H.A. v. Children's Aid Society of Halifax

H.A. v. Children's Aid Society of Halifax Court Court of Appeal Date 2002-06-28 Citation 2002 NSCA 94 Docket CA 178155 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Cromwell, Thomas A. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - H.A. v. Children's Aid Society of Halifax - 2002 NSCA 94 - 2002-06-28 - Library Sheet Decision Content Date: 20020628 Docket: CA 178155 NOVA SCOTIA COURT OF APPEAL [Cite as: H.A. v. Children’s Aid Society of Halifax, 2002 NSCA 94] Roscoe, Freeman and Cromwell, JJ.A. BETWEEN: H. A. and Z. A. Appellants - and - CHILDREN’S AID SOCIETY OF HALIFAX Respondent REASONS FOR JUDGMENT Counsel: David A. Grant for the appellants Peter C. McVey for the respondent Appeal Heard: June 21, 2002 Judgment Delivered: June 28, 2002 THE COURT: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Freeman and Roscoe, JJ.A. concurring. 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. CROMWELL, J.A.: I. Introduction: [1] H. A. appeals the finding of Gass, J. in the Family Division that two children, F. and A., are in need of protective services. The judge found that there was a substantial risk of emotional harm to the children and that they had suffered emotional harm under s. 22(2)(f) and (g) of the Children and Family Services Act, S.N.S. 1990, c. 5 as amended. She also found, under s. 22(2)(h), that they suffered from a mental, emotional or developmental condition which their caregivers, one of whom is Ms. A., do not provide services or treatment to remedy or alleviate. [2] The appellant argues that the judge was wrong to make these findings, advancing three main points. The appellant argues that: (i) there was insufficient, if any, evidence to meet the Society’s burden of proof that the children were in need of protective services; (ii) the judge erred in refusing to amend the interim placement order; and, (iii) she erred by failing to give sufficient weight to “... the principle that the children should remain with the family.” [3] For reasons that I will set out below, I would dismiss the appeal. There was, in my view, ample evidence to support the judge’s finding that these children were in need of protective services. She did not err in failing to order their return home and she did not fail to consider, to the extent required in the proceeding before her, the principles emphasizing the integrity of the family. II. Facts: [4] The facts of this case are as unusual as they are unfortunate – features that were not at all lost on Gass, J. The appellant and the children, along with her sister Z. A. who was a party in the Family Division but did not participate in the appeal, came to Canada as S. refugees. As is evident from the record and the judge’s reasons, there are serious language difficulties in the dealings between the appellant, the Agency and others attempting to help the family. These gave rise to serious risks of misunderstanding and misinterpretation. There are, as well, cultural and life-experience issues which appear to affect the interaction of the appellant and the children with persons in authority. These factors were recognized by the judge and by others including the various professionals who gave evidence and authored reports presented at the hearing. The judge recognized that there were many unanswered questions about the situation of these children. [5] The appellant and her sister, Z. A., and the two children who were born in 1992 and 1993 left their homeland of S. and went as refugees to D.. Eventually they were sponsored for immigration to Canada by a United Church Committee in S. under the Women at Risk program. They arrived in S. in August of 2000. [6] In S., the children attended * (Editorial note- removed to protect identity) School. While there, according to the evidence at the hearing, the children were showing signs of what one witness described as post-traumatic stress. They exhibited behaviours described as “hide, hoard, flee and fight.” In the words of D.T., who was part of the sponsoring committee in S. and who had extensive contact with the family there, “...it’s a no brainer to think that those children suffered trauma.” While there were complaints by the family concerning taunting by other children and an incident, which was not substantiated, of a teacher striking one of the children, there were no reports while the family was in S. of sexual abuse of the children at the school. [7] After a fairly good beginning in S., things deteriorated for the family and for their relationship with the sponsoring committee. The family apparently got some very bad news about the death of some family members in S. which resulted in the family being very upset and which added to their apparent feelings of isolation and loneliness. There was also an incident in which Ms. A. went to an eye doctor who put in drops to dilate her pupils. Contrary to expectations, it took an unusually long time for the pupils to return to their normal size and she could not see clearly for a few days. This appears to have engendered mistrust on her part of the doctor and the member of the sponsoring committee who took her to the doctor despite attempts to explain the situation to her. [8] The family reached out to other S. people and relatives and eventually moved to Halifax in May of 2001. [9] Once in Halifax, the children enrolled in the (Editorial note- school name removed to protect identity) , and apparently finished out what was left