmother abided by the no contact order between the father and the children; b) She followed F&CS direction and stopped talking to the children about their father during their visits; c) She followed court orders not to discuss the allegations of sexual abuse with the children; d) She met with a F&CS worker to discuss a safety plan and therapeutic access plans for the children; e) She met with the children’s counselor, Ms. Diebel, on several occasions to discuss how to deal with the children’s disclosures and the fact that they did not trust her; f) She also indicated a willingness to meet with the children’s therapist at CMHA; g) She reviewed both KR’s and SR’s trauma narratives with Ms. Diebel; and h) She completed a “Words and Pictures” activity with the children, as requested by F&CS.

[107] In her written submissions, the grandmother refers to other evidence of her cooperation that is in the trial record but was not mentioned in the trial judge’s Reasons for Judgment. I agree with the submission of F&CS that the areas of cooperation listed in the grandmother’s factum are related to peripheral issues and not the core concern that the grandmother refused or was simply unable to support the children by creating an atmosphere in which they were free to tell their trauma stories without feeling disbelieved.

[108] In any event, the trial judge was not required to recite every piece of evidence adduced at trial. Nor was she required to give any particular piece of evidence the amount of weight that the grandmother submits it deserves. Omissions in a trial judge’s reasons do not automatically give rise to grounds of appeal. An omission will constitute a material error only “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 [her] conclusion”: Housen, at para. 39.

[109] There can be no reasoned belief that the trial judge committed such an error in this case. She did not completely ignore evidence of the grandmother’s cooperation. She merely gave greater weight to the ample evidence that supported her conclusion that “historically there have been concerns with the grandmother’s ability to cooperate with the Society.” The fact that conflicting evidence existed, not all of which was recited in her judgment, is not sufficient to establish an error of fact, let alone one that is palpable and overriding.

[110] Similarly, with respect to the positive visits leading up to the spring of 2018 and the children’s expressed views, at that time, that they wanted expanded access and visits in the home with their grandmother, the trial judge did not forget or ignore this evidence. Contrary to the grandmother’s submission, the trial judge specifically noted that “until approximately June 2018 there were no concerns” about the children’s visits with the grandmother. The fact that she did not mention the specific visit in mid-June 2018, when SR was unhappy that the visit ended prematurely and wanted to remain with her grandmother, does not establish a fundamental misapprehension of the evidence that amounts to palpable and overriding error.

[111] There was conflicting evidence at trial about what transpired at the last visit in October 2018. The trial judge did not include in her Reasons for Judgment a summary of the grandmother’s evidence regarding the incident. She did not specifically address the grandmother’s argument that F&CS played a significant role in provoking the incident. Just as the trial judge was not required to recite and reconcile every piece of evidence adduced at trial, she was similarly not required to address every submission made by the parties. A failure to deal with an argument raised by one of the parties will constitute a material error only if it gives rise to the reasoned belief that the trial judge must have misconceived the evidence in a way that affected her conclusion: Housen, at para. 39.

[112] In this case, the grandmother did not deny swearing at the F&CS worker in the presence of SR and CR during the visit on October 11, 2018. Because of that admission, the trial judge’s failure to deal with the grandmother’s argument that F&CS orchestrated the conflict and put her in an untenable position does not give rise to a reasoned belief that the trial judge must have misapprehended the evidence in a manner that affected her conclusion. Regardless of the reasons that provoked the grandmother’s anger and the F&CS worker’s possible contribution to the situation, the trial judge was entitled to rely on this undisputed fact in concluding, as she did, that the “grandmother has a negative attitude towards the Society, which has been expressed in the presence of the children.” This was one of the factors that the trial judge took into consideration in denying the grandmother’s request to be an access holder. In doing so, the trial judge committed neither an error of fact nor an error of mixed fact and law.

[113] The grandmother’s first ground of appeal is therefore dismissed.

Issue #4: Did the trial judge err by failing to determine whether F&CS had met its obligation to work with the grandmother and provide support to the family?

