G.A. v. Childrens Aid Society of Cape Breton-Victoria

G.A. v. Childrens Aid Society of Cape Breton-Victoria Court Court of Appeal Date 2004-04-08 Citation 2004 NSCA 52 Docket CA 210705 Judge/Registrar/Adjudicator Hamilton, M. Jill (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - G.A. v. Childrens Aid Society of Cape Breton-Victoria - 2004 NSCA 52 - 2004-04-08 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: G. A. v. Children’s Aid Society of Cape Breton-Victoria, 2004 NSCA 52 Date: 20040408 Docket: CA 210705 Registry: Halifax Between: G.A. Appellant v. The Children’s Aid Society of Cape Breton - Victoria Respondent Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act. Judges: Roscoe, Saunders, Hamilton, JJ.A. Appeal Heard: March 18, 2004, in Halifax, Nova Scotia Held: Appeal dismissed, as per reasons for judgment of Hamilton, J.A., Roscoe & Saunders, JJ.A. concurring Counsel: Douglas MacKinlay, for the appellant Darlene MacRury, for the respondent 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] The appellant, G.A., appeals the November 3, 2003 decision of Justice Darryl W. Wilson of the Supreme Court (Family Division) in which he ordered that four children: A.D., 14, A.D., 13, J.A., 3 and J.A., 2, be placed in the permanent care and custody of the respondent, the Children’s Aid Society of Cape Breton-Victoria. He is the biological father of J.A. and J.A. and is appealing the decision as it relates to three of the four children: A.D., J.A. and J.A.; asking that those three children be returned to his care. H.A., Mr. A’s wife and the biological mother of all four children, is not a party to the appeal although she was a party at the hearing before the trial judge. [2] The trial judge wrote a comprehensive unreported decision outlining the background of these children and Mr. and Ms. A.: [6] The Respondents H.A. and G.A. were married in 1998. At that time, both had children from prior relationships. A. and A., two of the subjects of these proceedings, are the children of H.A. and M.M. who resides in Manitoba. Although notified of the proceedings, M.M. did not participate. G.A. has four children, one, H., is in the care of the Children’s Aid Society of Halifax‑Dartmouth. The other children are over 16 but have been the subject of child protection proceedings in the past. A. and A. lived with their father in Manitoba but were returned to the care of their mother in 1997 (A.) and 1998 (A.). [7] After the Respondents’ marriage, A. and A. lived with their mother and G.A. and his sons, G.A. Jr and J., in a blended family environment. There was conflict between H.A. and G.A. over the discipline of their children by the other step parent. [8] H.A. was addicted to prescription pain medication. G.A. would obtain these pain killers for her. The children were exposed to the use of non‑prescription drugs. G.A. acknowledged transporting and using non‑prescription drugs. [9] The Children’s Aid Society of Cape Breton Victoria initiated a child protection proceeding regarding H.A. and her children A. and A. in the April 2000. A. and A. were taken into care. The agency’s concerns were inappropriate physical discipline, H.A.’s addiction to prescription pain medication, G.A.’s use of drugs, the children’s exposure to drugs and the verbal and physical confrontations between the Respondents which put the children at substantial risk of physical harm. Services were put in place. Conditions including random drug testing and abstinence were imposed. The children were returned to Ms. A.’s care after three months. H.A. became pregnant and J.A. was born on February 5, 2001. [10] H.A. and G.A. reconciled. According to G.A., he stopped using and selling non‑prescription drugs and supplying prescription medication to H.A.. The Respondents moved to Antigonish in September 2001 in order to get away from negative associations. Living in the home were G.A. and his sons G.A. Jr and J.A., H.A. and her children, A. and A. and their new born son J.. [11] The protection proceeding regarding H.A. and her children was transferred to the Antigonish agency and terminated in October 2001. [12] Subsequent to the termination of the prior protection application, the agency in Antigonish received referrals regarding H.A.’s continued misuse of prescription pain medications. G.A. was found in possession of non‑prescription drugs and drug paraphernalia was found in the home. G.A. said the drugs belonged to his son G.A. Jr. He was charged with trafficking but the charges were eventually dismissed. In December H.A. returned to Sydney to enter a drug detoxification program. She was expecting a child. G.A. Jr and J., with their father’s urging, reported H.A.’s continued abuse of drugs to the Antigonish protection agency. [13] Protection proceedings regarding A., A., and J. were initiated by the Minister of Community Service in Antigonish by application dated December 21, 2001 with the first hearing on December 28, 2001. [14] The agency’s concerns were violence in the Respondents relationship, drug trafficking, exposure of the children to drugs, and the abuse