of the school year there. They re-registered for September and attended about three days in that month. There were problems early in the year (apparently on September 11) when A. refused to do what he was asked by a teacher and tried to run away, kicking the teacher in the process. A meeting among school officials and H. and Z. followed. It seems that they, wrongly, understood that they were being accused of child abuse and the situation deteriorated. The police were called as the principal wished the family to leave the school grounds. [10] It is perhaps significant in light of later events to note that no allegation of sexual abuse was made to the police at that time or subsequently until October 31. Apparently September 11 was the children’s last day at * . It seems the children did not attend school again until they started at * in early November. (*Editorial note- school name removed to protect identify) [11] On October 15, 2001, the Children’s Aid Society of Halifax received a referral from Ms.W. , the principal of (Editorial note- school name removed to protect identity) Halifax, respecting the non-attendance of the children at school. The Agency decided that there were no grounds for intervention under the Act and that it would be appropriate for the school to follow up. [12] On October 31, 2001, the Agency received a referral from the IWK Health Centre. The appellant and Z. A. had taken the children to the police station and then to the IWK Health Centre alleging that the children had been sexually and physically assaulted at school. They had not been in school since September the 11th. A. reported being sexually assaulted in the bathroom by a man who made him drop his pants and anally penetrated him. F. described being restrained in the principal’s office at this time. Ms. A. reported that A. suffered from rectal pain, abdominal pain and had not been walking, suffered from diarrhea and had been passing bloody stools. The children demonstrated for medical personnel how they walked with an unusually wide gait, but were observed walking normally when unaware that they were being watched. [13] Medical examinations revealed nothing to support any of the allegations. As Dr. Morrison put it in her report of November 2, the children did not appear to have a medical cause for their symptoms and the family appeared to be undergoing significant emotional distress at the time. [14] On November 2, Ms. A. told Ms. W. , the principal of *, that the children had been sexually assaulted at * and added that they had been beaten and poisoned while attending school in S.. Ms.W., of course, reported this information to the Agency. She described the children as walking “bow-legged”. Ms. A. described the children as very sick. On November 8, Ms. A. told Ms. W. that “a man fuck him” in relation to A. and there was blood on his anus, that he “peed blood” and that the same had happened to F.. (* Editorial note- School names removed to protect identity) [15] The children attended * on November 9 for the first time. Ms. W. thought, as a result of her observations, that things had gone well but was told by Z. A. that A. had reported that his teacher had pushed and slapped him. The children attended school again on the 13th and the day appeared uneventful. They were not in school for the next three days. (* Editorial note- school name removed to protect identity) [16] On November 14, Ms. Musanovic, a crisis worker with the Metropolitan Immigrant Settlement Association, contacted the Agency and reported that Ms. A. and the children were in her office reporting sexual abuse at *. (Editorial note- school name removed to protect identity) [17] Ms. A. returned to S., apparently on the weekend of November 17/18, and asked for a meeting with the sponsoring committee. She reported to members of her immigration sponsoring committee that the children had been “drugged and raped”, that they, or one of them, had a needle stuck in a vein and had been “fucked”. There were allegations concerning the * and concern that there was somebody at * who was following them and harassing the children. Ms. A., according to Ms. T., also spoke to the committee of the fact that the children “grew in her belly” even though they had always understood that Ms. A. was the children’s aunt. As a result of this meeting, Ms. T. called the Agency and workers with the Agency interviewed her and another member of the committee on November 20 and 22. (* Editorial note- school names removed to protect identity) [18] The children returned to school on November 19 and on that day, A. told Ms. W. that “you put stuff in my mouth in the bathroom” and that F. told her that “you inject us three times in arm.” The children were observed to walk bow legged. [19] The next day, November 20, the Agency received a referral from the police who called from the school stating that the children had alleged that “a big black man” had come into the school, taken them to the bathroom and sexually assaulted them. The police reported that the children were walking without bending their legs. The children were withdrawn from the school. Ms. W. was of the view that Ms. A. did not wish the children to be in school. [20] The Agency conducted an investigation and concluded that there were reasonable and probable grounds to believe the children were in need of protective services. Arrangements were made for an investigative interview. This did not occur as the appellant and Z. A. refused permission