introduction

[1] The Appellant, N.P.B. is the mother of the child N.B. who is now 12 years old ("the child"). She appeals the final order of Justice C. Curtis dated March 18, 2020, made after a 7-day trial pursuant to the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 ("CYFSA").

[2] On consent, the child was found in need of protection. The trial judge placed the child in the extended care of the Catholic Children’s Aid Society (“Society”), with access at the Society’s discretion. The child is the access holder.

[3] The child’s father did not participate in the trial and is not participating in this appeal.

grounds of appeal

[4] The mother asserts the following grounds of appeal:

(1) The trial judge misapprehended the material evidence leading to an erroneous conclusion.

(2) The trial judge failed to provide sufficient reasons for her decision, because she did not indicate the basis for the findings of fact against the mother.

(3) The trial judge misapplied the applicable law.

(4) The trial judge relied on findings in Dr. O. Amitay’s parenting capacity assessment without considering the evidence “of the lack of its rigor”.

(5) The trial judge erred in making an order that delegated access to the discretion of the Society.

STANDARD OF REVIEW

[5] The standard of review on an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error.

[6] On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

[7] With respect to findings of fact, an appellate court “may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” (H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 4) [emphasis in original]. The Supreme Court of Canada went on to say (at para. 55) that the language of “palpable and overriding error” and “clearly wrong” found in the case law “encapsulate the same principle: an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”

[8] In child protection cases, appellate courts owe a high degree of deference to the trial judge’s decision. As the court stated in in P. (D.) v. S. (C.), 1993 CanLII 35 (SCC), [1993] 4 S.C.R. 141 at p. 192: “On issues of credibility, a trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings.” (See also Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at para. 33; Children's Aid Society of Toronto v. S.A.C., 2005 CanLII 43289 (ON SC), [2005] O.J. No. 4718 (S.C.) at paras. 10 and 12; aff’d 2007 ONCA 474).

[9] Finally, as the court stated in Children's Aid Society of Toronto v. V. L., 2012 ONCA 890 at para. 15; leave to appeal refused [2013] S.C.C.A. No. 1112: “the court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.”

Summary of decision under appeal

[10] The trial judge reviewed the history of the Society’s involvement with the mother and child. The first supervision order was made in December 2008. The Society’s involvement that led to the trial started with a protection application on February 9, 2016. A temporary supervision order was made placing the child in the mother’s care. This was based on concerns that the child was frequently absent and late for school and he struggled significantly with his academic progress. As well, the mother was unwilling to work with the Society or the school and there were concerns about her mental health and irrational statements.

[11] Problems continued as the Society unsuccessfully attempted to conduct home visits. The Society could not locate the mother and child. As a result, the child was placed in the Society’s temporary care on July 14, 2016.

[12] The mother and child returned to Toronto and on November 30, 2017, the child was found in need of protection on consent.

[13] In a March 26, 2018 order, Ms. Conway was approved as a caregiver and the child was placed in her care. The mother’s access was at the Society’s discretion. The placement failed because the mother and Ms. Conway did not comply with the terms of the access order. The child was returned to foster care in November 2018.

[14] On November 28, 2018, the Society filed an Amended Status Review Application seeking an order for extended care with access to the mother at the Society’s discretion. An order was issued on November 28, 2018 for interim Society care giving the mother minimum access of two times a week at the Society’s discretion.

[15] On February 14, 2019, the mother suffered a stroke and was hospitalized. During this time, the mother and child spoke by telephone and the mother told the child he would be coming home at the end of the month. The child threatened to kill himself and tried to harm himself.

[16] The mother remained in hospital or rehabilitation until late April 2019. Access resumed on April 30, 2019. In the summer, the duration of the access was increased to 1.5 hours and later to 2 hours. This was the access at the time of trial. By this point, the child had been in care for 33 months.

