Children’s Aid Society of Toronto v. M.L. and H.S.
COURT FILE NO.: FS-19-13833
DATE: 20210407
WARNING
The court hearing this matter directs that the following notice 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:
87 …
Order excluding media representatives or prohibiting publication
(7) 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.
Prohibition re identifying child
(8) 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) 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 …
Offences re publication
(3) 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.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto (Respondent in Appeal) Applicant
– and –
M.L. and H.S. (Appellants) Respondents
Sherri Smolkin, for the Applicant (Respondent in Appeal)
Avi Baratz, for the Appellant M.L.
David Miller for the Apellant H.S.
HEARD: January 18, 2021
Shore, J.
[1] This is an appeal about two young children, A.L., born in 2017, and Ab.L., born in 2018, (“the children”), who were placed with the Children’s Aid Society of Toronto (“the Society”) under extended society care, by the final order of Justice Paulseth, dated October 8, 2019. The appellants are the children’s biological parents, H.S. (“mother”) and M.L. (“father”) (or collectively “the parents”). The respondent on this appeal is the Society. The parents are seeking an order setting aside the extended society care order, and that the matter be remitted to the Ontario Court of Justice for a new trial before a different judge on an expedited basis. Specifically, the Appellants submit that the trial judge erred by failing to consider the strengths of placing the children in the care and control of a former foster parent, namely Ms. W.
[2] For the reasons set out below, the appeal is dismissed.
Procedural History-How did we get here?
[3] The case started on August 3, 2018, when the young/infant children were brought to a place of safety from the mother’s care by the Society. They have remained in the Society’s care since that time (approximately 2.5 years as of the date of this appeal).
[4] On December 13, 2018, Justice Curtis made a statutory finding, regarding the children and found the children to be in need of protection under subsections 74(2)(a) and (b) of the Child, Youth and Family Services Act, (“CYFSA”) 2017, S.O. 2017, c. 14, Sched. 1, as amended.
[5] On February 19, 2019, Justice Curtis made a disposition order of five-months interim society care with access by the mother, at the discretion of the Society, for a minimum of twice per week, provided she attend consistently, and with access by the father at the discretion of the Society.
[6] At both hearings before Justice Curtis the evidentiary basis for the disposition order was set out in a Statement of Agreed Facts.
[7] A status review application was brought by the Society on July 10, 2019, and was amended on August 7, 2019, to seek extended society care, with access to the mother at the discretion of the Society, a minimum of once per month, and no access to the father.
[8] In September 2019, the parties participated in a four-day trial of the Amended Status Review Application. By that time, the children had been in care for a period in excess of the statutory limit of one year for children of their age and were in need of a permanent plan.
[9] The mother was represented by counsel throughout the course of the child protection proceedings and at trial. The mother filed an Answer and Plan of Care seeking an order placing the children in the care and custody of their former foster parent, M.W., subject to Society supervision with the terms and conditions.
[10] Ms. W was the children’s foster mother from August 4, 2018 until approximately December 4, 2018 (four months). She was a foster parent with Milestone Foster Homes. The children were removed from Ms. W’s care due to concerns that Milestone had with Ms. W’s parenting of the children, which concerns were not ultimately verified.
[11] By the date of the hearing, the children had been out of Ms. W’s care for ten months and placed in two subsequent foster homes.
[12] The children’s father did not file an Answer or Plan of Care and was noted in default. He was granted limited rights of participation at trial and supported the mother’s position. The father attended two out of the four days of trial and did not present any evidence. Neither parent was seeking that the children be returned to their own care and custody.
[13] The Society sought an order for extended society care and presented evidence from multiple Society workers involved with the parents, the children, and with Ms. W, as well as from other professionals involved with Ms. W.
[14] Justice Paulseth found that the children continued to be in need of protection, and it was in the best interest of the children to be placed in extended society care with a view towards permanency through adoption. The mother and father are appealing this order, not with respect to the finding that the children continue to be in need of protection, but because they would like the children placed back in the care of one of the children’s foster mothers, namely Ms. W.