for the interview to proceed if they were not in the same room as the children at the time of the interview even though they would have been able to see the children through one way glass. [21] On November 23, 28 and 30, the Agency consulted with Dr. Morrison and other medical staff. It was recommended that there be medical follow-up for the children and that they be separated from their caregivers for several days for pediatric and psychiatric observation and further that the adults be referred by their family doctor for examination and assessment. As Dr. Morrison pointed out in her December 7 report, there was “a significant abnormality in the way the caretakers presented”, the allegations made by them were “somewhat bizarre in nature”, the children “... were expressing distress in their refusal to walk” and were making allegations in relation to staff at the school. “The allegations were happening very frequently and it was felt that repeated exposure to these allegations were affecting the care the children received.” Also noted by Dr. Morrison was the concern that the children were not attending school. [22] The caregivers would not agree to the children being admitted to hospital and separated from them for a period of time. This led, on December 3, to what the judge described as “a horrible example of an apprehension gone wrong.” She noted that she had “... grave concerns about what happened on December 3rd” and that she could not “... conclude that what happened on December 3rd could in any way, shape or form be considered to have been in the interest of the children or to be any less traumatic than anything else that they had experienced to date.” [23] The children were then hospitalized for a period of time. Dr. Morrison in her December 7 report, and not with overstatement, characterized this as “... a most difficult situation.” She commented as follows: ... F., in particular, made multiple bizarre statements, such as stating that she had remembered me from our prior assessment and that I had taped the interview with a radio that I carried, which was not true. She stated that I refused to give her caretakers the results of the tests (eg - A.’s x-rays), which again, was not true. She also stated that other staff, including the Children’s Aid Society (CAS), had slapped her. F. described through the interpreter an assault which is said to have occurred at school in S., NS. She described that she and A. were taken from the classroom by female school staff and beaten. This occurred when their aunt did not accompany them to school. Her aunt apparently approached the teachers and was told that she could supervise the children in the classroom. She did so for one month, and then, according to F., 2 days after she stopped attending, “that’s when the rape started.” When I asked what “being raped” meant, she suddenly changed the subject and stated, “I know what you’re up to. When I was in the playroom, you put video tapes and recorders in the hospital room. Although I can’t see them, I know you’re taping everything I’m saying.” ... Of interest, the children, on presentation to hospital and during the entire admission, had no abnormalities in their gait or walk. There were no physical complaints and when they began eating, within that first day of admission, there were no problems with digestion. Psychiatry was consulted and attempted to assess the children. This was limited as F. declared that she and her brother would not be talking to the physician. Our understanding of the children’s emotional disturbance is also limited by our lack of understanding of their previous life experience, and the short time of observation. The children require long term assessment. The overall concerns for the children is (sic) the highly suspicious nature which they and their caretakers demonstrate, which has significantly impacted their life functioning. The repeated allegations and unusual thought processes which the children have repeated in hospital are outside of usual childhood experience and comprehension. There is concern that ... these thoughts have been imposed upon them or perpetuated by their caretakers. This appears to have led to significant emotional distress to these children, and, as mentioned, they were exhibiting physical signs, such as refusal to walk, and walking with a wide-based gait in the past. They are also refusing to go to school as they believe they will be beaten and raped at every school that they attend. They are certainly hyper-vigilant and very parentified in their behaviors. They have absolute mistrust of anyone with whom they come in contact. The understanding of their problems will take quite some time and there will be no easy answers. [24] Dr. Stokes, a psychiatrist, saw the children during their time in hospital and noted as follows: A. appeared ready to cooperate initially and identified himself as coming from D. and then described moving to S. and then to Halifax. He told me he was living with his sister, his mother and his aunt. I asked him what things he liked to play with and but (sic) F. interposed herself and said that they did not play and could not because their privates hurt. She said that they had all kinds of toys at home, but she had told her mother that it was a waste of money. She sat down and when she was tired of sitting, she walked around the apartment. I asked A. about games outside and, for example, riding a bicycle, and her sister again said that they didn’t