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.
Court File and Parties
COURT FILE NO.: FS-21-22863 (Toronto) DATE: 20220317
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Toronto Applicant (Respondent on appeal) – and – D.A. and B.K. Respondents (Respondent on appeal / Appellant)
Counsel:
Rachel Buhler, for the Applicant (Respondent on appeal) Mira Pilch, for D.A. [mother], Respondent (Respondent on appeal) B.K. [father], Respondent (Appellant), acting in person Tammy Law, for the children, CK and JK
HEARD at Toronto: February 14, 2022, by video conference
R. A. Lococo J.
Reasons for Judgment
I. Introduction
[1] The appellant B.K. appeals from the final order of Justice Manjusha B, Pawagi of the Ontario Court of Justice dated April 8, 2021 and amended May 4, 2021, with reasons set out in Reasons for Judgment dated April 8, 2021 (“trial reasons”) and Reasons for Judgment dated May 4, 2021 (“contempt reasons”).
[2] The final order was made following a ten-day trial of a protection application brought by the Catholic Children’s Aid Society of Toronto (“Society”) under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). The children who are the subject of the order are CK (age 13) and JK (age ten).
[3] The appellant is the children’s father. He was previously in a domestic relationship with the respondent D.A., the children’s mother.
[4] At the beginning of the trial, separate counsel represented each of the parents and the children. Part way through the trial, the appellant father and his counsel parted company, after which the appellant father acted on his own behalf.
[5] Under the trial judge’s final order, the children were placed in the care and custody of the respondent mother subject to the Society’s supervision for a period of 12 months. The order includes terms and conditions reflecting protection concerns relating to the respondent mother’s previous use of physical discipline with the children. The final order also provides that the appellant father have parenting time with the children that includes (i) three out of four weekends (Friday to Sunday) when the children are attending school and (ii) alternating weeks during online learning and school summer holidays.
[6] The appellant father appeals, acting without counsel. He alleges that the trial judge made errors of fact and law in her decision. While not included as a legal ground of appeal, his Notice of Appeal also raises complaints about the conduct of the Society and the Office of the Children’s Lawyer (“OCL”) during their involvement with this matter. The appellant father seeks an order overturning the trial decision and placing the children in his care and custody subject to Society supervision for a period of six months. He also seeks conditions on the respondent mother’s access to the children to address protection concerns relating to her previous use of physical discipline. As well, he seeks an order granting him custody of the children under s. 102 of the CYFSA.
[7] The Society, the respondent mother and the OCL have responded to the appeal, arguing that the appeal is without merit and should be dismissed. They say that the trial judge made findings of fact that are well supported by the trial evidence, made no legal errors, and made no errors in applying the law to the evidence.
[8] For the reasons below, I am dismissing the appeal.
II. Background facts
[9] The factual background relating to the parents and the Society’s involvement with the children is set out in some detail in the trial reasons, the contempt reasons and elsewhere in the appeal record.
[10] By way of summary, the parents both immigrated separately to Canada as adults, the mother from Tanzania and the father from Kenya. They both work full time, the appellant father as an engineer and the respondent mother as a personal support worker in a children’s hospice. In the trial reasons, at para. 17, the trial judge made laudatory reference to both parents’ “history of working very hard and … [returning] to school at various points to upgrade their qualifications.” She also made positive reference to the parenting skills of both parents, noting the absence of protection concerns relating to the children’s care by either parent, other than the concerns arising from the respondent mother’s previous use of physical discipline and the appellant father’s inappropriate involvement of the children in parental conflict and the litigation process: trial reasons, at paras. 3-4; contempt reasons, at paras. 16-22.
[11] The parents met in Canada in 2006 and began a relationship. They began living together in 2008 after the birth of their first child. Their second child was born in 2011. After a brief separation, the parents continued living together until their final separation in 2015.
[12] The parents’ 2015 separation occurred after the appellant father was arrested and charged with assaulting the respondent mother. He subsequently pleaded guilty to one count of assault and received a conditional discharge. As a result of the assault charge, a different child protection agency became involved at that time, and also investigated the appellant father’s allegations that the respondent mother physically disciplined the children and engaged in forced excessive religious practices involving the older child. The agency did not verify the appellant father’s allegations but verified concerns regarding parental conflict.