[15] The Society has been unable to place the children for adoption due to the outstanding appeal.
Grounds of Appeal
[16] The appellants submit that the trial judge made a palpable and overriding error by failing to consider any of the strengths of Ms. W’s plan. Specifically, the parents submit that the Trial Judge erred in the application of sections 37(3) and 101(4) of the CYFSA in not conducting a proper best interest of the child analysis, which would have required consideration of the strengths and weaknesses of Ms. W’s plan. The parents submit that the Reasons for Judgement do not consider or weigh the strengths of Ms. W’s plan.
[17] The Appellants acknowledge that the trial judge considered whether a supervision order with Ms. Wwas in the best interest of the children, but only reviewed the weaknesses of the plan, without making mention of any strengths or any balancing of strengths against weaknesses.
[18] The Society submits that the appeal is without merit and should be dismissed.
Standard of Review:
[19] The parties agree on the standard of review.
[20] For questions of law the standard of review is that of correctness. Where there has been an error of law, the appellate court may replace the trial judge’s decision with their own.
[21] For questions of fact, the standard of review is that of palpable and overriding error. A palpable error is one that is obvious, plain to see, or clear. An overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact. Trial courts are in an advantageous position when it comes to assessing and weighing the evidence.
[22] For questions of mixed law and fact the standard of review, where the legal principle is readably extricable the standard of correctness will apply, otherwise the standard of palpable and overriding error will apply. As set out in Children’s Aid Society of Niagara Region v. J.C., 2007 CanLII 8919 (ON SCDC), 2007 O.J. No. 1058 (SCJ) at par 5:
In regard to a mixed question of law and fact, if it involves the trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error. If it involves the trial judge’s interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.
[23] With respect to grounds of appeal relating to a trial judge’s finding of facts, the degree of deference to factual determinations of a trial judge is particularly compelling in child protection cases. Trial judges have an overwhelming advantage in the assessment of the credibility of a witness. Family law cases are often fact based and fact driven. Further, the OCJ is akin to a specialized tribunal and therefore some defence should be given to the trial judge.
Appellants’ position:
[24] The appellants submit that the trail judge’s failure to consider or include positive aspects of Ms. W’s plan in determining the best interest of the children, amounts to a palpable and overriding error, or what is sometimes referred to as a “processing error”: see Waxman at par 334. This type of error can occur when a trial judge fails to consider relevant evidence. The appellants argued that the trial judge made a processing error by failing to consider the positive aspects of Ms. W’s plan and did not include these positive aspects in the decision.
[25] The appellants also submit that the judge’s failure to proper apply the law, in that the trial judge failed to consider the strengths of the plan, as required under the CYFSA amounts to an error of law, where the standard of review would be one of correctness.
[26] The appellants submit that where reasons for judgement are so deficient that they effectively deny meaningful appellate review on a “palpable and overriding” standard, the inadequacy of the reasons may in and of itself justify appellate intervention: see for example Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 at par 94 and Waxman at par 307.
[27] The appellants also submit that the judge failed to include or consider specific facts. However, the ‘facts’ referred to by the appellants presupposes that the judge made findings of facts consistent with the appellants narratives. However, the judge made findings of facts that contradict the ‘facts’ the appellants submit should have been considered and included by the judge. This will be set out in more detail below.
Analysis:
Did the judge make an error by failing to list strengths in Ms. W’s plan?
[28] In the appeal before this court, the Appellants submit that the trial judge only reviewed the weakness of Ms. W’s plan, without making reference to the strengths of the plan and thus made a “processing error”. The appellants bear the onus of demonstrating a failure to consider certain evidence or facts.
