S.G. v. Children Aid's Society of Cape Breton

S.G. v. Children Aid's Society of Cape Breton Court Court of Appeal Date 1995-05-23 Citation 1995 NSCA 107 Docket CA 112383 Judge/Registrar/Adjudicator Matthews, Kenneth M., (Honourable Justice); Freeman, Gerald B. (Honourable Justice) (CA); Pugsley, Ronald N. (Honourable Justice) Document Type Decision Decision Content C.A. No. 112382 NOVA SCOTIA COURT OF APPEAL Cite as: S. G. v. Children’s Aid Society of Cape Breton , 1995 NSCA 107 FREEMAN, MATTHEWS AND PUGSLEY, JJ.A. BETWEEN: S. G. ) Susan Hardy ) for the Appellant Appellant ) ) ) - and - ) ) ) Lorne MacDowell ) for the Respondent ) CHILDREN'S AID SOCIETY ) OF CAPE BRETON ) Respondent ) ) ) Appeal Heard: ) March 29, 1995 ) ) Judgment Delivered: ) May 23, 1995 ) ) ) Editorial Notice Identifying information has been removed from this electronic version of the judgment. THE COURT: The appeal is dismissed per reasons of Freeman, J.A.; Matthews and Pugsley, JJ.A. concurring Freeman, J.A.: Just prior to a decision by a judge of the Nova Scotia Family Court that her son was at risk of physical and emotional abuse and in need of protection, the appellant moved to Ontario; she has obtained evidence of health care professionals she has consulted there and now seeks to include this as fresh evidence to be considered in her appeal of the order for permanent care and custody in favour of the respondent agency. We received the proposed evidence in the form of an affidavit by the appellant with supporting exhibits at the beginning of the hearing and reserved decision as to its admissibility pending the hearing of the appeal. This is the procedural approach set out in R. v. Stolar, [1988] 1 S.C.R. 480 which reaffirms the four-part test set out in Palmer v. R., [1980] 1 S.C.R. 759. That test applies in modified form to child protection proceedings: see the judgment of L'Heureux-Dubé, J. in Catholic Children's Aid Society of Metropolitan Toronto v. M(C.), [1994] 2 S.C.R.. 165 at pp. 186 ff. She expresses a preference for the reasoning in Re Genereux and Catholic Children's Aid Society of Metropolitan Toronto (1985), 53 O.R. (2d) 163 (C.A.) over that of this court in Nova Scotia (Minister of Community Services) v. S. (S.M.) (1992), 41 R.F.L. (3d) 321. In S. (S.M) Chipman, J.A., applying Stolar, expressed the concern that: If such evidence were to be received and weighed, the court would have to consider it against the backdrop of all of the evidence which it did not hear - that which was before the trial judge and upon which findings have already been made. A finality to the fact-finding process has to be reached. Experience has shown that this is generally best done by the original trier of fact. With respect to Genereux L'Heureux-Dubé, J. stated: On the hearing of the appeal and with leave of the county or district court hearing the appeal, further evidence relating to matters both preceding and subsequent to the making of the decision being appealed, may be received by affidavit, oral examination or as may be directed by the county or district court. . . . It can be seen that the judge hearing the appeal is granted a very wide discretion with no restrictions imposed. This is remedial legislation dealing with the welfare of children. It should be broadly interpreted. Undue restrictions should not be placed upon it. Specifically, narrow restrictions should not be read into the section when they do not appear in the legislation. The judge on appeal, bearing in mind that he is dealing with the welfare of children, may determine that he will exercise his discretion and will hear further evidence so long as it is relevant to a consideration of the best interests of the child. (Emphasis in original.) . . . Although it might be more in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance. In M.(C.) the Ontario Court of Appeal allowed an appeal from a judgment granting access to the natural mother of an adopted child after hearing new evidence submitted on behalf of the child. The new evidence adduced by the respondent children's aid society consisted chiefly of lengthy affidavits from a psychiatrist and a child management worker to the effect that the child felt her foster family was her real family and she did not want to return to her birth mother. The possibility of access visits occurring had a severe effect on her emotional, psychological and physical well-being. On the issue of the new evidence L'Heureux-Dubé, J. concluded: After reviewing the new evidence sought to be introduced before us, there is no doubt that it meets the test for admission. In particular, it could not have been adduced before, is highly relevant in that it enables the Court to make determinations on an accurate picture of the situation at hand, is potentially decisive as to S.M.'s best interests and is credible. In addition, the evidence is uncontroverted and bridges the gap between the evidence submitted before the Court of Appeal in May, 1993, and the present situation. In light of the Court's broad discretion to admit fresh evidence and the legislated objective of the CFSA requiring the court to act in the best interests of the child in child welfare proceedings, the respondent society's motion to adduce fresh evidence must be allowed and the evidence admitted. Section 49 (5) of the Nova Scotia Children and Family Services Act, S.N.S. 1990, c. 5 provides statutory authority for the admission of fresh evidence in the circumstances considered both in M.