Family and Children's Services of Cumberland County v. D.M.M.

Family and Children's Services of Cumberland County v. D.M.M. Court Court of Appeal Date 2006-06-23 Citation 2006 NSCA 75 Docket CA 262934 Judge/Registrar/Adjudicator Hamilton, M. Jill (Honourable Justice); Bateman, Nancy J. (Honourable Justice) (CA); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Family and Children's Services of Cumberland County v. D.M.M. - 2006 NSCA 75 - 2006-06-23 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Family and Children’s Services of Cumberland County v. D.M.M., 2006 NSCA 75 Date: 20060623 Docket: CA 262934 Registry: Halifax Between: Family and Children’s Services of Cumberland Co. Appellant v. Mc. (D.M.) and M. (D.) Respondents v. Mc.(S.) and F. (J.) Respondents Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act. Judges: Roscoe, Bateman and Hamilton, JJ.A. Appeal Heard: June 13, 2006, in Halifax, Nova Scotia Held: Appeal is dismissed per reasons for judgment of Roscoe, J.A.; Bateman and Hamilton, JJ.A. concurring. Counsel: Cindy A. Bourgeois, for the appellant Colin Campbell, for the respondent D.M.Mc. Mary Ellen Nurse, for the respondents, S.Mc. and J. Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act. PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. SECTION 94(1) PROVIDES: 94(1) 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 pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child. Reasons for judgment: [1] Family and Children Services of Cumberland County appeals the disposition order of Family Court Judge David A. Milner made pursuant to s. 46 of the Children and Family Services Act, S.N.S. 1990, c.5, whereby an infant was placed in the temporary care of her maternal grandmother and her partner under supervision for a period of three months, after which the suitability of the placement would be reviewed. The oral decision dated February 10, 2006 is unreported. Background: [2] The female child, MMc, was born on October (editor’s note- date removed to protect identity) 2004 and taken into care by the Agency on October 13, 2004 because of concerns that her mother DMc and her father DM were incapable of caring for her. An older child of the parties had previously been committed to the permanent care of child protection authorities in New Brunswick. Shortly after the completion of the initial interim hearing relating to MMc, DMc’s mother SMc, and her fiancee JF, made applications to have standing as third parties in the action and for leave to apply for custody and access pursuant to the Maintenance and Custody Act. The applications, which were contested by the Agency and the parents, were granted in May 2005. The finding in need of protective services was made by consent on December 17, 2004. The first disposition order was dated June 10, 2005. Initially the intention of the grandmother was to support the mother in her efforts to regain custody, but during the review of disposition hearing in February 2006 the third parties amended their plan and sought custody of the infant themselves. SMc and JF were self-represented at the hearings before Judge Milner. By the time of the February hearing, the infant’s father had dropped out of the picture. [3] The child’s mother DMc did not support her mother’s plan for the child and testified that her mother had not been a good parent to her and her siblings. DMc accused her mother of beating her and her siblings, calling them “bastards”, being an illegal drug user, drinking to excess, and transmitting pornographic videos of herself over the internet when her younger children were nearby. SMc denied the allegations made by DMc. The grandmother’s evidence was largely corroborated by her 21 year old daughter CMc. [4] The Agency did not support the grandmother’s plan for custody based on DMc’s allegations and because of the lengthy involvement of the New Brunswick child welfare agencies with the grandmother’s five children over a 10 year period. The Agency’s plan was to place the child for adoption. The decision under appeal: [5] Judge Milner found that the mother of the infant was, due to her diminished intellectual capacity and questionable judgment, incapable of caring for her or providing any stability in the child’s life. That finding is not in issue on the appeal. [6] The judge then considered whether a family placement pursuant to s. 42(3) of the Act was in the best interests of MMc. That section states: 42 (3) Where the court determines that it is necessary to remove the child from the care of a parent or guardian, the court shall, before making an order for temporary or permanent care and custody pursuant to clause (d), (e) or (f) of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family pursuant to clause (c) of subsection (1), with the consent of the relative or other person. [7] Judge Milner began his consideration of that section by stating: [14] The section of course I think requires more than just some remote possibility that the plan might work. I think the court is required to carefully consider the plan in the light of the evidence that they’ve presented and the evidence that’s been presented by the other parties and see whether it’s in the best interest of the child involved and to see whether the plan is viable and whether the proposed caregivers can do the job of raising this child; that they can do it to ensure the child’s safety and general physical well-being and their, and the child’s emotional needs, educational needs, spiritual needs, as she grows up. [8] The judge then referred