[29] First and foremost, the absence of reference to specific evidence in reasons for a decision does not establish that the trial judge failed to consider the evidence. The Court of Appeal has clarified that “[r]easons for judgement are written after the trial judge has analyzed the evidence, made the necessary credibility assessments and findings of fact, and reached her conclusions. Reasons for judgement are offered as an explanation for the result arrived at by the judge. They explain the result of the reasoning process. They are not exhaustive contemporaneous notes of the process itself”: see Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765 at par 283. The failure to refer to evidence in the course of careful and detailed reasons for judgement suggests, not that the trial judge ignored that evidence, but rather that she did not regard that evidence as significant: Waxman at par 344.
[30] In considering factors relevant to the best interests of a child, a trial judge is not obligated to discuss every piece of evidence in detail, or at all, when explaining the reasons for their decision to award custody to one person over an another. Omission is only a material error 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 their conclusion. In reading the trial judge’s reasons for judgement, I do not find that the judge forgot, ignored or misconceived the evidence. I find the decision to be well-reasoned, supported by the evidence and facts, as determined by the trial judge.
[31] At paragraph 70 of the reasons, the trial judge refers to section 101(4) of the Act, which requires a court to consider alternative placement with a relative, neighbour, or other member of the child’s community or extended family, with their consent, before considering society care and custody.
[32] The trial judge, at paragraph 72 of the Reasons, states that “[a] comprehensive best interests analysis required consideration of the strengths and weaknesses of every option” (emphasis added). The trial judge carries on with the analysis at paragraphs 76 and 77 as follows:
There is no dispute that the children remain at risk and cannot be returned to the mother. Mother agrees that she has not been able to successfully deal with her issues of addiction, transiency, and general lifestyle. Father’s lengthy criminal record and lack of access too the girls contribute to his inability to form a realistic plan
The court must carefully examine the community option proposed by the mother to place both girls with the former foster mother and foster father. (emphasis added)
[33] The trial judge was clearly aware of the need to review the strengths and weaknesses of Ms. W’s plan. But did the trial judge fail to consider the strengths, as submitted by the appellants?
[34] It is clear from the reasons that the trial judge considered Ms. W’s plan and considered the plan as an option. The trial judge included a summary of some of the evidence given at trial reviewed in more detail below), and specifically the evidence relied on to support the conclusion as to why the option to place the children in Ms. W’s care was not in the best interest of the children irrespective of or despite the strengths. The trial judge made findings of facts that ultimately led the judge to the conclusion that it was not in the best interest if the children to be placed in Ms. W’s care.
[35] The Court of Appeal has released a number of cases recently, addressing the issue of “factual data dump” and specifically the need to synthesize the evidence and “not to be a court reporter”: see Welton v. United Lands Corporation Limited 2020 ONCA 322, 2020 CarswellOnt 7284 paragraphs 56-62:
56 I conclude by expressing a concern about the length of the reasons for decision in this case, which is reflective of an unfortunately growing trend, of which this is not the worst example, but it is the one before us.
57 Trial judges attend to the evidence in light of the relevant law, listen to it and think about it, draw appropriate inferences, distill the key evidence, make the factual findings, apply the law to the findings, and communicate the basis for the decision to the parties through the reasons. Of these various tasks, simply being present to receive the evidence is only a trial judge's first step on the path to the decision.
58 More specifically, in their reasons trial judges identify the key issues; find the facts relevant to the issues; assess credibility and reliability where there is conflict; set out the chain of reasoning; make the decision; and then write the reasons to clearly communicate the decision. All of this is necessary for the reasons to be of acceptable quality and for there to be a meaningful right of appeal. (All of these elements are present in the reasons in this case but are somewhat hard to discern in the expanded text.)