[13] Following their separation, the parents were involved in family litigation, which was resolved on consent in 2016 and eventually incorporated into the consent final order of Goodman J. of this court dated October 8, 2018. The respondent mother was granted sole custody of the children, with access to the appellant father every other weekend from Friday afternoon until Sunday evening and expanded access during the summer months. [^1]
[14] The Society’s involvement with the children began on November 30, 2018, when a Society worker and two police officers attended at the respondent mother’s residence after a complaint about alleged physical discipline of the children. At that time, the respondent mother’s two sisters were also residing at the residence, along with the daughter of one of them, who was the one who had made the complaint at school.
[15] The three children were removed from the residence and CK and JK were placed in the appellant father’s care. The police interviewed the children, and on December 10, 2018, the respondent mother was charged with two counts of assault with a weapon and three counts of permitting a child to suffer abuse. The respondent mother’s sisters were also charged.
[16] The respondent mother was released on bail, under conditions that prohibited her contact with her children except at the Society’s direction or through legal counsel. Commencing January 3, 2019, the respondent mother had supervised visits with her children at the Society offices, and also had two weekend visits at her brother’s home. The bail conditions were subsequently varied on consent to clarify that the respondent mother was permitted to have contact with the children in the Society’s direct presence and supervision or through legal counsel.
[17] On January 31, 2019, the Society brought a child protection application, seeking an order to place the children in the care and custody of the appellant father for a period of six months subject to the Society’s supervision. At the first appearance, a temporary order was issued on a without prejudice basis, placing the children in the appellant father’s care subject to the Society’s supervision, with access to the respondent mother in the Society’s discretion, with a minimum of two visits per week. The OCL was appointed to represent the children.
[18] On July 24, 2019, following a temporary care and custody hearing, Finlayson J. confirmed the terms of the previous without prejudice temporary order, which placed the children in the father’s care and custody on an interim basis subject to the Society’s supervision, with access to the respondent mother in the Society’s discretion. In his oral reasons, Finlayson J. accepted the respondent mother’s submission that at the time of the Society’s intervention, she had sole charge of the children for purposes of s. 94(2) of the CYFSA. Therefore, the motion judge would be required to return the children to the respondent mother’s care “unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the [children are] likely to suffer harm and that the [children] cannot be protected adequately” by an order placing the children in the respondent mother’s care with or without Society supervision: see CYFSA, s. 94(4). However, contrary to the submissions of the respondent mother, the Society and the OCL, Finlayson J. declined to return the children to respondent mother’s interim care, noting problematic bail conditions and the fact that protection concerns relating to the respondent mother were still in the process of being addressed.
[19] On March 9, 2020, the Crown withdrew the criminal charges against the respondent mother upon her entering into a two-year peace bond, under which her contact with her children would be in accordance with a family court order. The Society then brought a motion in the protection proceedings, seeking an amendment to the previous temporary order to allow the respondent mother to have unsupervised access to the children. Finlayson J. heard that motion on April 21, 2020. By temporary order dated April 23, 2020, Finlayson J. granted the mother unsupervised access to the children, expanding to every weekend by June 2020. By agreement between the parents, the children resided alternate weeks with each parent during the summer of 2020.
[20] In October 2020, the Society amended its child protection application to seek an order to place the children in the care and custody of the respondent mother (instead of the applicant father), subject to the Society’s supervision, for a period of six months, with access to the appellant father.
[21] In a Decision of the Child and Family Review Board dated November 10, 2020, following written submissions from the appellant father and the Society, the Board addressed a complaint by the appellant father under s. 120 of the CYFSA relating to the conduct of the Society and the OCL with respect to the protection application. Among other things, the appellant father complained that during the protection proceedings, the Society changed its position several times with respect to the care of and access to the children and was unfairly favouring the respondent mother’s position over that of the appellant father, to the children’s detriment.
[22] A complaint in respect of a service sought or received from the Society may be reviewed by the Board as described in s. 120(4) of the CYFSA unless the subject of the complaint is “an issue that has been decided by the court of is before the court”: see s. 120(8)(a). In its decision, the Board found that it would have jurisdiction to review a service-related complaint against the Society (but not the OCL), since the appellant father’s complaint included allegations that the Society failed to provide the appellant father with the opportunity to be heard when decisions affecting his interests were made: see CYFSA, ss. 15(2) and 120(4)3. However, the Board found that it did not have jurisdiction to review the appellant father’s complaint since the issues he raised were not service-related and were already before the court in the protection proceedings. Accordingly, the Board declined to review the complaint.
