ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW APPEAL
B E T W E E N:
BRUCE GREY CHILD AND FAMILY SERVICES
Cory B. Deyarmond, counsel for the Applicant/Respondent on the Appeal
Applicant/Respondent on the Appeal
- and -
A.V.S. and A.M.
Respondents/Appellants on the Appeal
CHILDREN’S LAWYER
H. Jane Robertson
HEARD: January 16, 2020
REASONS FOR JUDGMENT
[On appeal from the judgment of Hardman J.
dated December 13, 2018]
WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O., 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
- — (7) Order excluding media representatives or prohibiting publication – Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re 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.
Prohibition re identifying person charged
(9) Prohibition re identifying person charged –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.
142.— (3) Offences re publication — A person who contravenes subsection 87 (8) or 134 (11) (publication of identifying information) or an order prohibiting publication made under clause 87 (7) (c) or subsection 87 (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.
VAN MELLE J.
1This is an appeal brought by the Respondent mother, A.V.S. and A.M. from the judgment of the Honourable Justice P. A. Hardman of the Ontario Court of Justice released on December 13, 2018. A bifurcated trial took place before the Ontario Court of Justice, beginning in June 2017 and ending in May 2018. In September 2017 there was a finding that R and C were in need of protection. In December the judgment regarding disposition was released. The trial judge placed RV in the extended care of the Bruce Grey Child and Family Services (the Society) with access to his brother, C. The trial Judge placed C in the care of A.M., a close friend of the family, under a supervision order.
2The original application dealt with two children, but C is now 18 years of age and is no longer subject to supervision by the Society.
3The Office of the Children’s Lawyer (OCL) represented both children during the trial and continues to represent R on this appeal.
OVERVIEW
4An application was brought by the Society on July 17, 2015. The Society and the mother were the only parties to the issue of whether or not the children were in need of protection. The court heard five days of evidence and submissions. It was agreed that, should a finding of protection be made, the evidence heard was to form part of any disposition hearing.
5In September 2018 Justice Hardman found that R was in need of protection pursuant to subclause 37(b), (f), (f.1), (g) and (g.1).
6A.M. was added as a party to the disposition hearing.
7The subject of this appeal is the disposition hearing.
APPELLANT A.V.S.’s POSITION ON APPEAL
8A.V.S. asks that the Judgment of Justice Hardman be set aside and a new trial ordered. The grounds for her appeal are:
a) Justice Hardman erred in providing undue weight to the evidence of Dr. L. Sas and erroneously delegated its adjudicative role to Dr. Sas.
b) Justice Hardman erred in relying upon dated notes and records of social workers, medical professionals and other community agencies without testing the reliability and trustworthiness of such records and further that she placed undue weight on such information.
c) Justice Hardman erred in allowing Crisis Line call records into evidence.
d) Justice Harman erred in failing to acknowledge the potential detrimental effect on the children which may reasonably arise from there being different access orders for each child.
e) Justice Hardman erred in allowing the OCL to change its position on behalf of R months after the conclusion of the trial without any supporting evidence and failed to allow the appellants an opportunity to challenge the OCL’s change in position not to allow the appellants to call evidence on the issue.
f) The court erred in failing to take into account the extensive remedial efforts the applicant had made to address the protection concerns raised by the Society.
g) The court erred in speculating that the appellant would not maintain stability and sobriety in her life despite evidence to the contrary.
h) The court erred in finding that the child could not start school because he was not vaccinated, which finding of fact was incorrect.
THE APPELLANT A.M.’S POSITION
9A.M. also asks that the trial judgment be set aside, and a new trial ordered.
10Justice Fragomeni on April 25, 2019, with the consent of A.M. made an order that of the nine grounds in A.M.’s Notice of Appeal he would only be proceeding on 1 and 6. Number 1 is: “the Honourable Justice Hardman erred in giving weight to the evidence provided by Dr. Sas an assumption that this evidence had more merit and the refusal to allow evidence of Dr. Sas’s past.” Number 6 is: “Justice Hardman erred in not completing matters on hold before the court as Justice Harrison prevented claim of Loco Parentis and custody by A.M. in standing as a parent to C and R.”
THE SOCIETY’S POSITION
11The Society asks for an order dismissing both appeals on the basis that the Honourable Justice P.A. Hardman made no error in fact or law in her decision.