of prescription drugs by H.A. and the unsafe home environment of the children. [15] The interim hearing was adjourned to January 2, 2002 to allow the Respondents time to obtain legal counsel. At the Interim Hearing on January 2, 2002 a Consent Interim Order was issued placing A., A. and J. in the care of G.A. subject to the supervision of the agency; granting H.A. supervised access to the children through the agency; and requiring G.A. to report any direct contact or attempt to contact the children by H.A.; both parties were to abstain from the consumption of alcohol and the taking of illegal drugs or prescribed drugs in a non‑prescribed manner; both parties were to participate in drug testing and H.A. was to take drug detoxification and rehabilitation services; both parties were to participate in a parental capacity and psychological assessment; there was to be no physical punishment of the children and the children were not to be exposed to drugs; the agency could access records of service providers to ensure compliance. There were also services put in place for the children. [16] One of the purposes of the order was to minimize contact between the parties so as to avoid threats, arguments or confrontations in the presence of the children and the exposure of the children to drugs. [17] At the time the protection proceeding was initiated in Antigonish, H.A. was pregnant and had returned to Sydney for detoxification purposes. G.A. remained in Antigonish providing care for A., A. and J.. Justin moved to Halifax while G.A. Jr stayed with his father in Antigonish. H.A. gave birth to J.A. on February 25, 2002. J.A. was taken into the care of the Children’s Aid Society of Cape Breton‑Victoria and a separate protection proceedings was initiated. [18] At the protection hearing on March 20, 2002 in Antigonish the Respondents consented to a finding that A., A. and J. were in need of protective services pursuant to Section 22(2)(b). The terms of the Interim Order were continued and a Disposition Hearing was scheduled for May 29th, 2002 in Antigonish. [19] The Parental Capacity and Psychological Assessment was completed by Michael Bryson on May 10th. It contained 17 recommendations and formed the basis for the Disposition Order of May 29. The assessment recognized the addiction of H.A. and the potential addiction of G.A.. It also recognized the difficulties G.A. would have parenting two adolescents and two young children with his minimal parenting skills. It recommended continued care of the children by G.A. with supervised access to H.A.. Both parties were to abstain from the consumption of alcohol, to participate in random drug testing and attend for out‑patient addiction counselling. It provided for services to the children and recommended completion of a parenting program for G.A. and restrictions on the use of his children to provide child care in his absence. The assessment also recommended joint parent counselling if H.A. and G.A. were to remain living separate and apart. It also recommended marriage counselling and a further six months of abstinence before the parties reconciled and provided care for their children in the same residence. [20] A review of the Disposition Order was held on July 3, 2002. At that time the proceedings regarding A., A. and J. were transferred to the Children’s Aid Society of Cape Breton‑Victoria. [21] Meanwhile an Interim Hearing regarding the child J. was held in Sydney on March 8, 18, 28th and May 9th. The child J. was placed in the supervised care of G.A. with conditions that he abstain from the consumption, use or possession of alcohol and drugs, that he participate in drug testing, that no drugs be stored in his residence and that access between H.A. and J. be supervised and that he not relocate with J.. The Protection Hearing was held on June 3, 2002 and a finding made by consent pursuant to Section 22(2)(b). The terms of the Interim Order were continued. [22] G.A. was not able to return to Antigonish after he assumed the care of J. in Sydney. Also he was a lobster fisherman who worked out of Sydney area during the months of May to July. He resided with J. and J. for two months at the residence of M.P. and her partner until lobster fishing was completed and his own home was renovated. B.D., maternal grandmother of A. and A., relocated to Antigonish temporarily and cared for A. and A. until the end of the school year. They returned to the Sydney area at the end of June and resided with their grandmother for a short time. They began living with G.A. after his home renovations were completed. [23] The Disposition Hearing regarding J. was held on August 12, 2002 and the Disposition Review Hearing [regarding] A., A., and J. which was transferred from Antigonish was also heard at this time. Both proceedings were consolidated. ... [29] On November 5, H.A. was visiting a co‑worker’s apartment on Townsend Street. She reported to the police G.A. arrived at the apartment, threatened her and broke a window in the apartment. The police responded but G.A. had left at this time. H.A. changed her story and