60 It is important for trial judges to focus the analysis on the live issues that will decide the case. Helpful guidance can be found in the somewhat analogous function that trial judges perform in crafting criminal and civil jury instructions: "The obligation to review the substantial parts of the evidence and relate it to the issues that ripen for decision by the jury imposes no duty upon the trial judge to review all the evidence. The role of the trial judge is to decant and simplify" (internal citations omitted): R. v. Saleh, 2013 ONCA 742 (Ont. C.A.), at para. 142, per Watt J.A. There is, to emphasize, no need to recite all of the evidence, even the irrelevant, or to refer to every argument made by every party, no matter how unhelpful: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 (S.C.C.)at paras. 11-12, 35-57; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (S.C.C.), at para. 128.
61 Appellate courts see reasons for decision that do not address the evidence and the arguments and are criticized as conclusory, on the one hand, and decisions that leave nothing out, on the other hand. The task of a trial judge is to find the golden mean, to "decant and simplify," to synthesize the evidence and make the necessary findings; the task is not to be a court reporter.
62 Many overly long decisions, including this one, contain what I would call a "factual data dump." Pages 5-79 consist of a witness-by-witness account of examination in-chief, cross-examination, and re-examination. The analysis of the evidence starts at para. 394 on p. 79 and it repeats some of the evidence previously reviewed, adding to the length.
[36] If a trial judge were required to refer to every piece of evidence and how each piece of evidence was weighed against other evidence, writing trial decisions would become so onerous that it could very well bring the justice system to a halt and thereby prevent access to justice.
The Evidence:
[37] From reading the decision, I cannot conclude that the trial judge failed to properly consider Ms. W’s plan or failed to consider the evidence presented at trial. The trial judge gave sufficient reasons to identify the competing plans and demonstrate the rationale for the decision, including providing sufficient evidence to understand the basis for the decision.
[38] With respect to reviewing the evidence, starting at paragraph 44 of the reasons under the heading “The Former Foster Parents’ Plan”, the judge carefully set out the evidence given by various witnesses, which the judge later relies on to make findings of fact and on which the judge concludes that returning the children to Ms. W’s care is not in the best interest of the children. Some of the evidence included, but is not limited to the following:
a. The trial judge set out the concerns raised by the children’s service worker, including Ms. W failing to follow up on recommendations made by the worker, missing doctor appointments, poor communication with the worker, the children appearing to be more relaxed at their new foster home and receiving more stimulation than with Ms. W.
b. The trial judge set out the evidence of the Milestone manager and the direct support resource person, including that timely and accurate communication with Ms. W was an ongoing issue, Ms W’s failure to attend medical appointments with the children, Ms. W disclosing confidential information about a child in her care to a third party, failure to disclose a major medical event with Mr. M., concern that there was discord between Ms. W and Mr. M., that Ms. W was having problems with a third foster child in her care, and that both girls had diaper rashes and no medical advice was sought by Ms. W.
c. Information given by Ms. W to the workers was contradicted by other information or third parties.
d. The kin department rejected Ms. W and Mr. M, as kith placement for reasons that included that they were slow to respond to calls and messages, they did not agree with the concerns raised by Milestones, lying with respect to the number of medical appointments missed, providing contradictory information to different workers, failing to disclosure medical concerns for both her and Mr. M., and Mr. M.’s lack of commitment to the plan.
e. There were concerns raised that Mr. M. was not invested in the fostering program and did not meet with the service worker.
f. Mr. M. did not attend the hearing with the trial judge.
g. During her evidence Ms. W acknowledged lying about re-scheduling medical appointments, lying about having permission from the society to take the children to a cottage, failing to advise that she was diagnosed with anxiety and depression after she was a licenced foster home, that she had no family doctor since 2017, there were problems with her relationship with Mr. M., failing to advise the Society or Milestones that Mr. M. had a stroke in 2018 and had to take a month off work, and failing to advise that she had problems dealing with the 9 year old foster child in her care.
h. Ms. W presented as pleasant and likeable.
i. Three previous foster placements with Ms. W went relatively well and those children appeared happy and comfortable most times.