[114] The grandmother argues that F&CS, as a children’s aid society, has a statutory obligation to provide guidance, counselling and other services to her for the protection of the children or prevention of circumstances requiring the protection of the children. She further argues that the trial judge was required to ensure that this statutory obligation was met before she ordered that the children be placed in extended care: Children’s Aid Society of St. Thomas and Elgin County v. C.Z., [2003] O.J. No. 4177 (C.J.), at paras. 23-28; Children’s Aid Society of Halton Region v. R.R.N., 2008 ONCJ 95, at para. 129. The grandmother submits that the trial judge failed to make this determination or, alternatively, erred in fact and in law by concluding (implicitly) that F&CS had satisfied its obligation.

[115] The statutory obligation invoked by the grandmother was created by s. 15(3)(c) of the Child and Family Services Act, which was repealed on April 30, 2018 and replaced with the current CYFSA. Under the former legislation, a children’s aid society’s obligation to provide guidance, counseling and other services to families was ongoing for as long as a child required the protection of the state. Judges therefore had a duty to inquire into the steps taken by the society to assist a family before ordering the child be placed into care, whether on an initial application or upon a status review: C.Z., at paras. 23-29; R.R.N., at paras. 129, 154.

[116] In this case, the trial of the Status Review Application was conducted pursuant to the CYFSA, not the former Child and Family Services Act. The provisions of the current legislation include a recognition that one of the purposes of the CYFSA is to take the “least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered”: s. 1(2)2. It also includes a stipulation that “services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible”: s. 1(2)6. Pursuant to these provisions, F&CS had an obligation to provide appropriate services to the father and grandmother, including guidance and counselling, with a view to building on the family’s strengths and promoting a solution that was least disruptive to the family unit. F&CS does not dispute that it has an obligation to support and provide appropriate services to families.

[117] I reject the grandmother’s submission that the trial judge completely overlooked this issue. She addressed it specifically in her judgment. She noted that the grandmother was critical of F&CS for not offering her assistance or resources other than meetings with Ms. Diebel to help her deal with the situation. She also noted F&CS’s position that they understood the grandmother was already seeing a counsellor to deal with the situation.

[118] It is clear from the trial judge’s findings and ultimate orders that she implicitly found that F&CS had met its obligation to offer appropriate support services to the family. The grandmother argues that such a finding constitutes a fundamental misapprehension of the evidence and an error of mixed fact and law.

[119] In her written submissions, the grandmother argues that F&CS expressed platitudes to the effect that it wanted to help the family but provided no concrete guidance or support. She lists instances when F&CS failed to follow through on offers of counselling or other assistance. Much of the evidence quoted in the factum is not referenced in the trial judge’s Reasons for Judgment. However, the trial judge did not ignore the fact that F&CS had, on occasion, failed to follow through on recommendations that might have assisted the grandmother. For example, the trial judge noted that although the grandmother expressed willingness to meet with the children’s counsellor at CMHA, the meeting did not occur. Furthermore, she noted that F&CS said it would share the children’s counselling reports with the grandmother, but never did so.

[120] The trial judge also recited evidence in support of F&CS’s position on this issue. She noted that the grandmother had advised F&CS that she was meeting with her own counsellor on a monthly basis since the time of the children’s apprehension in February 2016. She also noted that when Ms. Diebel offered to speak to the grandmother’s counsellor, the grandmother refused. Similarly, the trial judge noted that the father was attending individual therapy with his own counsellor and that the father’s counsellor refused to share any information with Ms. Diebel about the nature of the counselling provided to the father.

[121] Moreover, the trial judge reviewed evidence that F&CS arranged for the grandmother to meet with Ms. Diebel for counselling to attempt to shift her approach to the children. She referred to Ms. Diebel’s opinion that the counselling was not successful because the grandmother was defensive and rigid in her thinking.

[122] There was ample evidence to support the trial judge’s implicit finding that F&CS had taken appropriate steps to provide guidance and counselling to the family. The fact that she did not recite all the evidence in support of the grandmother’s contrary position does not amount to a fundamental misapprehension of the evidence. No palpable error of fact or incorrect legal principle has been established.

[123] The grandmother’s second ground of appeal is therefore dismissed.

Conclusion

[124] For the reasons set out above, the appeal is dismissed. No party sought an order for costs and none will be made.

“Justice Petersen”

Petersen J. Released: March 24, 2020