said G.A. did not threaten her or break a window. Cam MacDonald who was present was interviewed by the police but did not appear for the scheduled trial. [30] G.A. said he was at the apartment. On a prior occasion H.A. told him that her co‑worker Cam MacDonald was sexually harassed her. He said he went to the apartment and told Cam MacDonald he would report him to his employer if the harassment continued. He denies threatening H.A. or breaking a window in the apartment. This incident occurred around 1:00 a.m. and there was a report that A. and A. were with G.A. at the time of the incident. The police were not able to confirm this and G.A. reported that his son G.A. Jr and his son’s girlfriend were with him while A. and A. were in the care of Sandra MacPherson, a friend. Sandra MacPherson confirmed that she was caring for all four of G.A.’s children on the night in question. After A. and A. were taken into care they gave a statement in which they indicated they were present with G.A. on the night he broke a window in Cam MacDonald’s residence and was yelling at their mother. Cam MacDonald did not show for the scheduled court hearing and the charges remained outstanding at the time of this hearing. [31] The Disposition Order was to be reviewed on December 5th . The hearing was adjourned to December 12th when neither Respondent appeared. The December 12th hearing was also adjourned as neither Respondent appeared. On January 6th the review was further adjourned as H.A. was not present and G.A., who had been unrepresented to this time, sought legal representation. The adjourned hearing date of January 17th was further adjourned as H.A. was not present and services had not being accessed by G.A.. ... [33] On February 19 [sic, it was actually the 18th] A. went to a friend’s home after school and reported that she was afraid to return home. She reported a physical confrontation that morning with G.A.. Her mother and brother A. were present. She was interviewed at the police station by the police and child protection worker. She was placed in the care of her grandmother overnight while the investigation continued. The following day she was interviewed in greater detail and a video taped statement was taken. On the night A. would not return home, the agency attempted to locate J. and J.. G.A. would not tell the agency where his children were located because they were not telling them why they were looking for them and why A. was taken to the police station. When the agency workers and police arrived at H.A. ’s apartment looking for the younger children, they found G.A. already present. There was a confrontation with the police and he was arrested and charged with obstruction. These charges remain outstanding. The incident was not a serious altercation although there was reluctance by G.A. to provide information. J. and J. were located at the residence of Sandra MacPherson and allowed to remain there overnight while the investigation continued. The following day A. gave a detailed statement in the agency’s office. She reported incidents of physical confrontation between H.A. and G.A., improper physical discipline of herself and J. by G.A., the frequent presence of H.A. in the home, continued arguments between H.A. and G.A. over H.A.’s addiction to drugs and the presence of drugs in the home. A subsequent interview with A. D. confirmed some of the information in A.’s statement. As a result all four children were taken into care. . . . (Underlining mine) [3] The apprehension was taken before the court February 26, 2003 and the disposition order was varied to provide for temporary care by the agency for all four children with supervised access to Mr. and Ms. A.. [4] With respect to events after the apprehension of the children the trial judge states: [38] Since the children were taken into care, H.A. has consistently visited them. G.A. has attended only two visits with J. and J. and none with A. and A.. He said it wasn't necessary as long as one parent was keeping in contact with the children. ... [40] G.A. Jr was charged with trafficking in drugs in late February 2003 from his father's residence. G.A. was not present at the time and the children were already in care. G.A. Jr is awaiting trial on these charges. [41] In March 2003 G.A. was found in his home in possession of a small quantity of hash oil and Percodan medication and $170.00 cash. Also found was a container with cannabis residue and an empty five gram [vial]. G.A. Jr and H.A. were present. G.A. was charged with trafficking and is awaiting trial on these offences. He said the drugs belonged to his son to G.A. Jr. He found them two days earlier when friends of G.A. Jr were at the house and he held on to them to confront his son the next time he returned to visit. G.A. Jr had moved out of the residence in January but visited regularly for meals and laundry. The Percodan pills were painkillers obtained by H.A. pursuant to a prescription in February. G.A. was holding them for her because she had been addicted to them and he did not want her to take them. H.A. planned to return the