[17] The mother’s plan of care was the only alternative plan before the court. The trial judge found that there was insufficient evidence about the mother’s plan. It was unclear who would be part of the plan and it had been “difficult, nearly impossible for the C.C.A.S. workers to evaluate the mother’s plan.” The mother would not allow the Society workers to see her home and the Society was not even sure where she lived. The mother’s plan did not address her serious health concerns arising from the stroke in February 2019. There was no evidence from a doctor and no “safety plan regarding her precarious health”. It was unclear who would provide the mother with support in caring for the child. The trial judge described the mother’s plan as “unrealistic and unsupportable” and concluded that the mother “appeared to have no plan”.

[18] The trial judge reviewed the extensive and detailed evidence about the mother’s access to the child, both positive and negative. The mother often cancelled visits and directly and indirectly spoke to the child about matters that were not appropriate for a child. The trial judge acknowledged that the mother and child love each other very much.

[19] The trial judge also reviewed the extensive evidence about the mother’s concerning behaviour that Society workers observed over the history of their involvement with her. The mother’s behaviour and statements caused the workers to be concerned about her mental health.

[20] At trial, the mother filed two reports from Dr. Nadia Stroganova, a psychiatrist that the mother arranged to see. The doctor’s clinical impression of the mother was “adjustment disorder, cannabis use disorder; and, psychotic disorder probable”. In both reports, the doctor recommended a management plan that included treatment and medication. The trial judge accepted this evidence but reduced the weight because the doctor did not testify despite being served with a summons.

[21] The trial judge also considered Dr. Amitay’s June 2017 parenting capacity assessment submitted by the Society. Dr. Amitay testified and was cross-examined. It was Dr. Amitay’s recommendation that the mother would need extensive therapy before she could be considered suitable to have the child returned to her care. The mother openly rejected the recommendations.

[22] The trial judge found that the mother had not engaged in any therapy or counselling, despite several recommendations and referrals. The judge carefully considered the medical evidence and concluded that the actual medical diagnosis was “not as important as [the mother’s] behaviour, its impact on her parenting of the child and ability to meet his needs”. The mother refused to accept that she had a mental illness and needed treatment. She had no insight into her mental illness and the need for treatment. She could not recognize when her condition was deteriorating. As a result, the mother could not grasp that her mental health put the child at risk.

[23] Before and during the trial, the mother was found to be combative, disruptive argumentative and aggressive. The trial judge reviewed the evidence in support of this finding.

[24] The trial judge considered the child’s views and wishes. At the time of trial, the child wanted to return to live with his mother. This had been his consistent wish. The trial judge acknowledged this evidence but found that the views and wishes could not prevail. It was not in the child’s best interests to be retuned to the mother’s care given the risk of harm.

[25] After a careful and thorough review of the evidence, the trial judge found that the child could not be returned to his mother’s care, even with a supervision order. The mother had not taken the necessary steps to show that her behaviour had sufficiently changed, so that a supervision order could adequately protect the child. The mother continued to deny that her mental illness and her behaviour was a concern. As a result, the judge found that a supervision order was not an effective instrument to manage the risk of harm to the child, if the child was placed in the mother’s care.

[26] Turning to access, the trial judge ordered access at the Society’s discretion. The trial judge noted that while some of the mother’s behaviour during access was positive, her behaviour was also difficult, confrontational and even harmful to the child. Given the risks associated with her behaviour, the judge ordered access at the Society’s discretion. The judge found that this was in the child’s best interests. It allows the Society to change the access, if mother’s mental health and behaviour improves in the future and also allows the Society to suspend access if necessary.

The fresh evidence

[27] On consent, the current views and wishes of the child were presented to this court in the affidavit of Tashana Aziz, a Regional Clinical Supervisor at the Office of the Children’s Lawyer. Ms. Aziz met privately with the child on two occasions in August 2020, at the foster home where the child resides.

[28] The child considers his current foster family to be his family and has a strong connection to his foster parents, his school and community. He is doing well in school, has a good report card and attendance, and is proud of himself.

[29] He spoke about his other family that consists of his mother and relatives. The child sees his mother every week for a supervised visit and speaks to her on Mondays on the telephone. The visits are going well. The child likes the way “things are now and would not change it”. He prefers that visits with his mother continue to be supervised “because of the way she is now” since her stroke. He wants the judge to decide where he should live and is fine with either option. He says that he is happy with his foster parents and observes that his mother is happy because he tells her how “good things are” at the foster home.