to the grandmother’s history of difficulties with parenting, much of it arising from the abusive relationship she and her children experienced with her former husband, and continued: [17] With respect to her own abilities to be a parent, she may have made some mistakes but I think she’s learned something from those mistakes, something that will give her abilities in the future to better care for her children than perhaps she has in the past. I’m aware that the relationship that she had with her former partner does necessarily continue in the sense that she continues with him to be a parent of certain children that are still growing up between the two homes. [18] She has, importantly I think, entered into a new relationship which has been a positive influence on her life. She and [JF] have been close friends and partners going back until the year 2002, and it’s my conclusion or impression or both from having listened and read all the evidence, that her situation since she’s been involved with [JF] has been one without abuse or violence and he has been and it seems will continue to be a strong support to her in her discharge of duties to her children as parents. [19] [JF] himself helped to raise four children, including one girl. And his evidence is that he’s done a fairly good job of doing that, along with his former wife, and in addition, there’s no evidence to the contrary. The children I’m told, his children, that is, support him in his new relationship and he has maintained contact with his children and with their children. [20] Their plans, the third parties, would be to raise [MMc] as their own child in the sense that they would see themselves as being the decision‑makers, the persons in the same kind of position of control that a parent usually is in our society, that is they would make the important decisions in the upbringing of the child and they would do that without interference and they would try to prevent interference from anyone else. ... [9] After discussion of the grandmother’s plan regarding the mother’s contact with the child, the judge reviewed the evidence respecting JF, including his age, health, work and parenting experience and concluded: [25] So I think it would be in the best interest of [MMc] that she be able to live with [JF] and [SMc] under some arrangement that fits within the procedures set out in both statutes. ... [10] The trial judge ordered that the child be placed in the interim care of the third parties under supervision of the Agency for three months, subject to a review scheduled for May 9, 2006 which would be one month prior to the expiration of the time allowed for a final disposition. We were advised by counsel that the May 9, 2006 hearing was set over to June 6, 2006. At that hearing, after receiving positive reports of a nurse practitioner and a representative of the New Brunswick Minister of Community Services who had visited the home of the third parties, Judge Milner placed the child in the care of the third parties pursuant to the Maintenance and Custody Act without access to the parents of the child and indicated that the previous order would expire on its 12 month anniversary, June 9, 2006. [11] In the decision under appeal, dated February 10, 2006, the trial judge recognized that the third parties lived in Minto, New Brunswick and requested that the Agency work out a suitable method of supervision. He indicated that he did not “see that there is a need for intense supervision, frequent visits, any more frequent than say twice a month”. [12] Later in the decision, the trial judge dealt with the conflicting evidence concerning SMc’s past parenting and concluded that there were instances of neglect and physical discipline, though no hitting with belts or sticks as alleged. He indicated that he was satisfied that SMc has learned that there are better ways of disciplining children and since JF will be present in the home, that the child would not be at risk of harm. With respect to the allegations of improper sexual conduct, he was not able to make a finding of fact as to whether SMc’s children were exposed to any inappropriate activity. He was satisfied though that nothing of that nature would occur in the future. Issues on appeal: [13] The Agency has appealed the order placing the child in the temporary care of SMc and JF and argues that the trial judge erred by unduly emphasizing the benefit of a family placement thereby overriding the paramount consideration of the best interests of the child, by placing a burden on the Agency to prove that the third parties’ plan was not in the best interests of the child, by overlooking and misinterpreting evidence, by unduly interfering with the hearing by assisting the unrepresented third parties and by limiting the Agency’s statutory obligations by restricting the level of supervision of the third parties. Standard of review: [14] The standard of review on this appeal is as stated in Children’s Aid Society of Cape Breton ‑ Victoria v. A.M., 2005 NSCA 58: [26] This is an appeal. It is not a retrial on the written record or a chance to second guess the judge’s exercise of discretion. The appellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise of discretion for that of the judge at first instance. This Court is to intervene only if the trial judge erred in legal principle or made a palpable and overriding error in finding the facts. The advantages of the trial judge in appreciating the nuances of the evidence and in weighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deference except in the presence of clear and material error: Family and Children's Services of Lunenburg County v. G.D. , [2003] NSJ No 416 ( Q.L.) (C.A.) at para. 18; Family and Children's Services of Kings County v. B.D. (1999), 177 N.S.R. (2d) 169 (C.A.); Nova Scotia ( Minister of Community Services) v. C.B.T. (2002), 207 N.S.R. (2d) 109; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 at paras. 