medication. [42] The agency is concerned that both Respondents are encouraging A. and A. to deny their original statements and thus causing unnecessary emotional stress. A. initiated e‑mail contact with her mother after being taken into care and there [have] been several e‑mails exchanged in which the court [proceeding] was discussed. Also two agency workers at the Boys Residential Centre in New Waterford where A. was residing saw A. driving in a truck that matches the description of a truck owned by G.A. with a [male] person matching the description of G.A.. This sighting occurred a few days before the court proceeding. G.A. denies having contact with A. at this time. [5] At the review hearing in June, 2003 the agency sought permanent care and custody of the children. A., A., Cst. Jodi Wilson, Cst. Stan Wadden, Cst. Shawn MacLean, Barbara Richardson, Todd MacRae and Patricia Bates MacDonald testified for the agency. Valerie Murrin, Mr. and Ms. A., B.D. Dawe, Sandra MacPherson, Myrna Phillips and G.A., Jr. testified for the parents. [6] During the direct examination of A. and A. the videotapes made of their interviews by the agency on February 19 and 25 respectively, were played in full. During direct examination each child testified that he or she remembered being interviewed as shown on the videotape and indicated that he or she was trying to give honest answers at the time. No objection to the playing of the videotapes was made at this time by the parents’ counsel who referred to the videotapes in great detail during cross-examination of both A. and A.. [7] During cross-examination A. testified that she sometimes lies. She recanted many of the statements she made in her videotaped interview and indicated she now wanted to live with her mother or Mr. A.. The agency sought to cross-examine A. as an adverse witness following her cross-examination and the trial judge allowed it to proceed given her inconsistent statements, subject to any objections the parents wished to raise to particular questions. No questions were objected to by the parents. During cross-examination A. denied first hand knowledge of many of the incidents he spoke about during his videotaped interview, indicating A. told him about them. [8] When A. and A. concluded their testimony at trial, the agency sought to tender certified copies of the transcripts of A.’s and A.’s videotaped interviews with agency personnel that had been played in court earlier in the proceedings. Counsel for the parents objected, but it is not clear from the record whether the objection related only to the transcripts or also to the initial playing of the videotapes. Unfortunately, counsel for the respective parents were not precise in articulating the scope or basis of their objection at this late stage in the trial. After considering their arguments, Justice Wilson admitted the transcripts and was prompted to say: . . . I don’t understand the argument. . . . We spent two days of listening to tapes and watching and now you’re saying they’re not to be admitted. . . . I don’t understand the argument, . . . It’s not a question of necessity and reliability. It’s evidence that we looked at, and that was the tapes. They acknowledged them as their evidence. . . . whether it’s reliable or not and credible, you can make arguments, . . . This is . . . the children . . . they were played, the children said . . . this was their evidence. They gave this tape. It was there. It’s evidence. I mean it’s like they were interviewed, the tapes were presented, they were identified as the tapes, there’s no question that these were these children, that is what they said. Now they were cross examined so it’s up to the Court to determine whether the evidence is reliable or not. It’s certainly evidence. It was taped. They said this is their evidence. . . . They were there and this is what they said. So to me it’s admissible. Now certainly on the question of whether the Court’s going to rely upon them, you can make your arguments, as you’re doing now, whether they’re reliable or not, but . . . there was no question that this is what they said at that particular time and they acknowledged it. So it’s . . . I’m satisfied they can be admitted as evidence. [9] Neither did the parents object when the videotapes themselves were later introduced into evidence through Constable Wadden. However, they did object to the agency worker’s evidence about what the children said to her and others on the basis it was hearsay. The trial judge admitted this evidence of the agency worker as narrative, to allow the agency worker to give the background as to why the agency took the children into care, but not for truth of its content. Trial Judge’s Decision [10] The trial judge found that the children were at substantial risk of physical and emotional abuse. He found the confrontational nature of the ongoing relationship between Mr. and Ms. A., centered around the misuse of prescription drugs and the presence of street drugs in their home, caused the needs of the children to be neglected and the stability of their residence and the