OCL’S POSITION
12The OCL also seeks to dismiss both appeals as neither appellant has identified any errors of fact or law that would impact the trial judge’s decision to place R in the extended care of the Society.
MOTION FOR FRESH EVIDENCE
13Prior to the hearing of the appeal, all parties asked for fresh evidence to be admitted. Fresh evidence has a unique role in child protection appeals. The test for admissibility is different than in other civil or criminal appeals and the threshold for admissibility appears to be considerably lower. As a result, fresh evidence is admitted much more routinely, although certainly not automatically.
14Due to time limitations, I ruled that I would admit evidence of events that had occurred since the decision was rendered in December 2018. The fresh evidence of the appellants that I admitted were affidavits of witnesses on behalf of A.V.S. to demonstrate the progress she has made in her life, particularly regarding the concerns outlined by Dr. Sas and accepted by Justice Hardman. The evidence with respect to A.M. was in respect to his claim regarding loco parentis.
15The admission of further evidence is set out in s. 134(4)(b) of the Courts of Justice Act, RSO 1990, cC-43.
16In child protection matters, subsection 121(6) of the Child, Youth and Family Services Act provides that an appellate court may receive further evidence relating to events after the appealed decision.
17In H.E. v. M.M., 2015 ONCA 813 at paragraph 71:
Where the welfare of a child is at stake, the jurisprudence indicates a more flexible approach to the Palmer test for the admission of fresh evidence is appropriate: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261 (Ont. C.A.) at para. 13; see Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.). Flexibility in such matters is consistent with the need for up-to-date information on children, whose fate often hinges on a determination by judges, and is thus in line with the overarching criterion for admission, namely, the interests of justice.
18The criteria for determining whether fresh evidence should be admitted at the appeal are:
The evidence must not have been available at the trial;
The evidence must be highly relevant;
The evidence must be potentially decisive to a best interest determination; and
The evidence must be credible.
THE FRESH EVIDENCE OF THE APPELLANTS
19The fresh evidence of A.V.S. includes affidavits and letters. As I indicated at the hearing of the appeal, I would only accept evidence of events that had occurred since December 2018.
20A.V.S. brought witnesses with her to testify to the steps she has taken to deal with issues raised during the hearing. She also had letters and affidavits. The letters are not sworn documents and thus are not evidence that I will consider. The letters contain hearsay which is unreliable. A few of the letters deal with a breach of confidential information which has no bearing whatsoever on this appeal.
21Amie Foster testified at trial. Her affidavit sworn January 14, 2020 contains information that she tried to put before Justice Hardman but was not accepted. This is not fresh evidence. The information provided by Amie Foster in the affidavit is provided to bolster A.V.S.’s version of events and is not helpful.
22At the end of the hearing of the appeal, A.V.S. wanted to play a DVD in court. As we were out of time, I agreed to take three DVDs with me and asked for written submissions regarding their admissibility. Prior to receiving written submissions, I watched the DVDs and advised the parties that written submissions were no longer necessary. The first DVD contained a video of the song “Erase Me.” The second DVD was a tour of A.V.S.’s house in Palmerston. The third DVD appeared to be shot in a church and was a video of A.V.S. performing a dance with a ladder as a prop. This is not admissible as fresh evidence as the DVD’s do not meet the test for admissibility.
FRESH EVIDENCE OF THE SOCIETY
23The fresh evidence that the Society wished to put before the court, concerned current, credible information pertaining to R’s best interests that was not available at the date of trial consisting of affidavits of Teresa van Aalst, Deane Brown-Anderson Aalst and Julie Walker.
24Teresa van Aalst is a Family Based Care Worker at the Society and affirmed in her affidavit on January 9, 2020 that R now wishes to be adopted by his foster family. Teresa van Aalst deposed to having seen R with the foster parents who wish to adopt him. Ms. van Aalst has observed R with his foster parents on ten occasions. She says that R is settled in the home and enjoys a positive relationship with his current foster parents. She said as well that she spoke to R about Justice Hardman’s decision and he was clear that he understood it meant that he could now be adopted.
25Deane Brown-Anderson Aalst is a Family Resource Worker and has provided information about the commitment of a foster family to adopting R as well as R’s views regarding this family. Deane Brown-Anderson’s affidavit confirms that R feels at home with his foster parents and wishes to be adopted by them.
