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 NO.: FS-21-21438 (Toronto) DATE: 20220419

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Toronto Applicant (Respondent on appeal) – and – J.D. (mother) and C.L. (father) Respondents (Appellant)

Counsel: Simon Fisch, for the Applicant (Respondent on appeal) David P. Miller, for the Respondent (Appellant) C.L. (father)

HEARD at Toronto: March 28, 2022

BEFORE: R. A. Lococo J.

Reasons for Judgment

I. Introduction

[1] The appellant C.L. appeals from the final order of Justice Debra A. W. Paulseth of the Ontario Court of Justice dated November 30, 2020, with reasons set out in Reasons for Judgment dated November 30, 2020 (“trial reasons”).

[2] The final order was made following a three-day trial of a status review application brought by the Children’s Aid Society of Toronto (“Society”) under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). M-L is the child who is the subject of the order.

[3] The appellant is the child’s father. He was previously in a relationship with J.D., the child’s mother, who was a respondent to the status review application, along with the appellant father. The mother did not appear at the trial (although her counsel was present) or participate in the appeal. The appellant father was present with counsel at both the trial and the appeal.

[4] Under the trial judge’s final order, the child was placed in the extended care of the Society. Each of the appellant father and the mother has access at the Society’s discretion a minimum of once per month for one hour. The child is the access holder.

[5] The appellant father appeals, alleging that the trial judge made findings of fact that were wrong, unreasonable and not supported by the evidence. The Society disagrees, arguing that the trial judge did not err in her findings of fact, which were well supported by the evidence.

[6] For the reasons below, I am dismissing the appeal.

II. Background Facts

[7] The factual background relating to the parents and the Society’s involvement with the child is set out in some detail in the trial reasons and elsewhere in the appeal record.

[8] By way of summary, at the time of trial, the appellant father was 60 years of age and the respondent mother was 39. Their daughter M-L is a healthy, happy child who will soon be four years old.

[9] The Society became involved with the family in May 2018 following a police referral, which reported issues of domestic violence and drug abuse. The Society worked with the parents on a voluntary basis to address the protection concerns arising from parental conflict and the respondent mother’s long history of substance abuse. On March 18, 2019, the Society closed its file after reaching an understanding with the appellant father about a safety plan, under which he would ensure that the mother would not be living in the home and would not be left alone with the child.

[10] On March 26, 2019, Toronto police executed a search warrant at the appellant father’s home, based on suspected drug dealing. The appellant father, the mother, the child, a visitor and a basement tenant were present in the home. The police contacted the Society since the persons present were being held in custody overnight and the parents could not identify an adult able to care for the child. The child was taken into the Society’s care and has remained in care since that time.

[11] On April 1, 2019, the Society commenced its child protection application. Under a temporary order, the child was placed in the Society’s care and custody, with access to the parents at the Society’s discretion.

[12] As a result of the police search of the appellant father’s home, the police seized suspected illegal substances, together with drug paraphernalia. The substances were later tested and found to include cocaine. Drug charges were brought against the parents and others present in the home but the charges against the appellant father were stayed on May 23, 2019.

[13] To explain the mother’s presence (and the cocaine mixture) at the time of the police search, the appellant father stated that he did not appreciate at that time the risks to the child of the mother’s drug addition or the seriousness of breaching the safety plan. According to the appellant father, he allowed the mother to move back into his home to try to wean her off cocaine using a method he had read about on the internet (he said on the RCMP website), which involved the use of a mixture of substances that included cocaine.

[14] In a consent final order dated July 10, 2019, the child was found to be in need of protection under s. 74(2)(n) of the CYFSA, based on a statement of agreed facts. In the period from July to December 2019, the parents continued to have supervised access visits with the child. During that period, the appellant father called the police several times, he said because of the mother’s unwanted attendances at his home. The appellant father said that on one occasion, she stole a one-pound bag of marijuana, which he said he kept for the purpose of helping to wean her from drugs. During that period, the mother undertook a residential substance abuse treatment program and the appellant father participated in a program with the Centre for Addiction and Mental Health (CAMH) to assist in supporting the mother’s addiction recovery.

[15] On October 7, 2019, the appellant father was arrested and charged with assault with a weapon, after police saw the mother exit from a vehicle running, followed by the appellant father, who had a small hatchet in his hand. He was released from custody on bail conditions that prohibited him from having contact with the mother. He was subsequently charged on two occasions with breaching the bail conditions by having contact with the mother, but those charges were later withdrawn.

[16] In the period from November 2019 to March 2020, the appellant father repeatedly tried to bring the mother for access visits at the same time as his visits, despite the bail conditions and being advised that the visits had to be separate. In March 2020, he said that he was stopping visits with the child (although he did not do so), later explaining that he was trying to force the mother to “step up” with respect to access visits with the child: trial reasons, at paras. 61-62.

[17] By consent final order dated December 17, 2019, the child’s interim placement in the Society’s care and custody was extended for three months, with access to the parents at the Society’s discretion.