10 ‑ 16. [emphasis added] Analysis: [15] The first ground of appeal alleges that the trial judge overemphasized s. 42(3) and thereby either overlooked or did not properly consider that the paramount consideration in child welfare matters is the best interests of the child. I disagree. It is obvious that the trial judge was cognizant of the best interests of MMc and, as noted in the parts of the decision quoted above, he stated at the commencement of his analysis that he was to determine what was in the best interests of the child (¶ 14) and at the end of his review of the evidence concluded that it was in her best interests to be placed in care of the third parties (¶ 25). We cannot second guess the trial judge on this assessment. He was aware of the problems in the third parties’ plan and mentioned each one of the serious allegations made against them. He weighed the evidence and found on balance that the benefit of a family placement was worthy of being tested on a temporary basis. While any one of us may have taken a different view of the evidence and placed more emphasis on factors upon which he did not consider as significant, it is not our role to interfere in the absence of legal error or overriding error in findings of fact. [16] The appellant submits that the trial judge erred by placing a burden on the Agency to prove that placement with the third parties was not in the best interests of the child. Again, the Agency points to a long list of problems with the third parties’ plan including the continued dispute between SMc and her former husband over custody of their younger children, SMc’s past involvement with New Brunswick child welfare authorities and JF’s age. It points to a segment of the decision where the trial judge accepts JF’s evidence that he successfully parented his own children and says that in addition, there was “no evidence to the contrary”. I do not accept that in making that statement that the trial judge was reversing the onus or suggesting that the Agency had a burden to present evidence to refute that presented by JF. The judge was simply stating a fact - there was no evidence before him to contradict the evidence of JF which he accepted. [17] The Agency also submits that since the trial judge found, based on very questionable evidence, that SMc “had learned” from her past mistakes and therefore the plan was viable, that he must have improperly placed the burden on the Agency to prove that the plan was not in the child’s best interests rather than placing the burden on the third parties to prove that their plan was in her best interests. [18] The onus is indeed on the third parties to present a plan for the child that is sound, sensible, workable, well conceived and in her best interests: Children's Aid Society of Halifax v. T.B., 2001 NSCA 99, ¶ 30 -31. I am not persuaded that in this case the trial judge misplaced the burden as suggested by the appellant. There is no doubt that the importance of the best interests of the child was the predominant factor in reaching his ultimate findings and that the third parties bore the burden of proving that their plan was in the child’s best interests. The trial judge saw and heard the third parties and was in the best position to determine their abilities and whether to entrust the infant to their care. The words of Chipman, J.A. in Family and Children's Services of Kings County v. D.R. (1992), 118 N.S.R. ( 2d) 1 are pertinent: [50] . . . I emphasize the unique advantage possessed by the trial judge in carrying out the duties mandated by the Act. The Family Court judges presiding at trial are best suited to strike the delicate balance between competing claims to the best interests of the child. In the absence of error in law or clearly wrong findings of fact, this Court is neither willing nor able to interfere. See Nova Scotia (Minister of Community Services) v. S.M.S. et al. (1992), 112 N.S.R. (2d) 258. [19] The third ground of appeal is in essence, a rephrasing and repetition of the first two grounds. The Agency argues that the trial judge overlooked and misinterpreted material evidence and thereby erred in the determination of what was in the best interests of the child. The appellant says that the trial judge was required to conclude that past parenting mistakes by the grandmother would be repeated. The argument is based upon case law declaring that the trial judge is entitled to rely on evidence of the parents’ past behaviour to predict further conduct. See for example: Nova Scotia (Minister of Community Services) v. Z.