[23] The trial of the Society’s protection application was heard over a ten-day period in March 2021. On April 8, 2021, the trial judge provided her decision and reasons, as outlined above.
[24] On April 9, 2021, the appellant father filed a Notice of Appeal, which had the effect of automatically staying the trial judge’s order for ten days: see CYFSA, s. 121(3). The appellant father returned the younger child (but not the older child) to the respondent mother’s care on April 18, 2021. The Society served the appellant father with a contempt motion on April 20, 2021. He returned the older child to the respondent mother’s care the following evening.
[25] At the contempt hearing before the trial judge on April 28, 2021, the Society (supported by the appellant father) sought to withdraw the contempt motion, since the appellant father was in compliance with the final order by the hearing date. The respondent mother argued that the motion should proceed and that the appellant father should be found in contempt. She expressed concern that the appellant father had needlessly involved the children in the litigation process to the children’s detriment, including by discussing his appeal plans with the children and providing the trial judge’s reasons to the older child for his review as “homework” after returning him to the respondent mother’s care. As well, in response to a question from the trial judge, the appellant father stated his intention to provide the trial judge’s written decision on the contempt motion to the older child once released unless he was expressly prohibited from doing so. The children’s counsel expressed similar concerns about the appellant father’s conduct but took no position with respect to a contempt finding.
[26] In her contempt reasons dated May 4, 2021, the trial judge declined to find the appellant father in contempt but agreed with the concerns raised by the respondent mother and the children’s counsel relating to his involvement of the children in the court process. The trial judge found that the appellant father’s actions reinforced concerns she raised in her trial reasons that “the father does not support the children’s relationship with their mother” and that the children are being subjected to the “pressures of the parental conflict which is exacerbated by the litigation”: contempt reasons, at para. 18. Reflecting those concerns, the trial judge added conditions to the final order prohibiting the appellant father from discussing court matters with the children or sharing court documents with them, including any decisions: contempt reasons under “Final order”, paras. 3 and 4.
[27] In the contempt reasons, at para. 24, the trial judge also expressed concern that the Society was interpreting the access provisions in the final order in a manner that provided the appellant father with more access time than was warranted under the order. She therefore made clarifying amendments to the access provisions to address that concern: contempt reasons, at para. 27.
[28] In an endorsement following an appeal appearance on May 17, 2021, Nakonechny J. noted that the appellant father had applied for a transcript of the contempt hearing for use on the appeal (with completion expected in August) and would be applying for legal aid to obtain counsel for the appeal. Nakonechny J. scheduled a status hearing for September 20, 2021 and ordered the appellant father to forthwith order a transcript of the contempt hearing.
[29] On June 11, 2021, the appellant father married his current spouse. The appellant father seeks to have her affidavit sworn December 14, 2021, admitted on the appeal as part of his fresh evidence motion, as discussed further below.
[30] In an endorsement following the status hearing on September 20, 2021, Shore J. noted that the order under appeal was set for review (at an Ontario Court status hearing) in early April 2022. She also noted that the transcripts for the appeal had been completed by August 1, 2021, but not served on the Society or the OCL. The appellant father asked for an adjournment of the appeal status hearing to permit him to apply for legal aid, since he had not yet done so. Shore J. scheduled a further status hearing for November 15, 2021. She ordered that there would be no further adjournments, and that at the next attendance, the appeal would be scheduled for hearing or struck for delay.
[31] At the status hearing before Shore J. on November 15, 2021, the appellant father appeared with duty counsel and was provided the opportunity to consult duty counsel before proceeding with the hearing. Shore J. again noted her concern about delay in moving the appeal forward. She set the appeal hearing for February 14, 2022, peremptory on the appellant father, and set a timetable for the delivery of factums.