[30] During the second interview, the child clearly stated his wishes: “I want to stay here (the foster home)”. He explained that he wants the judge to make a decision on where he will live because he does not want to upset his mom. He is worried about how she will react and that she often gives him “guilt trips”. The child also explained that in the past he said that he wanted to live with his mother because he did not like the foster homes he was living in. Now it is different because he likes his current foster home and finally feels settled and happy.

[31] While the mother seeks an order on this appeal placing the child in her care under a supervision order, this would be contrary to the child’s current views and wishes and not in the child’s best interests. As the trial judge stated, the “child is entitled to certainty, finality and to grow up in a safe and stable family where he is valued and protected from harm”. The current foster home, in the eyes of this child, provides what he is entitled to.

Analysis

Ground # 1 The trial judge misapprehended the material evidence leading to an erroneous conclusion

[32] The mother says that the reasons incorrectly reflect some of the evidence. This is an alleged error of fact. There is no basis for this ground of appeal. As set out below, the trial judge did not misapprehend material evidence. There is no palpable and overriding error of fact.

[33] The mother argues that the trial judge incorrectly stated that the mother and Ms. Conway did not comply with the terms of the access order. There was evidence to support the judge’s finding of fact. For example, when the child was in Ms. Conway’s care, the evidence of the Society worker, Ms. Gilliam, is that the mother was removing the child from school during the lunch hour and was attempting to influence the child’s school placement, when Ms. Conway was responsible for decision making. As well, at the end of Ms. Conway’s role, the relationship between her and the mother broke down.

[34] The trial judge found that the grandmother’s evidence was “very sparse on details” about what she would do to support the mother. The mother says that this is not accurate. Her position is not supported by the evidence. The grandmother testified that she intended to take the child to soccer, shopping centers and movies, and would make sure he attended Kumon. Aside from this evidence, the grandmother provided very few details about the role she would play in child’s life, if the child was returned to the mother’s care.

[35] The mother suggests that the judge misconstrued the mother’s assertion that she was highly favoured by the Lord, when this was described as an example of the mother’s mental health. There was ample evidence including this statement to support the judge’s finding that the mother presents herself in a “grand/grandiose way”. The trial judge lists examples of the mother’s observed “behaviour and statements” as provided in evidence of the various Society workers, supervisors and access supervisors. Ms. Gilliam, the Society worker, testified that the mother told her several times that she was highly favoured by the Lord. Taken together with the extensive evidence of the mother’s behaviour and the Society’s concerns, the trial judge did not misconstrue the mother’s statement.

[36] The mother argues that the trial judge incorrectly stated that the Society worker was unable to see her current home. The Society worker may have seen where the mother lived in the past but there was ample evidence to support this finding of fact.

[37] The mother says that the trial judge painted a picture of her behaviour at the child’s school that is not supported by the evidence. The trial judge had evidence to support the finding of fact. For example, the mother’s unwillingness to work with the school led to the February 2016 Supervision Order and Dr. Stroanova’s first report contained a recital of the mother’s problems with the school.

[38] There was also evidence to show the mother’s unwillingness to seek therapy and counselling. The trial judge did not misapprehend this evidence.

Ground # 2 - The trial judge failed to provide sufficient reasons for her decision, because she did not indicate the basis for the findings of fact against the mother

[39] There is no basis for this ground of appeal. The trial judge’s findings of fact are supported by numerous references to the evidence and the judge clearly explains the basis for her decision. The mother seems to suggest that because the trial judge does not identify the specific source for each finding of fact that the reasons are insufficient. I reject this argument. The mother is not saying that there is no evidence. To the contrary, the evidence that supports the findings of fact was overwhelming. For example, when the trial judge listed all of the problems with the mother’s access, she specified that the evidence came from at least four Society workers who had supervised over 100 visits during a period of 33 months.

Ground # 3 - The trial judge misapplied the applicable law

[40] The mother says that the trial judge erred in law because there is no reference in the reasons to s. 97 (c) of the CYFSA. This section states that where the court “makes an order under this Part, the court shall give … a statement of the plan of the child’s care that the court is applying in its decision”.