[18] On February 7, 2020, the Society brought a status review application, seeking extended Society care of the child, with access to the parents at the Society’s discretion. That status review application was the subject of the trial before Paulseth J. that is now under appeal. In June 2020, the parents filed separate Answers and Plans of Care, seeking the child’s return to the care and custody of one or both parents, with or without Society supervision.

[19] In March 2020, access visits to the child became virtual, due to the COVID-19 health emergency, before reverting to in-person visits. The parents were sometimes together for access visits (or the appellant father sought joint visits), notwithstanding the bail conditions and the Society’s concern that the appellant father had not disengaged himself from his relationship with the mother. For virtual access visits, the appellant father explained that joint access visits facilitated the mother’s participation since she would otherwise not be able to connect for the access visits.

[20] On July 15, 2020, the appellant father pleaded guilty to one count of assault with a weapon. The court accepted agreed facts indicating that the hatchet the appellant father was carrying did not make contact with the mother. The appellant father received a suspended sentence and 18 months probation. One of the probation terms was that he have no contact with the mother unless she gave a revocable consent to contact, which she provided later that month. While the appellant has previously faced criminal charges, that conviction is the appellant father’s only criminal conviction.

[21] A few days before the start of the trial in November 2020, the appellant father amended his Answer and Plan of Care to provide that the child would be in his sole care and custody, rather than providing the alternative of placing the child in the care and custody of the appellant father and/or the mother subject to Society supervision. As clarified during the trial, the appellant father’s intention was to leave his current residence and reside with a couple in Woodbridge, both of whom testified at the trial. His friends would assist him in caring for the child. His amended plan would place the child in his sole care and custody subject to Society supervision. Alternatively, he would be the joint custodian of the child with his friends. The mother would have no role in the plan, except for such access as may be determined by the court or the Society.

[22] The trial of the status review application was heard over a three-day period commencing November 16, 2020. On the first day of the trial, the Society called three Society workers as witnesses and the appellant father testified on his own behalf. Evidence in chief was provided by affidavit, followed by in-person cross-examination by counsel. On the second day of trial, the appellant father called additional witnesses, including the couple with whom he would be residing. Oral submissions occurred on the third trial day, following which the trial judge reserved her decision.

[23] The trial evidence also included a Statement of Agreed Facts relating to the Society’s involvement with the parents and the child. On an unopposed basis, the Society also provided an exhibit entitled Police Records Brief, the contents of which were summarized in the trial reasons, at paras. 35-47. Those records included police occurrence reports and other documents indicating previous criminal charges against the appellant father for drug and other offences that did not result in criminal convictions. The records also indicated that from December 2018 to April 2019, the appellant father called the police 14 times seeking assistance related to domestic conflict with the mother.

[24] On November 30, 2020, the trial judge released her Reasons for Judgment, which included the terms of her final order, placing the child in the extended care of the Society. Each of the appellant father and the mother has access at the Society’s discretion a minimum of once per month for one hour. The child is the access holder.

[25] By Notice of Appeal dated December 29, 2020, the appellant father asks that the final order be set aside and the child placed with him under a supervision order. He alternatively seeks a new trial.

[26] In the balance of these reasons, I will first address the standard of review that applies on this appeal. I will then set out the appellant father’s grounds of appeal and address counsel’s submissions, followed by my analysis and conclusion.

III. Standard of Review

[27] The standard of review for appeals is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness: at para. 8. On questions of fact, the standard is palpable and overriding error: at para. 10. On questions of mixed fact and law (which includes the application of the correct legal principles to the evidence), the standard is palpable and overriding error unless there is an extricable legal principle, in which case the standard is correctness: at paras. 36-37.

[28] In this appeal, the appellant father alleges that the trial judge erred in making certain findings of fact, as outlined further below. He does not allege errors on questions of law or questions of mixed fact and law. Therefore, it is common ground that the applicable standard of review for this appeal is palpable and overriding error.

[29] A palpable and overriding error is an obvious error that is sufficiently significant to vitiate the challenged finding: Longo v. MacLaren Art Centre, 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. An appeal court will not interfere with the trial judge's findings of fact unless it can plainly identify the error, and that error is shown to have affected the result: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55.

[30] When considering the trial judge’s findings of fact, it is not the function of the appeal court to rehear or retry the case, absent a clear statutory mandate to the contrary: H.L., at para. 52. The appeal court may make its own findings of fact and draw its own inferences, but only 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., at para. 89.

[31] In the child protection context, previous case law has emphasized the particularly high degree of deference owed to the trial judge on appeal.

[32] In Children's Aid Society of Toronto v. V.L., 2012 ONCA 890, 299 O.A.C. 388, at para. 14, leave to appeal refused, [2013] S.C.C.A No. 112, 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."

IV. Grounds for Appeal

[33] As argued in the appellant father’s factum and counsel’s oral submissions, the trial judge made the following factual errors in assessing the appellant father’s plan of care:

a. The trial judge erred in finding that the appellant father continued to lack insight into the risks of harm caused by the mother’s drug abuse. b. The trial judge erred in finding that the appellant father was more focused on the mother than himself. c. The trial judge erred in finding that the appellant’s plan of care presented at trial would expose the child to the risks of harm from the mother’s drug use. d. The trial judge erred in finding that the appellant’s plan of care would expose the child to risks of harm from domestic conflict between the appellant and the mother. e. The trial judge erred in finding that the appellant was not credible.