(S.) (1999), 181 N.S.R. (2d) 99, at ¶ 13. The appellant once more points to the evidence that SMc had a history of involvement with child welfare, that she called her children names, and that she beat them with sticks and belts. [20] In my view, the trial judge did not overlook or misinterpret any evidence. It is clear from his decision, the questions he asked of a number of witnesses and his discussion with counsel during the submissions that he was keenly aware of the evidence of past parenting of SMc. He also knew that her turbulent relationship with her former husband was at the root of many of the complaints to the child welfare agency and that she was now in a stable relationship with JF who the trial judge had ample opportunity to assess. The trial judge did not overlook or misinterpret the evidence. He commented upon the issues raised by the Agency and no doubt considered the conflicts in the evidence on past parenting. He made credibility findings and findings of fact and, as he is entitled to do, decided that SMc and JF were nonetheless in a position to offer the plan that was in the best interests of the child. Although entitled to rely on evidence of past parenting, the judge was not required to conclude that history would repeat itself. Again, it is not our role to interfere with that judgment unless we are convinced that there was an error in principle or a palpable or overriding error in finding the facts. In H.L. v. Canada (Attorney General) 2005 SCC 25, Justice Fish discussed the notion of a "palpable and overriding error" in the following passages: 55 "Palpable and overriding error" is at once an elegant and expressive description of the entrenched and generally applicable standard of appellate review of the findings of fact at trial. But it should not be thought to displace alternative formulations of the governing standard. In Housen, for example, the majority (at para. 22) and the minority (at para. 103) agreed that inferences of fact at trial may be set aside on appeal if they are "clearly wrong". Both expressions encapsulate the same principle: an appellate court will not interfere with the trial judge's findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result. ... 74 I would explain the matter this way. Not infrequently, different inferences may reasonably be drawn from facts found by the trial judge to have been directly proven. Appellate scrutiny determines whether inferences drawn by the judge are "reasonably supported by the evidence". If they are, the reviewing court cannot reweigh the evidence by substituting, for the reasonable inference preferred by the trial judge, an equally ‑ or even more ‑ persuasive inference of its own. This fundamental rule is, once again, entirely consistent with both the majority and the minority reasons in Housen. [21] As its fourth ground the appellant alleges that the trial judge interfered with the hearing of the matter by eliciting, by way of leading questions, evidence supportive of the third parties’ plan. It is also submitted that by “excessive interference” in an effort to assist the unrepresented parties to put their case before the court, the trial judge’s impartiality was impaired. The following excerpts from the appellant’s factum are illustrative of the assistance the trial judge gave to the third parties and which form the basis of this ground of appeal: During [JF]’s examination of Appellant witness, Social Worker Ms. Butt, Judge Milner provided the following information to [JF]: "I'm just going to interrupt a bit just to help the situation, not to help one party or the other, but just to help create an understanding for [JF]. You can ask the witness questions and later on you and [SMc] will be able to testify. So you might want to remember when you testify or [SMc] might want to remember when she testifies, to put on the record what the situation was in her family and how these statements were factually incorrect. Now it's not going to be easy to do that, to remember all these things. And you might want to make it clear while the witness is on the stand that you believe there are errors, and then ask her whether she can, I suppose, give any information to clarify, or whether she – and you've asked her whether she's checked to see whether these things were accurate and she says no, the source of the information is [DMc]. But try to phrase a question. Say, you know, were you aware that there were no siblings. And then she'd say, well, I don't know anything about the family except what [DMc] has told me. This clarifies what her evidence is. It shows that while her notes say something, she's not sure whether they're accurate or not. She's relying on the source...." ... During the direct examination of Supervisor Ms. Jones from the New Brunswick Agency, the Learned Trial Judge intervened and stated in part: "...I'm going to interrupt mainly because [SMc] and [JF] don't have lawyers. I expect of [sic] they did, they'd be objecting to some of this or a lot of this on the grounds that it is hearsay." .. During [JF]’s cross examination of Ms. Jones, [JF] asked a question, which led to a discussion, part of which was as follows: "THE COURT Okay. Ms. Bourgeois, I don't know if that helped, whether you had an objection in light of that interpretation that's need put on the question or not. It may be something, [JF], that you would want to use in your argument at the end of the case as to why I shouldn't put a lot of weight perhaps on the evidence because why should someone – why should the Court put a lot of weight on something, given your interpretation of how they reacted in the situation with respect to Mr. Boucher, I don't know. If it's a question that you think – if you want to ask that question, I'm wondering why. Is it something that you could deal with otherwise? [JF]: I think I can deal with it otherwise, Your Honour. THE COURT: Or do you think it's important that this witness has to answer that as part of your case? [JF]: No, I think we will – I can handle that in my submission afterwards. THE COURT: Okay. Well, perhaps you want to make a note of that so that your [sic] won't