[32] On December 14, 2021, the appellant father brought urgent motions relating to the appeal. He sought leave to (i) file fresh evidence on the appeal, (ii) have the children testify as to their wishes, (iii) proceed with new grounds for appeal, and (iv) file a 45-page appeal factum (the usual limit being 30 pages). The motions were referred to Shore J. as the appeal case management judge.
[33] In her endorsement dated January 7, 2022, Shore J. deferred the fresh evidence motion for consideration at the appeal hearing. She also found that the children’s wishes, while they may be relevant to the review of the trial judge’s order in the Ontario Court scheduled for April 2022, were not relevant for the appeal. Therefore, she did not make an order for the children to testify on the appeal.
[34] Shore J. also declined to allow the appellant father to advance new grounds for appeal. In that regard, the appellant father submitted (among other things) that the hearing before the trial judge should have proceeded as an application for parental decision-making and parenting time under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, instead of a protection application under the CYFSA. Shore J. found that the new grounds were devoid of any merit. She also found that the appellant father had not provided any explanation as to why they were not included in his original documents. As well, she noted that given the appellant father’s significant delay in perfecting the appeal, permitting additional appeal grounds may cause further delay, contrary to the children’s best interests and the primary objective. With that ruling, the applicant father withdrew as unnecessary his motion for extension of the page limit for his appeal factum.
III. Fresh evidence
[35] At the appeal hearing, prior to hearing submissions on the appeal’s merits, I heard and considered the parties’ submissions with respect to the appellant father’s motion to admit fresh evidence on the appeal. The other parties opposed the appellant father’s motion. The fresh evidence that the appellant father said should be admitted was as follows:
a. Electronic communications from the children to the appellant father, asking to be picked up early from access visits with the respondent mother. Those communications consisted of an email from the older child dated September 6, 2020 (prior to the trial of the protection application), and undated text messages stated to be from both children, which the appellant father advised had been sent in June 2021 (after the trial judge’s decision);
b. The affidavit of the appellant father’s wife sworn December 14, 2021; and
c. The transcript of the hearing before Finlayson J. on April 21, 2020, of the Society’s motion to permit the respondent mother to have unsupervised access to the children.
[36] In child protection appeals, an appellate court may receive further evidence relating to events after the appealed decision: CYFSA, s. 121(6).
[37] In Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C), [1994] 2 S.C.R. 165, the Supreme Court of Canada endorsed a broad interpretation of the admissibility of fresh evidence on appeal in child protection cases. In that case, the court admitted fresh evidence on appeal on the basis that the evidence (i) could not have been adduced before; (ii) was highly relevant in that it enabled the court to make determinations on an accurate picture of the situation at hand; (iii) was potentially decisive to the child’s best interests; and (iv) was credible: M. (C), at p. 190. In doing so, the Supreme Court adopted a modified version of the test for admitting fresh evidence in the criminal context, as set out in R. v Palmer, [1980] 1 S.C.R. 759, at p. 775, also noting that even in criminal matters, the rules on admission of fresh evidence on appeal are not “cast in stone”: M. (C). , at p. 186.
[38] The appellant father argued that the children’s electronic communications while in the respondent’s mother’s care should be admitted as being credible, highly relevant evidence that cast significant doubt on the trial evidence of the OCL clinician with respect to the children’s wishes. In the trial reasons, at para. 70, trial judge accepted the clinician’s evidence that the children, overall, wished to return to their mother’s care. The appellant father argued that the evidence of his current spouse, in addition to being relevant to the children’s wishes, also provided additional relevant information about the children’s behaviour while with the appellant father and his wife before and after the trial decision.
[39] With respect to the transcript of the interim access hearing, the appellant father argued that the transcript should be accepted as supporting his allegations of misconduct against the OCL and the Society during the protection proceedings. In particular, he relied on a passage in the transcript during the submissions of children’s counsel, in which counsel argued that the risk level associated with Society’s concerns about physical discipline may not be upheld at trial. In that context, children’s counsel stated: “And I would submit that there is a world of difference between being abusive, meaning an intention to hurt and to disfigure, and inappropriate discipline, which we know is also cultural. I’m not suggesting that it is okay, but I am suggesting that there is a real difference between how we characterize the risk.” The appellant father argued that OCL counsel’s suggestion that physical violence against children may be culturally excusable was derogatory and hurtful and that it was indicative of the OCL’s unfair bias in favour of the respondent mother and against him as an African male. He also took exception to the trial judge’s failure to accept and rely on the transcript for the purpose of establishing his unfair treatment.