[39] The appellants refer to specific evidence or facts which they submit should have been referred to or weighed by the trial judge as strengths to Ms. W’s plan. However, the trial judge made findings of facts that did not support the ‘facts’ being referred to by the appellants in their submissions. The trial judge reaches different conclusions on the evidence at trial, negating the ‘facts’ or strengths relied on by the appellants. By way of example:
a. The appellants submit that Ms. W demonstrated a pattern of cooperation and openness with the Society. The judge found that Ms. W was not forthcoming in her communications with the Society.
b. The appellants submit that there was no evidence of any marital issues between Ms. W and Mr. M. that would affect their ability to parent. The trial judge found that there was serious marital discord between Ms. W and Mr. M.
c. The appellants submit that there was no evidence of medical or mental health issues which would affect their ability to care for the children. The trial judge found that Ms. W suffers from “severe” mental health issues, and PTSD that was only disclosed during the court of the trial.
[40] Therefore, in some instances it is not that the trial judge failed to consider or weigh the strength, insomuch as the judge made finding of facts that did not support the alleged strengths to Ms. W’s plan. As set out above, the degree of deference to factual determinations of a trial judge is particularly compelling in child protection cases. The appellants did not appeal the findings of facts.
[41] Carrying on with the appellants’ submissions that the judge failed to consider or weigh the strengths, from paragraphs 78 to 84 the trial judge goes through an analysis as to why the option or plan to place the children with Ms. W was not in their best interests. The trial judge specifically states at paragraph 83 that “[a] hard look at this plan reveals….” and then goes on to set out the concerns that arose as a result of the review of the plan. These concerns include but are not limited to the following:
a. Ms. W suffers from “severe” mental health issues, depression, anxiety, and PTSD, which were not disclosed in a timely manner to the society or her resource worker and then only discovered by accident. The PTSD diagnosis was only disclosed at the trial.
b. Ms. W did not disclose Milestone of her illnesses when diagnosed nor did she advise them of her husband’s heart event, even though she was required to communicate same. Ms. W gave testimony in court with a dog in her arms, indicating that she needed this accommodation.
c. Ms. W and her husband had serious marital issues.
d. Mr. M. did not attend the hearing.
e. Ms. W lied about having permission to take the children to the cottage and about attending re-scheduling a doctor’s appointment.
f. Ms. W and Mr M. had a great deal of difficulty with a nine-year old child in their care at the same time as A and Ab were in their home, leading to Ms. W locking herself and the children in the bathroom and locking the nine-year old child out as a safety measure.
g. The judge also found Ms. W not to be a credible witness, giving further reason why placing the children in her care would not be in the best interest of the children.
[42] Finally, when reviewing each of the factors to be considered in determining the best interest of the child set out in section 74(3) if the Child, Youth and Family Services Act, the judge continued to refer back to Ms. W’s plan, and why placement with Ms. W did not meet the best interest of the children: see paragraphs 85 though 91.
[43] As set out above, the trial judge’s finding of fact and finding of credibility and weighing of evidence are to be given a high degree of deference and the applicable standard of review in this regard is that of palpable and overriding error. I do not find that the judge made a palpable and overriding error.
[44] The trial judge followed the correct legal pathway on a status review, found that the children continued to be in need of protection and applied the correct law, namely the best interests test, to the facts before her. In doing so, the trial judge made findings of fact that were open to her based on the evidence, weighed the evidence and determined what factors were relevant as she was entitled to do and made no palpable and overriding error.
[45] I do not find that there were any palpable and overriding errors made by the trial judge with respect to Ms. W’s credibility, the weighing of evidence or the finding of facts. I do not find that the trial judge failed to consider the evidence presented at trial.
[46] The Appeal is dismissed.
Justice S. Shore
Released: April 7, 2021
COURT FILE NO.: FS-19-13833
DATE: 20210407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Toronto (Respondent in Appeal) Applicant
– and –
M.L. and H.S. (Appellants) Respondents
REASONS FOR JUDGMENT
S. Shore, J.
Released: April 7, 2021