26Julie Walker is employed by the Society as a Family Resource Worker and provided information about changes in the living arrangements o R’s older brother, C that may affect the plan proposed at trail by A.M. and therefore, his appeal. She deposed that at the conclusion of the trial and the decision of Justice Hardman C was residing with A.M. However, on October 2, 2019 C advised Ms. Walker that the does not live with A.M. and in fact resides with his mother A.V.S. in Palmerston. Thus if R were placed with A.M. he would not be living with his brother, C.
27A.V.S. said that she was not properly served with the Society’s materials on the motion for fresh evidence. I was provided with an affidavit of service by courier. It is however, important to note, as will be evident herein, that in deciding the disposition of this appeal, I did not rely exclusively on the materials tendered by the Society and the OCL.
FRESH EVIDENCE OF THE OCL
28The fresh evidence that the OCL wished to put before the court is updated evidence about R’s current circumstances and views and preferences in considering the appeals. The affidavits of both Katherine Moran-McAlpine and Lynda Belanger set out information that is relevant to R’s best interests and is potentially determinative to the appeal. The information in these affidavits were not available prior to December 2018. While it is important for the court to have the views and preferences of R at this time, it is not necessarily determinative of the appeal.
29The OCL’s fresh evidence consists of a note authored by R and addressed to A.M. It reads:
Dear (A) I have been great. I hope you have to. There is a few things that I want to tell you, those things are I want to be adopted. I realy love the place I am in my parents love me and I love them so please stop fighting for me. I still love you but I realy want to be adopted thank you. Sincerely R. P.S. I love you
30A.M. submitted during argument, that this note does not reflect R’s writing style and believes he was coerced to provide it. There is no evidence of coercion, but as I have already stated, this evidence, while helpful is not determinative.
31Katherine Moran McAlpine is a Clinician at the OCL. She met with R on August 12, 2019, September 19, 2019 and October 4. She also met with R’s foster parents. R indicated that he wants to be adopted and that the only person he still wants contact with his brother C. He does not wish to have any access with his mother or A.M.
STANDARD OF REVIEW
32As cited with approval in Catholic Children's Aid Society of Hamilton v. C.R., 2009 CanLII 34047 (ON SCDC) at paragraph 10, the standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On pure questions of law, the standard of review is correctness. On findings of fact, the reviewing court ought not to interfere unless it is established that there has been a palpable and overriding error. On questions of mixed fact and law, the palpable and overriding error standard applies unless there is an extricable error of law.
33Significant deference is given to the factual determinations of a trial judge. One of the reasons for this is the trial judge’s opportunity to hear the evidence directly, to observe witnesses and assess credibility and to make factual findings. The Court of Appeal of Ontario has confirmed this is particularly true in child protection and custody cases: Benhaim v. St-Germain, 2016 SCC 48, at paragraphs 38-39; DD v. Children’s Aid Society of Toronto, 2015 ONCA 903, paragraphs 27-30.
34The appellants must bear in mind that an appeal is not a rehearing of the issues and evidence before the trial judge. Even if an appeal judge believes that he or she would have come to a different conclusion, that is not sufficient. The test of overriding and palpable error must be applied.
ANALYSIS
35I will deal with the substantive issues raised by the appellants in their respective Notices of Appeal.
A.V.S.
1. Justice Hardman erred in the providing undue weight to the evidence of Dr. Sas and erroneously delegated her adjudicative role to Dr. Sas.
36Justice Hardman heard 17 days of evidence in connection with this matter. She was in the best position to assess the witnesses and their credibility. Dr. Sas’s report was done for the court. Dr. Sas’s report was conducted over a 6 month period. I have reviewed her report. It is very comprehensive. She reviewed a lot of material and she conducted a number of interviews and observational visits. She was in the best position to complete the parenting assessment.
37Justice Hardman was entitled to rely upon the report. Her decision demonstrates a careful review of all the evidence. She preferred Dr. Sas’s evidence to that of some of the other medical practitioners because Dr. Sas had the advantage of being involved in the assessment over a long period of time unlike Louise Cameron and Dr. Shah.
38The fact that Justice Hardman did not follow the recommendations of Dr. Sas while not determinative of this issue is a very important factor.