(C.) and in this appeal. It provides: 49 (5) On an appeal pursuant to this section, the Appeal Division of the Supreme Court may in its discretion receive further evidence relating to events after the appealed order. The distinction between this case and M.(C.) is the quality of the new evidence provided to the court. The affidavit of the applicant with its exhibits does not meet the standards of the test applied by L'Heureux-Dubé, J. The respondent, the Children's Aid Society of Cape Breton, initiated proceedings May 18, 1993, for a finding that J. B. G. H., also known as J. G., born December *, 1992, was in need of protective services pursuant to s. 32 of the Children and Family Services Act. He was alleged to be at substantial risk of physical harm (s. 22(2)(b)); emotional harm (s. 22 (2)(g)) and to be suffering from physical and emotional harm caused by exposure to repeated domestic violence (s. 22(2)(1)). After a number of hearings the agency took the child into care, alleging that the child was at risk because the appellant and her common law husband B. H. were not conforming with the provisions of court orders imposed for the protection of the child. The child was returned to his parents February 1, 1994, but was taken into care again May 20, 1994. A series of hearings resumed culminating in the decision appealed from, by His Honour Daryl Wilson, J.F.C., placing the child in the permanent care and custody of the agency with no access to the parties or relatives. The first ground of appeal is that D. G., S. G.'s mother, was denied an opportunity to be heard at the hearing in October, 1994, and thus deprived of natural justice. The record shows that despite the fact that D. G. never applied for party status, from the time it was known she intended to present a plan efforts were made by the court to accommodate her and she was once flown from Ontario to be present at a hearing in October, 1994, but did not testify. She informed the court she had a lawyer but none appeared on her behalf. The court nevertheless considered her plan, under which the child would come to live with her in *, Ontario. S. G. lives in a basement apartment in her mother's home in *, where she had a second child shortly after moving there from Cape Breton at the time of the hearing in October, 1994. D. G.'s plan was rejected by Judge Wilson on reasoned grounds as follows: In my view, D. G.'s plan is little more than providing a physical environment where her daughter S. and her grandson J. can reside together. Given her lack of appreciation of the risks to J., I agree with Dr. Pye that she is unlikely to take adequate steps to protect him from these risks. The substantial risks to J.'s emotional and physical health, if he were placed in the care of D. G., outweigh any benefits D. G. may have as a care giver. I therefore conclude that it is not possible to place J. with his grandmother D. G.. I would reject this ground of appeal on the merits and because D. G. is not a party to this appeal, never having filed a notice of appeal. S. G. has no standing to bring an appeal on her behalf. The second ground was that Judge Wilson gave undue weight to the evidence of Dr. Carol Pye, a psychologist in whose opinion S. G. was not a fit parent. The appellant asserts Dr. Pye's evidence was contradicted by the evidence of other "involved professionals" and was demonstrably wrong. The weight of evidence is a matter for the trial judge in his assessment of the facts. His decision is entitled to deference by an appeal court, which has not heard nor seen the parties and the witnesses. [See Family and Children's Services of King's County v. D.R. et al. (1992), 118 N.S.R. (2d) 1 (S.C.N.S.A.D.); Nova Scotia (Minister of Community Services) v. S.M.S. et al. (1992), 112 N.S.R. (2d) 258 (C.A.); M.D. v. Children's Aid Society of Halifax (1994), 130 N.S.R. (2d) 132 (C.A.).] In child welfare matters the deference to be shown the decision of the trial judge, and the assessment of errors of law and fact, must be determined in the light of the best interests of the child as defined by the Children and Family Services Act. The record of the Family Court hearings makes it clear that Judge Wilson was obviously mindful of the best interests of the child in the context of the Act and applied the law to the evidence before him. I have not been persuaded that Judge Wilson committed reversible error and I would dismiss the second ground of appeal. Ordinarily, in a matter not involving the welfare of a child, a finding that the trial judge committed no reversible error would dispose of the appeal. However the third issue in this appeal stated by the appellant is as follows: In relation to Ground B, the Appellant seeks to adduce affidavit evidence pursuant to s. 49(5) of the Children and Family Services Act. C.