forget to do that. And with that knowledge that you're going to try to address it, I think we can move on to another question." ... During [JF]’s testimony, the Learned Trial Judge asked a number of leading questions of him: "And you may have said this already, but – or I don't think you did, but I assume that there's enough flexibility in her employment with the taxi business and with your own business that if you're working either in your own business or in your subcontracting, she's able to be – she would be able to be home if –" ... "And your health has been good?" ... “Always or recently or like always in pretty good health?" ... "I suppose as part of that [as fire chief in Salisbury Fire Emergency Department] you would have first aid and CPR and that sort of training, would I be right?" ... "So, as a first responder then, you would be expected sometimes to deal with almost any kind of medical situation?" [22] The appellant says that by offering this type of suggestion to the third parties and asking this type of question of them, the trial judge helped them so much that he violated the principle that justice must not only be done, but must appear to be done. Reference is made to Farrar v. Farrar (2003), 63 O.R. (3d) 141 (C.A.) and the cases cited therein. [23] In my opinion the Farrar case is distinguishable on the facts and inapplicable to this case. In Farrar, a matrimonial property dispute, both parties were represented by counsel and the main issue was the valuation of the husband’s pensions. The husband was 65 years old and in poor health. The trial judge thought that the experts retained by the parties had improperly used standard mortality tables in their actuarial valuations and despite both counsel’s wish to proceed with the case without further delay, ordered the experts to review the pensions and survivor benefits that they had previously valued and provide a fresh capitalized value. The judge relied on the husband’s expert’s recalculation in her valuation decision. The Ontario Court of Appeal allowed the wife’s appeal. The headnote accurately summarizes the reasoning: In eliciting and relying on additional expert evidence, the trial judge overstepped her role and usurped the function of counsel. This resulted in unfairness to the wife. It was clear at the time the trial judge directed the parties to obtain the further evidence that the additional evidence would only benefit the husband. The husband was represented by counsel and there was no basis for the trial judge to intervene on his behalf. If the husband had intended to rely on evidence of this nature, the onus was on him to obtain it prior to trial and to adduce it in evidence at trial. He chose not to do so. The reliability of the proposed evidence was not beyond controversy. The wife had no realistic opportunity to test the additional evidence. The written interrogatories proved unsatisfactory. The additional evidence had the effect of dramatically changing the valuation of the pension assets. Although the trial judge may have considered the evidence presented by counsel as incomplete or imperfect, she was bound to make a determination of the issues on the evidence before her. A new trial was not necessary on this ground of appeal. The issue could be disposed of on the basis of the calculations presented by the husband's expert at trial. The net equalization payment owed to the husband should be reduced to $8,102.34. [24] In this case the third parties were not represented by counsel at trial. That is the factor that most distinguishes it from Farrar. Nor did the trial judge here order the parties to tender additional expert evidence. [25] When self-represented parties are before the court the trial judge is expected to offer them some assistance if needed, especially in family matters. In Murphy v. Wulkowicz 2005 NSCA 147; [2005] N.S.J. No. 474, a family matter where both parties were unrepresented at trial, one of them complained on appeal that the trial judge helped the other one too much. MacDonald, C.J.N.S. stated: 37 Ms. Murphy asserts that the judge offered too much assistance to Mr. Wulkowicz as a self‑represented litigant. I disagree. It is difficult for a judge to conduct a trial when one of the parties is self‑represented. Two competing interests must be balanced. First the judge obviously cannot be an advocate for a party. At the same time the trial must be run as efficiently and fairly as possible. This may require the judge to offer guidance to a self‑represented party. The appropriate balance falls within the judge's discretion. See R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.). In this context I conclude that the judge in guiding Mr. Wulkowicz did no more than was necessary to ensure that the trial proceeded fairly and efficiently. The judge did not act as Mr. Wulkowicz's advocate. [emphasis added] [26] In Re F. [2001] FamCA 348, the Full Court of the Family Court of Australia established the following guidelines to assist judges in those courts when dealing with a self‑represented litigant, particularly in the family law context: 1. A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial; 2. A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses; 3. A judge should explain to the litigant in person any procedures relevant to the litigation; 4. A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation; 5. If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course; 6. A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise; 7. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights; 8. A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v. Nott (1994) 121 ALR 148 at 150); 9. Where the interests of justice and the circumstances of the case require it, a judge may: * draw attention to the law applied by the Court in determining issues before it; * question witnesses; * identify applications or submissions which ought to be put to the Court; * suggest procedural steps that may be taken by a party; * clarify the particulars of the orders sought by a litigant in person or the bases for such orders. The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias. [27] This list of the methods by which a trial judge may assist an unrepresented party is a useful compilation and complies with the general thrust of Canadian case law on the subject. See for example: Murphy v. Wulkowicz, supra, Angel v. Angel, [1997] O.J. No. 3976 (Gen.Div.) at ¶ 8; Baziuk v. Dunwoody, [1997] O.J. No. 2374 (Gen.Div.) at ¶ 18; Schaffner v. Schaffner, 2001 NSCA 185, at ¶ 12; Calwell v. Canada, [1995] F.C.J. No. 1379 (F.C.A.) at ¶ 11. [28] In some cases a judge oversteps the boundary and intervenes too much in the trial. See for example Ross v. Hern, [2004] O.J. No. 1186 (C.A.), where the court described the trial judge’s conduct and their view of that conduct in the following passage: 8 In 125 pages of transcript, there were a total of 295 questions or interruptions by the trial judge during the evidence of Mr. Hern. 9 Although the trial judge interrupted the testimony of each party a significant number of times, the interruptions of the plaintiff were different from those of the defendants. When he was interrupting Ross, it was generally to clarify testimony or seek further information. The interruptions of the defendants, however, were of a different tone. The trial judge tended to be sarcastic and condescending toward the defendants, and numerous times he appeared to badger them into giving the answer for which he was looking. 10 Even if one only considers the sheer number of questions and interruptions that went on during the giving of the evidence in this trial, the trial judge acted inappropriately. The trial judge interrupted so much that the parties were not able to present the case as they saw fit. The trial judge was an active participant in the case. He was not an impartial arbiter. 11 It has always been accepted that on occasion it is not only desirable but necessary that the trial judge question a witness for the purpose of clarification of the evidence. However, it is appropriate to recall the words of this court in Majcenic v. Natale, [1968] 1 O.R. 189 at 199 (C.A.), where the court addressed the issue of interventions by a trial judge. At p. 205, the court stated: When a judge intervenes in the examination or cross‑examination of witnesses, to such an extent that he projects himself into the arena, he of necessity, adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that "justice not only be done, but appear to be done". Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction. The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible. 12 In the present case, the trial judge crossed the line set out in Majcenic. The questions were not only numerous but were of such a character as to amount to an unwarranted interference with counsel's conduct of the trial. The trial judge effectively took the case into his own hands and out of the hands of counsel: see J.M.W. Recycling Inc. v. Attorney‑General of Canada (1982), 35 O.R. (2d) 355 at p. 362 and Farrar v. Farrar (2003), 63 O.R. (3d) 141 (C.A.) at paragraph [25]. 13 This court has stated on numerous occasions that in appeals based on undue interventions in the examinations of witnesses, the test is not so much prejudice but whether the image of impartiality was destroyed: see for example Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd. (1995), 23 O.R. (3d) 362 (C.A.). This is such a case. [29] In this case it is my opinion that Judge Milner did not cross the line by excessive interference in the course of trial, by projecting himself into the arena, by usurping the role of counsel, or by becoming an advocate for the third parties. Rather, he assisted the third parties by advising them about the process and how to present their evidence, by helping them frame non-leading questions, by suggesting lines of questioning that might be appropriate, by asking questions that assisted them in introducing their evidence and by offering guidance in how to best present their argument. His assistance did not create any unfairness, prejudice the appellants or destroy the image of impartiality. [30] The fifth issue as stated by the appellant is whether the decision is “perverse, in that he required the child's placement with the Third Parties subject to the supervision of the Appellant, but restricted the ability of the Appellant to adequately supervise said placement, thus unduly limiting its ability to fulfill its obligations under the Children and Family Services Act.” The appellant repeats the litany of the grandmother’s past parenting faults which it says will lead to the child being at risk of harm in her care. It says that given the grandmother’s history, the order of the trial judge places the child at risk and at the same time severely limits the Agency’s mandate to supervise the third parties by restricting their visits to the home to twice per month. [31] Once more the appellant seeks to have us reverse findings of fact: that SMc had learned from her past mistakes, that the presence of