ride a bicycle. When the interpreter reminded her that she had done so when they had visited his family, F. became angry and asked why all these foolish questions were being asked, and why wasn’t I asking him about the problems. ... Several diagnostic possibilities need however to be considered. It may be that the children suffer from an imposed disorder (Shared Psychotic Disorder - 297.3), a disorder where individuals in very close relationship to an individual with a delusional disorder share that disorder and have delusions similar in content. In such cases, the disorder remits over time if the individual is removed from the influence of the primarily affected individual. Another possibility is that F. and A.’s mother and aunt have reacted to the children’s reporting of events in school and elsewhere, interpreting what has been said in a particular way. It is possible that prior experiences may lead them to accept possibilities that others might find highly improbable. One wonders if the children were extremely uncomfortable in school perhaps because of anxiety over their academic skills in relation to their classmates or because of separation issues. Finally, the possibility that the children have been persistently abused in a serial fashion requires to be investigated no matter how improbable this may seem to be. [25] Various interim orders were made and the children were placed (and continue to reside) at the D.C.C. where, after an exceptionally rocky start, they have apparently settled in reasonably well and are co-operating in educational and other programs. [26] The proceedings leading to the finding under appeal took place over five days in February and March of this year. During the hearing, Ms. A. testified, through an interpreter, that there had been abuse of the children in addition to that previously reported. She said, for example, that F. had reported that when she was in the washroom at school in S., three grade six students came into the washroom, beat her, took her clothes and raped her, that A. was taken by a teacher to the washroom who stood outside the door while a “fat boy” made him sit on his lap and penetrated him anally. She said that the police came to the school, took the children to a far place and raped them and that they had been assaulted by an “other big man” in the washroom of the school. She testified that she believed that this abuse had, in fact, occurred and was concerned that it might be repeated if the children were again in her care (her plan was for them to attend the * ) and that, in essence, she would continue to handle the matter as she had in the past. (* Editorial note- school name removed to protect identity) III. The Judge’s Decision: [27] In an oral decision given on March 5, which was the 90th day following the filing of the Protection Application, the judge found the children to be in need of protective services pursuant to s. 22 (2) (f), (g) and (h) which provide: 22. (2) A child is in need of protective services where (f) the child has suffered emotional harm, demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour and the child’s parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm; (g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm; (h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the condition; [28] The judge said this: There does appear, however, to be evidence of substantial risk of emotional harm and I conclude that there is a real danger apparent on the evidence of substantial risk of emotional harm and although actual emotional harm was not pleaded, I would go so far as to suggest that there actually has been evidenced by the manner in which these children have escalated and behaved, and I am not considering what has happened since the taking into care because I think what has happened since the taking into care to some extent is attributable to the actual taking into care and not the emotional harm that has resulted for whatever reasons, many of which are still unknown to these children where they have been extremely anxious. They have been very aggressive. They have taken on the aura of someone who has been injured in a significant way. They have been isolated and removed from their society and the normal interaction with other children and certainly I am satisfied that all of those elements do support a finding of substantial risk of emotional harm apparent on the face of the evidence. As well I am satisfied under subsection [h] that the children do suffer from an emotional condition that if not remedied can seriously impair the children’s development and the parents are unable to consent to services or treatment to alleviate that condition. What that emotional condition is, is unknown but it is clear from the evidence that there is an emotional condition there which if not addressed would impair their ability to grow into happy, healthy children, young adults and adults and certainly on the basis of the evidence, I am satisfied that the children are in need of protective services. IV. Issues: [29] The appellant raises three main points which subsume the numerous specific issues raised in the notice of appeal: 1. Did the trial judge err in finding that there was any evidence that the children were in need of protective services or if there was evidence whether the respondent has met the burden of proof. ... 2. Whether having found the children were in need of protection whether the judge had power to amend the interim order in the circumstances without specific notice to the respondent. ... 