2. Justice Hardman erred in relying upon notes of social workers, medical professionals and other community agencies without testing the reliability of such notes and/or placing undue weight on such notes.
39A.V.S. did not reference any evidence that the trial judge relied on such notes. I was also not advised as to whether or not any of the authors of the notes were made available as witnesses at the trial. I was provided with selected transcripts from the trial. I understand that transcripts are very costly, and it would have been prohibitively expensive for the appellants to have provided the transcripts of the entire trial. Without specifically pointing out where this is alleged to have happened, I have no ability to review this ground of appeal. My review of the trial judgment does not support A.V.S.’s allegation.
3. Justice Hardman erred in allowing the Crisis Line call records into evidence.
40The Crisis Line Records were originally admitted during the protection portion of the trial which decision was not appealed. During the disposition trial, Dr. Sas referred to the calls in her assessment. The assessment was properly before the court. In any event, Justice Hardman’s reference to “the Women’s Centre and the Women’s Community Crisis Line” in her December 13, 2018 decision does appear to have any material bearing on the decision itself.
4. Justice Hardman erred in failing to acknowledge the potential detrimental effect on the children which may reasonably arise from there being different access orders for each child.
41It is always open to a judge to make different access orders for children. The presiding judge must consider the child’s best interests as set out in s. 74(3) of the Child, Youth and Family Services Act. Best interests of children can be different even if the children are siblings. There is no precedent in law dictating that children in the same family must have the same access order. At the time of trial C was 17 and R was 10. They were at different stages of development and it is entirely appropriate to have two different dispositions relating to the children.
5. Justice Hardman erred in allowing the OCL to change its position on behalf of the child after the conclusion of trial and prior to the release of her decision.
42In this case it was important for Justice Hardman to know that R’s position had changed while the decision was on reserve. She did not err in accepting the submission of the OCL.
43A trial judge has wide discretion to receive further evidence any time prior to judgment being issued. Especially in child protection proceedings the court should hear further evidence so long as it is relevant to the consideration of what is in the best interests of the child. Not only are R’s views and preferences an important consideration when deciding his best interests, S. 74(3)(a) of the CFYSA mandates that a court take into account the child’s views and wishes and give those views and wishes due weight in accordance with the child’s age and maturity.
44In the fresh evidence offered by the OCL after the hearing but prior to Justice Hardman releasing her decision, R stated that his first choice was to be placed with his older brother, C and A.M. Justice Hardman instead placed R in extended society care for the purpose of adoption. The updated information did not materially affect her decision.
6. The Court erred in failing to take into account the extensive remedial efforts the appellants had made to address the protection concerns raised by the Society.
45The court did take into account the remedial efforts taken by the appellants. She weighed the evidence of the efforts undertaken and found that, despite these efforts, there was a great concern that the appellants were still unable to meet R’s needs. It is clear from the fresh evidence that A.V.S.’s remedial efforts continued. However, during the hearing of this appeal, despite the recommendation at trial that she take medication for her issues, she said that she is not on medication. She does not recognize that her issues go beyond “eccentricity”. She does not recognize the detrimental effect that her behaviour has had on R and his overwhelming need for stability and safety. Justice Hardman found that A.V.S.’s efforts did not adequately address R’s best interests or keep him safe if placed in her care. This finding was open to her on the evidence.
7. The court erred in speculating that A.V.S. would not maintain stability and sobriety in her life despite evidence to the contrary.
46Again, the trial judge’s overriding consideration was R’s best interests. From the transcripts that were made available to me, and from reviewing Dr. Sas’s report it is evident that A.V.S.’s life has been very difficult. She has significant mood swings. She likely suffers from mental illness and probably has a personality disorder. All of these things bear on her ability to parent R. The evidence before Justice Hardman did not demonstrate that A.V.S. would maintain stability and sobriety in her life.
47A.V.S. was also not consistent in her testimony on her sobriety. She had past claims of sobriety and denied using alcohol and marijuana despite other witnesses testifying that she had in fact done so. Her own testimony was contradictory on this issue. Justice Hardman considered the evidence and found that it was not in R’s best interests to be placed with his mother because of her unpredictable behaviour and her inability to meet his needs. It was open to Justice Hardman to come to this conclusion based on all the evidence before her.