(M.) makes it clear that fresh evidence can result in reversal of the judgment of the trial judge in the absence of error when it is in the best interest of the child. An appellant can succeed upon the introduction of new evidence in two ways. If the evidence relates to facts existing prior to the hearing, the appellant must show that the judge would have arrived at a different result in the best interest of the child if the new evidence had been adduced at the trial. If the evidence relates to facts which arose after the hearing, the appellant must show that the result reached by the trial judge is not, or is no longer, in the best interest of the child. When the issue is an order for the permanent care and custody of a child and the new evidence relates chiefly to the period after the order is made, the threshold question for counsel is whether to proceed by way of appeal or by way of an application for termination of the order. Section 48 of the Children and Family Services Act provides a party such as Ms. G. with the right to apply for leave to terminate the order after expiry of the 30 day appeal period; if the application is made more than six months or less than two years after the order, no leave is required. On the hearing of the termination application the family court judge has the power to adjourn the hearing for ninety days for psychiatric, medical or other examination or assessment, and may further adjourn the hearing for six months to place the child in the custody of parents or others on a trial basis. This court lacks that flexibility on an appeal; it is under rigid time constraints. A notice of appeal must be filed within thirty days and the appeal must be heard within ninety days. In S.(S.M.), Justice Chipman considered applications under s. 48 and concluded: Thus the Act contemplates that a party is to have the benefit of favourable changes in circumstances to mitigate the drastic consequences of an order for permanent care and custody. Generally then, it is to be expected that parties who claim there has been a favourable change since the order would use this statutory machinery to obtain relief. Judge Wilson's order was based upon the appellant's own shortcomings as a parent. While the appellant seeks to adduce some of the new evidence in an attempt to contradict evidence before the Family Court, much of it relates to her efforts to rehabilitate herself in Ontario. Personal rehabilitation or reform cannot be realistically demonstrated in a ninety day time frame. Obviously the legislature intended that parents who are endeavouring to overcome their personal difficulties should seek to recover their children by applying to terminate the order for permanent care and custody, rather than by appealing the order. The evidence the appellant seeks to adduce must be considered in the context of Judge Wilson's thorough and carefully considered decision He found that sincere efforts had been made by various professionals to help S. G. improve her parenting capabilities while she was living in Cape Breton, but she "was not forthright with them and was not able to benefit from the assistance they were so willing to provide." He found: S. G. is not a credible witness and cannot be believed. It was the witness T.M. who stated, "she denies the simplest of truths." She has given assurances that she would not have any contact with B. H., that she would not consume alcohol, and within days of giving these assurances has wilfully and purposely ignored them. At the bail hearing for B. H. after he was charged in April, S. G. testified on his behalf and assured the court that she would not have any contact with him pending the trial. Not long after B. H. was released from jail, he attended at the residence of S. G. with her knowledge and consent. She subsequently misled the agency about B. H. being at her apartment. He considered the detailed report of Dr. Carol Pye, a psychologist who was qualified to give opinion evidence with respect to parenting capacity, psychological assessment, and clinical psychology--adult and child. He said he attached "a considerable amount of weight" to the report and noted that while B. H. accepted the findings that his own rehabilitation would take at least five years, S. G. denied the report as being a true reflection of her personality and her circumstances. Dr. Pye diagnosed S. G. as having "an anti-social personality disorder--psychopathic