security of their home environment to be threatened. He found this was not likely to change within the reasonably foreseeable future. He found Mr. and Ms. A. had not been able to overcome this risk to the children despite the services put in place for them for over a year and that they did not access these services in a meaningful way. He was not persuaded that H.A. and G.A. had ended their relationship. H.A. had breached a court order by visiting the children under the supervision of G.A.. The trial judge found that it was easier for H.A. to allow G.A. to care for the children until the court process ended “rather than submit herself to the compliance procedures of the court orders.” He found that neither parent had accessed services in any meaningful way to ensure that the variety of serious concerns raised when the proceeding first started, were adequately addressed. In the trial judge’s opinion, many services had been put in place to assist the A’s but the agency’s concerted efforts failed as neither G.A. nor H.A. had taken the services seriously. He found the placement of the children with relatives was not possible and that there was no plan for this before him. He found it was in the best interests of the children to be placed in the permanent care and custody of the agency in accordance with its plan, which was foster care for A. and A. and adoption for J. and J.. Standard of Review [11] The applicable standard of review is as set out in ¶ 18 of Family and Children’s Services of Lunenburg v. G. D. [2003] N.S.J. No. 416: 18 The Court of Appeal is not to retry the case or substitute its discretion for that of the judge at first instance. Rather, the role of this Court is to intervene only if the trial judge erred in legal principle or made a palpable and overriding error in his or her appreciation of the evidence: see, for example, 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. and F.Y. (2002), 207 N.S.R. (2d) 109 (C.A.). The advantages of the trial judge in weighing the many dimensions of the relevant statutory considerations and in appreciating the nuances of the evidence in relation to them require considerable appellate deference except in the presence of clear and material error. This standard of appellate review does not change where the best interests of the child are in issue: Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, at paras. 10 ‑ 16. Grounds of Appeal: [12] The issues on appeal as stated in the appellant’s factum are: A. Did the Trial Judge err in law by admitting unreliable and unnecessary hearsay evidence, and/or relying on it? B. Did the Trial Judge err in law by not ordering the least intrusive measures for ensuring the best interests of the children, due to not giving appropriate weight to all the relevant circumstances? C. Did the Trial Judge err in fact and in law by making unreasonable inferences based on the evidence, and then relying on such inferences? Appellant’s Argument [13] Mr. A.’s main argument before us was that the trial judge erred in admitting and relying on the videotaped statements of A. and A. because they were not necessary or reliable. He argued they were not necessary because the children testified at the hearing. He argued A.’s videotape was not reliable either as to threshold admissibility or any ultimate weight to be given to it because her evidence at the hearing before the trial judge differed from her statements in the videotaped interview; her statements during the videotaped interview were motivated by an argument she had with Mr. A. that morning; her demeanour on the videotape was “as though she was performing show and tell”; she lies and her evidence is contradicted by other evidence, including A.’s, and she is a troubled child. He argued A.’s videotaped statement was not reliable because he was relying on things A. told him, rather than on first hand knowledge, and his interview was tainted from conversations with agency workers before the interview. He argued the trial judge’s decision was unreasonable given its reliance on A.’s statements in her videotaped interview which were, he says, not true, which she recanted and which other witnesses said were fabricated. He argued that the negative findings of the trial judge concerning Ms. A. should not be considered on appeal since Ms. A. is not a party to the appeal. Respondent’s Argument [14] The agency argued that the comprehensiveness and structure of the trial judge’s decision indicates he had a good grasp of all the evidence before him and that the videotaped statements of A. and A. played a relatively insignificant role in his decision which was based on several factors. It pointed out that the trial judge recognized in his decision the need to be cautious with respect to A.’s evidence. It argued that the videotaped statements were admissible, and that the trial judge was in the best position to assess ultimate credibility and reliability with respect to the witnesses. It argued that the traditional concerns about admitting out of court statements were all met with respect to A. and A.’s videotaped