[40] After hearing counsel’ submissions, I advised the parties that I was dismissing the motion to admit fresh evidence. The rationale for doing so is set out below.
a. The older child’s text to his father is dated September 6, 2020, before the trial. The appellant father did not provide a sufficient explanation of why it was not tendered as evidence before the trial judge. While the June 2021 texts were sent after the trial decision, the children’s wish to return to their father’s care before the appointed time on a particular occasion (as expressed in the June 2021 texts and the September 2020 email) does not meet the standard of being highly relevant on the issue of whether the trial judge erred in her findings about the children’s wishes nor is it decisive in determining the children’s best interests.
b. In the 18-paragraph affidavit of the appellant father’s wife, she describes herself as the children’s stepmother since she married and moved in with the appellant father in June 2021, after the trial judge’s decision. A significant portion of the affidavit addresses her prior interactions with the children since she began seeing the appellant father in 2015. The appellant father did not provide a sufficient explanation of why that information was not tendered as evidence before the trial judge. In the balance of the affidavit, she describes her active role in caring for the children during her husband’s parenting time, their close bond with the children, the children’s joyful and engaged behaviour in their company, and the children’s reluctance to leave when the parenting time is over. It is heartening that the children enjoy and benefit from their parenting time with the appellant father (which was not in doubt) and his wife, but I do not consider her evidence to meet the standard of being highly relevant and decisive in determining the children’s best interests.
c. The transcript of the April 2020 interim access motion was the subject of submissions before the trial judge and forms part of the appeal record. It was therefore open to the appellant father to rely on the contents of the transcript in his submissions on the merits of the appeal without characterizing it as fresh evidence. However, while counsel’s choice of wording may be considered unfortunate, I did not consider it to be persuasive evidence that the OCL engaged in discriminatory practices or other misconduct in these proceedings, as the appellant father alleges.
[41] Accordingly, I dismissed the appellant father’s fresh evidence motion.
IV. Issues to be determined on appeal
[42] In the Notice of Appeal, the appellant father identifies two “legal grounds for my appeal”, giving rise to the following questions for appellate determination:
a. Pre-intervention charge of the children: Did the trial judge err in finding that the respondent mother had pre-intervention charge of the children for purposes of s. 101(3) of the CYFSA?
b. The children’s wishes: Did the trial judge err in her findings with respect to the children’s wishes, based on evidence presented by the OCL and the Society that did not represent the children’s true wishes?
[43] Related to the foregoing but not identified as a legal ground of appeal, the Notice of Appeal also alleges that disturbing matters arose from the conduct of the OCL and the Society during the protection proceedings that were brought to the trial judge’s attention but not addressed in the trial decision, described in the Notice of Appeal as “a grave omission if … left unaddressed by any court.”
[44] As previously noted, the appellant father sought to raise additional grounds of appeal in his urgent December 2021 motion, which were also referred to in the appellant father’s factum. However, consistent with Shore J.’s ruling, those grounds were not addressed in oral submissions at the appeal hearing nor in the reasons below.
[45] In the balance of these reasons, I will first address the standard of review that applies on this appeal. I will then address the legal grounds of appeal under the paragraph headings set out above. In that context, I will also briefly address the appellant father’s misconduct allegations.
V. Standard of review
[46] The standards of review for appeals are set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[47] On questions of law, the standard is correctness: Housen, at para. 8. On questions of fact, the standard is palpable and overriding error: at para. 10.
[48] On questions of mixed fact and law, the standard is correctness where there is an extricable legal principle. Otherwise, the standard of review on questions of mixed fact and law is palpable and overriding error, including with respect to the application of the correct legal principles to the evidence: Housen, at paras. 36-37.
[49] A palpable and overriding error is "an obvious error that is sufficiently significant to vitiate the challenged finding”: Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 39, citing Waxman v. Waxman (2004), 186 O.A.C. 201, at p. 267 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 291.
[50] In the child protection context, previous case law has emphasized the particularly high degree of deference owed to the trial judge on appeal.