3. Whether the trial judge took into account the principle that the children should remain with the family. ... V. Analysis: 1. Standard of Review: [30] The role of the Court on this appeal is to determine if there was any error of law or palpable and overriding error of fact made by the judge at first instance. It is not to review the written record and substitute our view for hers: Family and Children’s Services of Kings County v. B.D. (1999), 177 N.S.R. (2d) 169; N.S.J. No. 220 (Q.L.) (C.A.); Nova Scotia (Minister of Community Services) v. S.M.S. (1992), 112 N.S.R. (2d) 258; N.S.J. No. 238 (Q.L.) (C.A.) at 268 - 9 of N.S.R. The advantageous position of the judge at first instance, particularly in proceedings of this kind, entitles that judge’s decision to considerable deference absent clear error: Family and Children’s Services of Kings County v. C.R. (1992), 118 N.S.R. (2d) 1; N.S.J. No. 531 (Q.L.)(C.A.). 2. First Issue: Sufficiency of the Evidence: [31] The appellant submits that there was no evidence, or at least insufficient evidence, to discharge the Agency’s burden of proof that these children were in need of protective services. The argument is that the “emotional condition” is unspecified and that the evidence amounts to nothing more than there are issues that need to be explored. In short, the appellant says it is not enough for the judge to find that there is some unknown emotional condition. Moreover, it is submitted that subsections (g) and (h) require findings that the children’s caregiver “... does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate...” the risk of emotional harm or the emotional condition: s. 22(2) (g) and (h). [32] I cannot accept these submissions in the context of the judge’s decision read in light of the record before her. The judge had abundant evidence to support her conclusion respecting emotional harm and risk of emotional harm. This included evidence of the children’s extremely anxious behaviour as reflected in the repeated and escalating allegations of abuse, their taking on the aura of children injured and unwell, an aura unsupported by the medical evidence, their reports of unsubstantiated medical conditions and their prolonged absence from school. The evidence showed that the appellant appeared incapable of addressing this situation in an appropriate manner and indeed proposed to return the children to one of the schools in which the alleged abuse had been perpetrated. The record makes it obvious, in my respectful view, that these children are very troubled and at serious risk. The fact that the depth of the trouble in combination with the appellant’s conduct made more precise definition of the trouble impossible up to the time of the hearing does not, in my view, take away from the palpable risk of emotional harm evidenced in the record. [33] Faced with these unusual and numerous allegations of abuse and the disturbing behaviour of the children, Ms. A. has not co-operated with the Agency in its attempts to carry out a full and obviously much-needed assessment. She would not co-operate with the investigative interview which the Agency wanted to conduct with the children nor with the assessment it wished to undertake at the IWK. While the apprehension appears to have been badly handled, that does not take away from the disturbing allegations and troubling behaviour of the children and the apparent unwillingness or inability of Ms. A. to assist the Agency in getting to the bottom of them. 3. Second Issue: Amendment of the Interim Order: [34] On this ground, the appellant submits that the judge erred in not simply returning the children to their caregivers even in light of her finding that the children are in need of protective services. In my view, this argument has no merit. The judge said, in my view correctly, that to return the children home would be to simply place them in exactly the circumstances that necessitated intervention in the first place. 4. Third Issue: Integrity of the Family: [35] The appellant submits that the judge failed to consider various provisions of the Act, particularly several clauses of its preamble, that state in various ways and in various contexts that the integrity of the family and the use of the least intrusive means are foundation principles of intervention under the Act. [36] In my respectful view, the judge did not fail to consider these principles to the appropriate extent. She expressly referred to the preamble of the Act, noting that children should be removed from parental care only when all other measures are inappropriate. Moreover, the determination of whether the child is need of protective services is primarily a factual matter focussed on the determination of whether the grounds of intervention listed in s. 22(2) of the Act have been established. The judge addressed herself to this inquiry and in doing so, she did not, in my opinion, fail in her statutory duties under the Act. VI. Disposition: [37] I would dismiss the appeal. [38] I should add that the respondent offered new evidence on appeal which related to the recent decision in this matter in the Family Division at the disposition stage. While this sort of update is often helpful, it was objected to by the appellant and was not relevant to the issues raised on appeal. I have, therefore, not considered it in reaching my conclusion. Cromwell, J.A. Concurred in: Freeman, J.A. Roscoe, J.A.