statements because the trial judge could judge their demeanour during the interview by watching the videotapes, the parents would have the opportunity to cross-examine them, and the children had been asked about their understanding of the need to tell the truth before the interviews proceeded. Analysis [15] Bearing in mind the context and purpose of the trial judge's exercise of discretion to admit child hearsay pursuant to s. 96(3)(b) of the Act, I am not persuaded it is appropriate to impose any rigid formula for the receipt of such evidence. These are not criminal proceedings where the protections and concerns described in the governing jurisprudence such as R. v. Khan, [1990] 79 S.C.R. (3d) 1 (SCC), R. v. Smith, [1992[ 2 S.C.R. 915 (SCC), and R. v. Starr, [2000] S.C.R. 144 (SCC) necessarily arise. Here in the context of child protection proceedings, the discretion granted a trial judge to admit such evidence, whether or not the child in fact ever actually testifies in court, is found in s. 96(3)(b) which provides: Childs evidence 96 (3) Upon consent of the parties or upon application by a party, the court may, having regard to the best interests of the child and the reliability of the statements of the child, make such order concerning the receipt of the child’s evidence as the court considers appropriate and just, including . . . (b) the admission into evidence of out-of-court statements made by the child. 1990, c. 5, s. 96. [16] After carefully reviewing the entire record together with counsels' written and oral submissions I am satisfied that the trial judge had regard to the best interests of these children and undertook a proper inquiry with respect to both threshold admissibility, as well as the reliability or ultimate weight to be given to the out‑of‑court, videotaped and transcribed statements of A. and A.. This is especially so in view of the manner in which the evidence was put forward by the agency and challenged by the respective parents. I am not satisfied the trial judge’s admission of this evidence or the use to which it was put was an error. He recognized and addressed the several factors that warranted close scrutiny of the out‑of‑court statements. In a careful and thorough analysis he examined the whole of the evidence, all with the distinct advantage of having seen these children testify and be cross‑examined about their earlier statements. He was well placed to test and weigh their evidence, along with all of the other witnesses who testified, in his overall assessment of credibility. I am not persuaded that he erred in either his treatment or disposition of the evidence in any way that would warrant our intervention. [17] In coming to his decision that it was in the best interests of the children to be placed in the permanent care and custody of the agency, the trial judge considered the factors that he found the agency was concerned with at the time it took the children into custody and at the time of the hearing: the substantial risk of harm to the children as a result of Ms. A.’s ongoing substance abuse; Mr. A.’s ongoing drug related activities; the exposure of the children to drugs; the inappropriate physical discipline of the children and the verbal and physical confrontations between Mr. and Ms. A.. He determined those factors continued to exist despite the services that had been offered for over a year. [18] With respect to Ms. A.’s continued abuse of prescription drugs the trial judge states: [24] It has been difficult to engage H.A. in recommended services and to monitor her compliance with the conditions imposed by the various court orders. She attended her first drug test in February before the birth of J.. Subsequent to J. ’s birth, drug testing was scheduled three times a week at the local hospital. She attended for some appointments and missed others. She was referred to Mary Nichol for outpatient drug counselling. She attended some appointments and missed others. She stopped all drug testing and counselling by July 2002. She found a new apartment during the summer of 2002. Attempts were made to schedule random drug testings in her home. She did not make herself available. She attended some supervised access visits with her children through the agency and missed or cancelled other visits. By October she stopped all scheduled visits through the agency. There were reports later confirmed that she was attending at the residence of G.A. for access visits with the children. G.A. was not reporting these visits to the Children’s Aid. There was disagreement as to the number of these visits and how long they occurred. There was no contact between H.A. and the agency between August and December 2002. ... [45] H.A. has a significant substance abuse problem. The court is not able to determine that she has adequately dealt with this problem so as to resume the care of her children. She refused random drug testing and has not [attended] for outpatient addiction counselling since the summer of 2002. She stopped supervised visits through the agency with her children. She breached the court order by