[51] In Children's Aid Society of Toronto v. P.L., 2012 ONCA 890, 299 O.A.C. 388, at para. 14, leave to appeal refused, [2013] S.C.C.A. No. 1112, the Court of Appeal identified two overarching principles that apply on child protection appeals: “the paramount consideration of the best interests of the child and the standard of review.” At paras. 15-16, the court explained:
First, 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.
Second, the degree of deference owed to the trial judge is particularly high in child protection proceedings. In C.(G.C.) v. N.B. (Min. of Health & Community Services), [1988] 1 S.C.R. 1073, at para. 5, the Supreme Court described the standard of review applicable in such cases as "... trial judges' decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment."
VI. Pre-intervention charge of the children
[52] Did the trial judge err in finding that the respondent mother had pre-intervention charge of the children for purposes of s. 101(3) of the CYFSA?
[53] When making an order with respect to the interim or final care and custody of a child found to be in need of protection, the court is required by s. 101(3) of the CYFSA not to remove the child from “the care of the person who had charge of the child immediately before intervention under this Part [V: Child Protection] unless satisfied that alternatives that are less disruptive to the child … would be inadequate to protect the child.” Similar considerations apply when the court makes a temporary order for a child’s care and custody under s. 94(2) upon the adjournment of a child protection hearing, under which the alternatives include an order that the child “remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention” with or without Society supervision: ss. 94(2)(a) and (b).
[54] The trial judge considered the issue of pre-intervention charge of the children in her trial reasons, at paras. 47-58. At trial, the Society, the respondent mother and the OCL argued that the trial judge was bound by the finding of Finlayson J. (at the temporary care and custody hearing in April 2019) that the respondent mother had pre-intervention charge of the children, given that the parallel language is used in s. 101(2) and s. 94(2): trial reasons, at paras. 49-50.
[55] In her consideration of that submission, the trial judge (like Finlayson J. at the temporary care and custody hearing) was faced with the fact that the children had been removed from the respondent mother’s residence on Friday, November 30, 2018, but the matter had not been brought before the court until January 31, 2019, some two months later. Section 88(a) of the CYFSA requires that a child protection court hearing occur “[a]s soon as practicable, but in any event within five days after a child is brought to a place of safety”. Before Finlayson J., the Society’s explanation was that the Society believed that the respondent mother had consented to placing the children in the appellant father’s care, but Finlayson J. found little evidence of the respondent mother’s consent to the children’s placement with him beyond that weekend, when the children would have been in his care in any event under the prior consent family court order: trial reasons, at para. 48.
[56] The trial judge rejected the submission that Finlayson J.’s ruling was binding on her. She accepted the appellant father’s trial position that it was open to her to find that the appellant father also had charge of the child for purposes of s. 101(2) prior to the removal of the children from the mother’s residence: trial reasons, at para. 53. The trial judge characterized that question as being of “critical importance because the CYFSA gives priority to the person who had charge of the children prior to society intervention…. [I]f this court finds that the father also had charge, the court can consider the parents’ competing plans on an equal footing at the disposition stage of the trial.”: trial reasons, at para. 54.
[57] The trial judge then went on to find that the respondent mother had sole pre-invention charge of the children for purposes of s. 101(3). In doing so, the trial judge treated November 30, 2018 (the day the children were removed from the respondent mother’s residence) as the date of the Society’s intervention, also being cognizant that the matter was not brought before the court until January 31, 2019. In the trial reasons, at para. 55, the trial judge relied on the following evidence to support of her conclusion that the respondent mother had sole pre-intervention charge of the children:
(1) The mother’s evidence was clear that on November 30, 2018, she was only consenting to the children going to their father for the weekend as he has weekend access as per court order. She was not consenting to them being placed in his care on an ongoing basis. (2) The society intake worker told the mother on November 30, 2018 and on December 10, 2018 that if the children did not go to their father they would be placed in foster care. She did not tell the mother she could consult a lawyer. (3) On December 31, 2018, the mother again told the intake worker that she was not consenting to the children staying with the father. (4) At a January 11, 2021 meeting, the mother again told the society that she was not consenting to the children staying with the father.
[58] In the trial reasons, at para. 56, the trial judge also noted that the Society acknowledged at trial that it should have brought its protection application immediately after the children’s removal from the respondent mother’s care on November 30, 2018, and consequently agreed that the respondent mother had sole charge of the children prior to the Society’s intervention.