[41] While the wording of s. 97(c) is not included in the Reasons, it is obvious that the trial judge complied with this mandatory requirement. In the Reasons, the judge discussed the Society’s plan of care and explained why this option was in the child’s best interests. The Reasons are also clear that the mother’s plan of care was not viable and would expose the child to risk of harm.

Ground # 4 - The trial judge relied on findings in Dr. O. Amitay’s parenting capacity assessment without considering the evidence “of the lack of its rigor”

[42] This ground of appeal deals with the trial judge’s weighing and acceptance of Dr. Amitay’s evidence.

[43] Dr. Amitay conducted a parenting assessment. He testified at trial for two days and was cross-examined. The mother says that the trial judge’s assessment of this evidence lacks rigour because there is not enough detail in the Reasons about the doctor’s evidence. As well, she says that the trial judge does not address the mother’s concerns about the assessment methodology used to support the doctor’s opinion (that someone other than Dr. Amitay, who is not psychologist, did the initial interview and administered two of the tests).

[44] The trial judge refers to Dr. Amitay’s “clear recommendation that [the mother] would need extensive therapy before she could be considered suitable to return the child to her care.” When the Reasons are viewed as a whole, it is apparent that the trial judge accepted Dr. Amitay’s opinion because the mother’s refusal to seek treatment is described as a risk.

[45] I accept that the Reasons do not provide an in depth analysis of the doctor’s evidence or consider the issue about the methodology used. However, it is clear that the judge conducted a careful analysis of the mother’s behaviour that put the child at risk. The judge reviewed the extensive evidence about her combative, disruptive, argumentative and aggressive behaviour, that the Society workers observed. In addition, the judge reviewed examples of the mother’s behaviour that caused the Society workers to have concerns about the mother’s mental health.

[46] The trial judge assessed this evidence. Her decision was primarily anchored in the overwhelming evidence of the mother’s behaviour that put the child at risk and the mother’s refusal to correct her behaviour. At para. 59 the judge states:

Different medical sources at trial provided different diagnoses for the mother. The mother’s actual diagnoses is not as important as her behaviour, its impact on her parenting of the child and her ability to meet his needs.

[47] The mother has not shown that the trial judge made a palpable and overriding error of fact.

Ground #5 - Erred in law in delegating all future access decisions to the Society

[48] During the hearing of the appeal, this ground of appeal was resolved. The agreement reflects the current views and wishes of the child.

[49] On consent, the access order of Justice Curtis is varied as follows: The mother shall have access to the child at least once a week, in person, in accordance with the views and wishes of the child. Access shall be supervised in the Society’s discretion. The child is the access holder.

conclusion

[50] In summary, I make the following orders:

(1) The appeal is dismissed.

(2) On consent there is no cost order.

(3) The access order of Justice Curtis is varied as follows: The mother shall have access to the child at least once a week, in person, in accordance with the views and wishes of the child. Access shall be supervised in the Society’s discretion. The child is the access holder.

Released: October 2, 2020

COURT FILE NO.: FS-20-16358

DATE: 20201002

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.P.B.

Appellant

– and –

cATHOLIC cHILDREN’S AID Society OF TORONTO

Respondent

– and –

Office of the Children’s Lawyer

Respondent

REASONS FOR JUDGMENT

C. Horkins J.

Released: October 2, 2020

N.P.B. v. Catholic Children’s Aid Society of Toronto, 2020 ONSC 5774

Case Summary

introduction

grounds of appeal

STANDARD OF REVIEW

Summary of decision under appeal

The fresh evidence

Analysis

Ground # 1 The trial judge misapprehended the material evidence leading to an erroneous conclusion

Ground # 2 - The trial judge failed to provide sufficient reasons for her decision, because she did not indicate the basis for the findings of fact against the mother

Ground # 3 - The trial judge misapplied the applicable law

Ground # 4 - The trial judge relied on findings in Dr. O. Amitay’s parenting capacity assessment without considering the evidence “of the lack of its rigor”

Ground #5 - Erred in law in delegating all future access decisions to the Society

conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1