[34] As argued by appellant counsel, the primary issue that led to the trial judge’s factual errors was her misapprehension of the evidence relating to the appellant father’s continuing engagement with the mother. His goal in doing so was to encourage her to address her drug addiction so that she could be part of the plan of care for the child. If that goal could be accomplished and the safety issues addressed, the child would benefit from having both parents involved in her care. The appellant father’s counsel described that goal as his client’s wish, but not his plan. While his previous plan of care contemplated one or both parents being responsible for the child’s care, the recently-amended plan he advanced at trial provided that the mother would not be involved in the child’s care and would have only such access to the child as the court or the Society determined. Appellant counsel acknowledged that by the summer of 2019 (a few months before the trial), the appellant father had come to the realization that for the sake of the child’s safety and well-being, it would not be in the child’s best interests for the mother to be involved in the child’s care. Therefore, the appellant father made arrangements to live with friends in Woodbridge, who would assist in him in caring for the child, away from his previous residence and without the mother’s involvement except to the extent the court or the Society allowed her access to the child.

[35] With that background, the appellant father argues (among other things) that the trial judge erred in her conclusion (trial reasons, at paras. 125-126) that the appellant father lacks insight into the risks of harm posed by the mother’s drug addition and in fact enables her addiction. The appellant father also takes exception to the trial judge’s conclusion (trial reasons, at para. 151) that the appellant father’s plan is flawed because, among other things, the plan was not child-focused, reflected the appellant father’s lack of insight into the safety issues arising from the child’s exposure to the drug-addicted mother, and depended on his judgment that has proven to be more focused on the mother and himself than on the child.

[36] As well, the appellant father challenges the trial judge’s finding (trial reasons, at para. 140) that he had “little credibility” because of:

a. His “pattern of false denials” relating to the presence of drugs in his house and his assault on the mother. (The appellant father says that rather than denying the presence of cocaine in his house, he expressly admitted it, as set out in a statement of agreed facts. As well, he pleaded guilty to assault with a weapon against the mother but correctly noted that there was no finding or agreement that the hatchet came into contact with the mother. The Society’s evidence was that in the appellant father’s interactions with Society workers, he at times admitted and at other times denied the presence of cocaine in his house and consistently sought to minimize his conduct and blame others for the events that led to his conviction for assault with a weapon.) b. The charges against him for breach of criminal court orders. (The appellant father correctly says that criminal charges that do not result in a conviction are not in themselves evidence of criminal conduct. However, the uncontroverted evidence, including from the appellant father, was that he was in frequent contact with the mother while there were outstanding bail conditions that prohibited his contact with her.) c. The pattern of his returning to the relationship with the mother despite knowing the dangers to the child. (The appellant father says he was trying to assist the mother in addressing her drug addiction, for the child’s benefit, and that in any case, his contact with the mother had no relevance to his credibility, since there was no recent evidence of his being in a relationship with the mother and she was not part of his plan of care. The Society says that the appellant father’s overall conduct relating to engagement with the mother over the period of the Society’s involvement with the family displayed a blatant disregard for the child’s safety, given the mother’s drug abuse and the history of parental conflict.) d. His “very superficial and untrustworthy” cooperation with the Society. (The appellant father says that there was no recent evidence of his lack of cooperation with the Society. The Society says that the evidence of its workers was replete with instances of the appellant father’s lack of cooperation, including with respect to his continued engagement with the mother contrary to the child’s interests over the period of the Society’s involvement with the family.)

V. Analysis and Conclusion

[37] In large measure, the appellant father’s objections to the findings of fact come down to the trial judge’s assessment of the appellant father’s credibility. The appellant father says that the trial judge erred by misapprehending the evidence relating to his continued engagement with the mother for the purpose of addressing her drug addiction so that she could be part of his plan of care, for the child’s ultimate benefit. According to the appellant father, his engagement with the mother for this purpose was not a relevant consideration in determining the child’s best interests, given that the mother had no role in his plan of care for the child except to the extent that the court or the Society determined that she should have access to the child.

[38] I agree with the Society that an important consideration in the trial judge’s assessment of the viability of the appellant father’s plan of care was the credibility of the appellant father, including his assurances the mother would not be involved in the child’s care going forward. In making that assessment, trial judge was entitled to take into account not only the plan of care as presented at the trial, but also the evidence relating to the appellant father’s engagement with the child, the mother and the Society over the term of the Society’s involvement with the family since the child’s birth in […] 2018. Viewed through that lens, the trial judge assessed the appellant father’s credibility and decided to give his assurances little or no weight. In the absence of palpable and overriding error, she was properly exercising her fact-finding function as the trial judge. I see no obvious error in her findings that would have affected the result in this case. In these circumstances, it is not the appeal court’s role to intervene.

[39] Accordingly, the appeal is dismissed.

R. A. Lococo J. Released: April 19, 2022