JF in the home was a positive change and that it would be in the best interests of the child to be placed with her grandmother rather than be adopted. The trial judge determined that the placement should be under the supervision of the Agency. With respect to the number of scheduled visits, the trial judge said in his decision: [28] Family and Children’s Services of Cumberland County will be asked to supervise the child within that residence directly or indirectly, that is to say by an employee of their Agency or some representative of their Agency chosen by Family and Children’s Services of Cumberland County. I think the frequency of the visits should be ... I don’t see that there is a need for intense supervision, frequent visits, any more frequent than say twice a month. Those visits I’ll leave that to the parties that is to Family and Children’s Services of Cumberland County and anyone representing them on the one part, and [JF] and [SMc] on the other part, but I wouldn’t find it inappropriate if the parties were both comfortable with visits other than the physical trip to Minto. It might be that there could be telephone discussions between the partes that I’ve mentioned, the Agency and the third parties. It might be that the parties might be able to use a webcam or a telephone or other electronic communication just to report on how things are going. But I think likely there would be some personal visit to the home by a representative of the Agency. [32] It is clear that although the trial judge thought that intense supervision was not necessary, and two visits per month might be sufficient, he left the actual number and type of supervisory visits to be agreed upon by the parties. However when counsel for the agency drafted the order, she included the clause: That in supervising the interim placement of the child with the Third Parties, the Applicant Agency may supervise directly or indirectly said supervision, however shall involve no more than two contacts per month ... [33] If the Agency was of the view that more than two visits per month were advisable, it could have attempted to have the third parties agree to a different schedule to include in the order, and if no agreement were possible, ask the trial judge to fix a specific number if a number was actually required for the order. I do not agree that the trial judge restricted the Agency in the performance of its duties or made a perverse decision by making a suggestion as to the number of visits. Conclusion: [34] In conclusion, the judge considered all the evidence, weighed the various factors which the Act requires him to address and properly considered the applicable legal principles. The factors which the judge took into account were the proper ones for him to consider, and his view of the evidence is fully justified by the record before him. I would conclude that the judge did not err in legal principle or make any palpable and overriding error of fact in determining that it was in the best interests of the child that she be placed in the temporary care of the third parties, under supervision of the Agency until further review by the trial judge. [35] I would accordingly dismiss the appeal. [36] Counsel for the respondent made a vigorous submission urging the court to order costs of the appeal against the Agency. She argued that the Agency’s appeal was without merit, unfair to the impecunious third parties and motivated simply by a desire to prove that their opposition to the third parties’ plan was justified. [37] Costs awards in child welfare matters are extremely rare. This court has done so only once in the last 20 years: Children’s Aid Society of Halifax v. S.G. 2001 NSCA 70; [2001] N.S.J. No. 153 where upon dismissing the appeal the court ordered costs payable by the appellant parents and paternal grandparents to the respondent maternal grandparents. No costs were ordered to be paid by the Agency which was also a respondent. In Children’s Aid Society of Cape Breton Victoria v. D.C. and L.L.A. , 2004 NSCA 146; [2004] N.S.J. No. 470, the parents appealed the order of the trial judge which denied them costs on dismissal of the respondent Agency's application. This court dismissed the appeal upholding the refusal to order costs against the Agency, and stated: [6] In particular, in the context of child welfare proceedings, costs are not generally awarded against an agency which takes proceedings that are not successful. In M. Orkin, The Law of Costs, 2nd ed. (looseleaf) (Aurora, Ontario; Canada Law Ltd., 2003) the author discusses costs in child welfare proceedings at pp. 2‑91: In wardship proceedings involving a Children's Aid Society costs have been awarded against the agency when it acted improperly, or unfairly and indefensibly, or while not grossly negligent, performed below a reasonable level and prolonged the litigation; or adopted an untenable position, but not where the agency brought the proceedings in good faith and committed no error; or, where although the agency made severe and grave allegations against the respondent which it subsequently withdrew, the ordinary person would not see such actions as unfair or unreasonable. Costs should only be ordered against an agency in exceptional circumstances of improper or overbearing action. [38] Although the Agency’s appeal in this case was not successful, there is nothing before us to suggest that it acted improperly or unfairly in pursuing its right of appeal. I would not make any order for costs. Roscoe, J.A. Concurred in: Bateman, J.A. Hamilton, J.A.