8. The court erred in finding that the child could not start school because he was not vaccinated, which finding of fact was incorrect.
48Justice Hardman did not make such a finding. Justice Hardman simply referred to a comment in a doctor’s note that there was no record of immunizations, but she did not suggest that R could not start school because he was not vaccinated.
A.M.
1. Justice Hardman erred in giving weight to the evidence provided by Dr. Sas an assumption that this evidence had more merit and the refusal to allow evidence of Dr. Sas’s past.
49I have already addressed the issue regarding the weight given to Dr. Sas’s reports and evidence. Dr. Sas did a separate report concerning A.M. The comments that I made relating to A.V.S.’s assessment relate to A.M.’s assessment as well. The issue of the refusal to allow evidence of Dr. Sas’s past came up during the trial where A.M. wanted to put questions to her concerning her involvement in prior cases.
50At page 273 of Volume II of Dr. Sas’s testimony, A.M. asks:
Dr. Sas, I just wanted to briefly start with something. Quite a few times you mention in your assessment of myself, that I am not fully aware, or minimalizing, or avoiding divining whether or not A.V.S. is lying, or telling the truth or fantasizing about stories. I get the impression that you seem to think that I’m not capable of that; that I’m in a relationship with her currently, that this is blocking my clear view of what’s taking place. Now, I’m wondering if you are, are you able to divine the truth? I know you’re a professional. I know you’ve got a lot of experience, and more credentials than I’ll ever have, but there was a case in 1999…
51Justice Hardman interrupted and said: “Excuse Me. This is completely inappropriate. I don’t know where you’re going with this, but…”
52A.M. responded:
I’m trying to establish whether or not Dr. Sas has the credibility to claim that I don’t have credibility in establishing the truth. I’m saying – suggesting, or at least I’m trying to suggest, that she may not have that credibility.
53There is a bit more discussion on this issue, but the upshot was that A.M. wanted to question Dr. Sas about another court case she had been involved in. Justice Hardman told A.M. that he could not ask her about that because there had already been a hearing to establish whether or not Dr. Sas could offer expert testimony and the question of her involvement in a case in 1999 had not been raised then. Justice Hardman’s ruling on that issue was completely appropriate. Any questions regarding Dr. Sas’s experience should have been raised during the qualification part of her testimony.
2. Justice Hardman erred in not completing matters on hold before the court as Justice Harrison prevented claim of Loco Parentis and custody by A.M. in standing as a parent to C and R.
54A.M. says that Justice Harrison, during a previous hearing prevented him from advancing a claim of loco parentis. However, A.M. was permitted to participate in the deposition portion of the proceedings. He was permitted to put forward a plan of care for the children. His plan of care was implemented with respect to C. In these circumstances it would not have been necessary for him to have been found in loco parentis. It would have made no difference to the ultimate outcome in this matter.
CONCLUSION
55Other than broad sweeping statements by the appellants, 0there was no evidence led by either appellant to any errors except for a mistake that Justice Hardman made in referring to wrong medication.
56My review of Justice Hardman’s decisions and the available transcripts (not all the evidence at trial was transcribed) demonstrate a very careful consideration of all the evidence before her. She made findings of credibility which she was entitled to do. As the trial judge she was in the best position to weigh the evidence which she did. All her findings are well supported by the evidence. Her overriding concern was R’s best interests.
57The appellants’ fresh evidence would not have affected the decision of the trial judge.
58I recognize that the appellants were self-represented at the hearing of the appeal. As a result, I permitted submissions and considered evidence that would not have ordinarily been permitted. I wanted the appellants to have every opportunity to put their positions and concerns before the court. This is a sad and difficult situation and I believe that A.V.S. loves both her children. However, the legislation is clear that the best interests of the child must be the primary consideration.
59The appeal is dismissed.
VAN MELLE J.
Released: January 29, 2020
COURT FILE NO.: FS-19-0011 and FS-19-0012
DATE: 2020-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW APPEAL
B E T W E E N:
BRUCE GREY CHILD AND FAMILY SERVICES
Applicant/Respondent on the Appeal
– and –
A.V.S. and A.M.
Respondents/Appellants on the Appeal
REASONS FOR JUDGMENT
[On appeal from the judgment of
P.A. HARDMAN dated December 13, 2018]
VAN MELLE J.
Released: January 29, 2020