visiting the children under the supervision of G.A.. She concluded she wasn't going to have the children returned to her care and it was just as well for G.A. to have the care of the children. In my opinion it was easier for her to allow G.A. to care for the children until the court process ended rather than submit herself to the compliance procedures of the court orders. [19] With respect to Mr. A. not being able to provide a drug free home and the children’s exposure to drugs, in addition to his comments in ¶ 41 previously quoted in ¶ 2, the trial judge states: [39] G.A. only made contact with his addiction counsellor in late January and there was no reliable evidence to indicate that he is continuing his addiction counselling or benefiting from it.... ... [46] G.A. has not been able to ensure his home is free from drugs. His son G.A. Jr. admits to trafficking and G.A. himself was found in possession of a small quantity of drugs and H.A.'s prescription medication in March. He has not diligently accessed outpatient counselling services or parenting programs and the court is not sure of the status of any such programs he has initiated. G.A. also allowed H.A. to visit the children and not report these visits to the agency. [20] With respect to the nature of the ongoing relationship between Mr. and Ms. A., in addition to the events involving Ms. A. at Cam MacDonald’s house referred to in paragraphs 29 and 30 of his decision quoted in ¶ 2, he states: [44] I cannot conclude that H.A. and G.A. have ended their relationship. H.A. attended at G.A.'s residence on a regular basis for visits with her children without agency supervision and G.A. did not report these visits. On the night of February 18, G.A. was in H.A.'s apartment [waiting] for H.A. when the police and agency workers arrived looking for J. and J.. H.A. said that she often goes to G.A.'s apartment looking for money for taxi fare for work. G.A. said that he did not visit the children after they were in care because one parent was keeping in touch. G.A. had possession of H.A.’s percodan pills in March. He was also upset with H.A. being in the residence of [C. M.] on November 5th. ... [47] I find that H.A. and G.A. have a dependant relationship. They are quick to blame one another or report the others short comings only to recant them. Their relationship continues to be one of confrontation centered around the misuse of prescription drugs and the presence of street drugs in the home. As a result the children's needs are neglected and the stability of their residence and security of their home environment is threatened. [21] With respect to the use of services by Mr. and Ms. A. the trial judge states: [48] Neither H.A. [nor] G.A. have accessed services in a meaningful way to ensure that the concerns raised when this proceeding started have been adequately addressed. The court continues to have concerns about H.A.'s addiction. In May 2002 Michael Bryson said she was not ready to resume the care of her children and to‑date she has not been able to demonstrate a period of abstinence and compliance with services. G.A. has shown that although he personally is not consuming or taking drugs, his home environment is not free from drugs and his relationship with H.A. continues to be confrontational. The children's needs at this time include stability of residence, emotional support and a safe and secure environment. A. and A. are 13 and 12. They have been the subject of child protection proceedings in the past. G.A.'s children have been the subject of child protection proceeding in the past. J., two, and J., one, are at risk of suffering the same [fate] of continuous disruption in their care as their step siblings have experienced in the past. ... [50] Services have been put in place to assist the Respondents with the factors which resulted in the children being found in need of protective services. I find these services [to] promote the integrity of the family pursuant to Section 13 have been attempted and failed. Neither G.A. or H.A. has taken the services seriously. H.A. has failed to adequately address her substance abuse problem. G.A. has failed to ensure a safe and secure environment for the children in which to live. [22] The record supports all of these findings and a significant amount of the supporting evidence can be found in the testimony of witnesses other than A. and A.. [23] With respect to the inappropriate physical discipline of the children, the trial judge had the evidence of A. to this effect in her videotaped statement. It is clear he considered this evidence with caution and wisely subjected it to close scrutiny: [37] I agree that A.'s comments regarding discipline of herself by G.A. must be viewed cautiously. She feels picked on and may exaggerate or misrepresent incidents of conflict. However her evidence that H.A. was visiting home in contravention of the order and G.A. was not reporting these [visits] was accurate. H.A. was present the morning in February when G.A. and A. had their argument and A. did not return home. A.'s evidence of drugs in the home was