[59] The appellant father argues that the trial judge erred in finding that the respondent mother had pre-intervention charge of the children. In his oral submissions, the appellant father argued that the date of the Society’s intervention for the purposes of s. 101(3) was January 31, 2019, when the Society brought its protection application. The appellant father submits that he had sole charge of the children from November 30, 2018, when the children were removed from the respondent mother’s residence and placed in his care, continuing until he surrendered charge of them after the trial judge’s decision in April 2021. It follows that he had charge of the children on January 31, 2019, the date the matter first came before the court, which (according to the appellant father) was the date of the Society’s intervention. On that basis, the appellant father says that he had charge of the children immediately before the Society’s intervention on that date. The appellant father also suggests that given that criminal charges were brought against the respondent mother shortly after the children’s removal on November 30, 2018, the removal should be considered as having happened at the behest of the police rather than the Society. Therefore, the appellant father submits that the removal was outside the scope of the CYFSA until the Society brought its protection application on January 31, 2019.
[60] In his factum, the appellant father also argues that he had charge of the children jointly with the mother at the time of their removal from the respondent mother’s residence on November 30, 2018. Therefore, if that date is treated as the date of the Society’s intervention, the trial judge erred in finding that the respondent mother had sole charge of the children for purposes of s. 101(3) prior to that time, according to the appellant father.
[61] I disagree.
[62] Determination of the date of the Society’s intervention and whether the respondent mother had charge of the children immediately before that date for purposes of s. 101(3) are questions of mixed fact and law. Unless the trial judge made an extricable error in principle, an appeal court can interfere with her decision only if there is a palpable and overriding error. I see in no error in principle or palpable and overriding error in this case.
[63] In her decision, the trial judge treated the date of the children’s removal from the respondent mother’s residence on November 30, 2018 as the date of the Society’s intervention and found that the respondent mother was in sole charge of the children immediately prior to that date: trial reasons, at para. 58. In doing so, the trial judge was aware of the Society’s acknowledgement that it should have brought the matter before the court immediately after the children’s removal on November 30, 2018, rather than two months later on January 31, 2019: trial reasons, at para. 56. The trial judge was also aware that the children’s parenting arrangements were the subject to a consent court order under which the respondent mother had sole custody of the children, with designated access for the appellant father: trial reasons, at para. 15. In the trial reasons, the trial judge gave cogent reasons why she concluded that the respondent mother was the sole person who had charge of the children prior to their removal from the respondent’s residence on November 30, 2018, including the specific evidence she relied on to do so: trial reasons, at para. 55. In all the circumstances, I find that she made no error of principle or other error that was obvious and sufficiently significant to vitiate her findings.
[64] I also see no merit in the suggestion that the children’s removal from their mother’s residence on November 30, 2018 was a police action that was somehow outside of the scope of the CYFSA. Under ss. 81(6) and (7) of the CYFSA, a Society child protection worker (with police assistance if requested) who believes upon reasonable and probable ground that a child younger than 16 is in need of protection and otherwise meets the requirements of those provisions may without a warrant bring the child to a place of safety. In these circumstances, the Society worker and the police are clearly operating within the ambit of the CYFSA when the children are removed, whether or not criminal charges are subsequently brought.
[65] Accordingly, I see no merit in this ground of appeal.
VII. The children’s wishes
[66] Did the trial judge err in her findings with respect to the children’s wishes, based on evidence presented by the OCL and the Society that did not represent the children’s true wishes?
[67] The trial judge addressed the children’s views and wishes in the trial reasons, at paras. 66 to 70. The trial judge accepted the evidence of the children’s views and wishes provided by the OCL clinician appointed in connection with the child protection proceedings: trial reasons, at para. 66. Along with OCL counsel, the clinician interviewed the older child 14 times and the younger child 13 times. The clinician also met with the respondent mother and other persons involved with the children. The clinician did not meet with the appellant father, however, since he refused to be interviewed, making it clear that he considered the OCL process to be biased. He was also uncooperative in making the children available to be interviewed, requiring the OCL to obtain court orders to allow the children to be interviewed at school: trial reasons, at para. 67.
[68] The trial judge accepted the OCL clinician’s summary of the children’s views, in which she stated that the younger child consistently expressed a preference for residing primarily with the respondent mother, and that the older child initially expressed the same view but had more recently expressed a preference for splitting his time 60 per cent with his father and 40 per cent with his mother while not opposing a court order that he reside with either parent on a full time basis: trial reasons, at paras. 68 and 70(23). The trial judge also set out a 23-paragraph summary of the clinician’s affidavit describing the interviews with the children and justifying the clinician’s conclusion that the children, overall, wished to return to their mother’s care: trial reasons, at para. 70.
[69] The appellant father alleges that the evidence presented by the OCL and the Society about the children’s wishes does not represent their true wishes, as expressed to him. In his fresh evidence factum, the appellant father describes the OCL’s reports and representations as to the children’s views as “fraudulent”, a claim that he also made before the trial judge. He says that he implored the court below to take steps to independently verify the children’s true wishes directly by interviewing the children, which the court failed to do. Instead, the trial judge erroneously accepted the evidence of the OCL and accordingly erred in her findings with respect to the children’s wishes.
[70] Related to that submission, the appellant father also says that the trial judge failed to give effect to his complaints about the treatment he suffered as a result of the misconduct of the OCL and the Society, which he says favoured the respondent mother and disadvantaged his position in an unfair and discriminatory way, to the children’s detriment.
[71] The trial judge’s findings with respect to the children’s wishes are findings of fact, which are afforded a particularly high degree of deference in child protection proceedings. An appeal court can interfere with a finding of fact only if there is a palpable and overriding error. I see no palpable and overring error in this case.
[72] In her reasons, the trial judge carefully set out the evidence she relied on to support her conclusions about the children’s wishes, as provided by the OCL clinician. That evidence was persuasive and the trial judge gave cogent reasons for relying on it. The trial judge accepted that evidence in preference to the appellant father’s evidence that the children wanted to reside with him and not their mother. She did so after a ten-day trial, in which she had the advantage of hearing testimony from the OCL clinician, the parents and other witnesses. By relying on the OCL clinician’s evidence to determine the children’s wishes, the trial judge did not give effect to the appellant father’s submission that the court should independently confirm the accuracy the OCL’s evidence by hearing directly from the children. As well, she did not give effect to the appellant father’s allegations of misconduct against the OCL and the Society. Those determinations were within the trial judge’s purview and are entitled to a high degree of deference. I seen no error in her analysis that was obvious and sufficiently significant to vitiate her findings as to the children’s wishes.
[73] In providing the evidence she did, the OCL clinician was carrying out the OCL’s statutory mandate to give voice to the children, providing the court with independent third-party evidence of the children’s wishes from qualified professionals, thereby assisting the court in determining what is in the children’s best interests. The OCL’s function is an important one, given that evidence of children’s wishes that is meditated through their parents (or others with a direct personal interest in the outcome) is often contradictory, and may be coloured by a parent’s personal preferences. There is also the prospect that the preferences of an often-conflicted child may evolve over time or that the child may be telling the parent what the child thinks the parent wants to hear, rather than reflecting the child’s true preferences. The fact that the OCL’s evidence of the children’s wishes does not accord with the evidence of at least one of the parents should be considered the expected outcome in most cases. It certainly does not provide evidence of fraud or other malfeasance, nor does it justify spurious allegations of such conduct.
[74] Accordingly, I see no merit to this ground of appeal.
VIII. Disposition
[75] For the foregoing reasons, the appeal is dismissed.
[76] The respondent mother indicated her intention to seek costs against the appellant father if his appeal was dismissed. The appellant father advised of his intention to seek costs against the Society.
[77] Unless settled between the relevant parties, a party seeking costs may serve and file brief written submissions (not to exceed three pages) together with a bill of costs within 21 days. A party against whom costs are sought shall have a further 14 days to respond by brief written submissions. If submissions are not received within the specified timeframe, the parties will be deemed to have settled costs.
R. A. Lococo J.
Released: March 17, 2022
[^1]: Given Goodman J.’s order, it was not open to the trial judge or this court on appeal to grant the appellant father custody of the children under s. 102 of the CYFSA, as requested in the Notice of Appeal: see CYFSA, s. 42(6).