subsequently confirmed by G.A. Jr attempting to distribute drugs from the home and G.A. being found in possession of drugs albeit after the children were taken into care. I also accept her initial evidence that she was present when G.A. went to the residence of [C. M.] on Townsend Street and the window was broken and police received a call that G.A. was threatening H.A.. The explanation of G.A. of his presence at the residence in the early morning hours that night and H.A.'s changing her report that G.A. did not threaten her is just not believable. A window was broken and police were called about a threat. I am satisfied Sandra MacPherson was mistaken that A. and A. were with her all night. A more reasonable conclusion is that A. and A. were present on the night in question and described what they saw which is surprisingly similar to what H.A. initially reported to the police. While A. and A. may have heard H.A. and G.A. talking about this incident after the fact, it wasn’t necessary for them to say they were present if they were not actually there. (Underlining mine) [24] As stated above, in light of the record which includes substantial evidence from witnesses other than A. and A., the appellant has not satisfied me that the trial judge made a palpable and overriding error in his consideration or application of the evidence. [25] Nor has the appellant satisfied me that I should disregard the negative findings that the trial judge made about Ms. A. on the basis she is not a party to this appeal. His findings related to Ms. A. were relevant at the hearing before him, and it is his decision from that hearing that is under appeal. In addition, given the trial judge’s findings as to the nature of the ongoing relationship between Mr. and Ms. A., his findings relating to Ms. A. continue to be relevant. [26] The appellant has also not satisfied me that the trial judge erred by not considering less intrusive alternatives before ordering permanent care, as required by s. 42(2) of the Act: 42 (2) The court shall not make an order removing the child from the care of a parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13, (a) have been attempted and have failed; (b) have been refused by the parent or guardian; or (c) would be inadequate to protect the child. [27] The trial judge’s decision makes it clear he considered whether there were any less intrusive alternatives. He specifically finds that services had been attempted and failed; that they were not accessed in any meaningful way by Mr. or Ms. A. in the year before the hearing when many services were available to them: [48] Neither H.A. or G.A. have accessed services in a meaningful way to ensure that the concerns raised when this proceeding started have been adequately addressed. . . . [50] Services have been put in place to assist the Respondents with the factors which resulted in the children being found in need of protective services. I find these services [to] promote the integrity of the family pursuant to Section 13 have been attempted and failed. Neither G.A. or H.A. has taken the services seriously. H.A. has failed to adequately address her substance abuse problem. G.A. has failed to ensure a safe and secure environment for the children in which to live. [28] There was nothing before the trial judge to indicate further access to services would be a successful alternative to permanent care and custody, even if the time frames set out in s. 45 of the Act had permitted it. [29] Nor has the appellant satisfied me that the trial judge made a patently unreasonable inference with respect to Mr. A.’s other children when he stated in ¶ 48: . . . The children’s needs at this time include stability of residence, emotional support and a safe and secure environment. A. and A. are 13 and 12. They have been the subject of child protection proceedings in the past. G.A.’s children have been the subject of child protection proceedings in the past. J., two, and J., one, are at risk of suffering the same [fate] of continuous disruption in their care as their step siblings have experienced in the past. (Underling mine) [30] The appellant argued that the reference to the step siblings of J. and J. in the last line of the quote is a reference to Mr. A.’s children by other relationships, and that there was no evidence before the trial judge that those children had “continuous disruption in their care.” [31] I am not satisfied the reference to step siblings in ¶ 48 of the decision is a reference to Mr. A.’s other children. It seems to me it is more likely the trial judge was referring to A. and A. as the step siblings of J. and J. since they were all living in the same home. There was significant evidence before the trial judge that the care of A. and A. had been substantially disrupted over at least the preceding three years. Even if I am wrong about this, not much turns on these two lines in his 35 page decision. It is hardly a matter that would constitute a “palpable and overriding error”. [32] Accordingly I would dismiss the appeal. Hamilton, J. A. Concurred in: Roscoe, J.A. Saunders, J.A.