type." Dr. Sharma, a psychiatrist who treated S. G. in March, 1994, also diagnosed an antisocial personality disorder. Dr. Pye also assessed S. G. as having a serious substance abuse problem which she has denied although acknowledging a prior significant substance abuse problem for which she received no adequate treatment. Judge Wilson observed with respect to Dr. Pye's evidence that in her opinion: ...Ms. G. would have difficulty with emotional nurturing or compassion and would minimize the negative impact of upsetting events or adverse circumstances on the child. Dr. Pye also stated that the hedonistic, egocentric aspects of her personality indicate that Ms. G. would put her own pleasures and needs ahead of a child in her care. In Dr. Pye's opinion, she is likely to continue to abuse substances while caring for a young child and therefore there continues to exist a potential risk to neglect a child in her care. In Dr. Pye's opinion, the risk factors which existed at the time the child was taken into care such as substance abuse by his father, failure of the couple to comply with court orders, and continuing spousal violence, continue to exist. . . . In the opinion of Dr. Pye due to S. G.'s severe personality disorder, treatment prospects are poor and there is no reasonable prospect that J. could be returned to her care and have adequate care and safety. In his conclusion Judge Wilson stated: There has been an ongoing history since March [May], 1993, of agency involvement int the protection of this young child. The child was found to be in need of protective services in August, 1993 on the basis that there was substantial risk of physical harm, substantial risk of emotional harm and he was suffering physical and/or emotional harm caused by repeated domestic violence. The risk to the child's physical and emotional health and development which existed at the time of the finding in August, 1993, continue to exist at the time of this hearing in October, 1994. The child is still in need of protective services . . . I find that given the personality assessments of S. G. and B. H., the severe addiction problems of B. H. and the lack of cooperation and deceit of S. G. and B. H., the circumstances justifying an order for the removal of their child from their care are unlikely to change within a reasonably foreseeable time frame based upon the age of the child. He found that Ms. G. had not discharged the burden on her to prove that access would be in the child's best interests. The new evidence we are asked to consider consists of S. G.'s affidavit supported by letters from Family and Children's Services *, the * Alcohol and Drug Assessment Service; the * General Hospital; a Niagara Life Centre caseworker; *, a * counselling service; her probation officer in *, N.S.; Dr. M.J., a * psychologist who administered a Minnesota Multiphastic Personality Inventory; Dr. D.A.H. of *, her family doctor; and A.S.D. of *, a behavioral consultant. The statements in each exhibit are highly favourable to Ms. G. and are therefore in conflict with a great deal of the evidence before Judge Wilson. Much of this material is opinion evidence by persons whose qualifications are not before the court. It was prepared following the October, 1994, hearing and thus reflects a limited period for observation. Much of it originated from interviews with S. G. whom Judge Wilson found not to be credible. She admitted in cross examination to having lied to the police, the court and the agency. The letter of the * Alcohol and Drug Assessment service report dated March 25, 1995, says "Ms. G. to date reports being abstinent from alcohol and drugs for approximately one year." That is not seriously inconsistent with the evidence before Family Court, but it is inconsistent with the March 16 report of * General Hospital which says "S. states she has not used alcohol or a drugs since December, 1993." There was evidence before Judge Wilson that she had been involved with alcohol or drugs in April and May of 1994. For this evidence to be admissible it must meet the criteria determined by L'Heureux-Dubé, J. in C.(M.). That is, it must be evidence that: (1) could not have been adduced before; (2) is highly relevant in that it enables the Court to make determinations on an accurate picture of the situation at hand; (3) is potentially decisive as to the child's best interests; (4) is credible; (5) is uncontroverted; (6) bridges the gap between the previous hearing and the appeal. While all these factors were present in C.(M.), L'Heureux-Dubé, J. did not suggest they all must be present before fresh evidence can be admitted in child welfare appeals. Nevertheless, each of the criteria is highly relevant. Credibility was referred to above. That key criterion is further complicated because of the problems inherent in the determination of credibility by an appeal court panel. The appeal court does not see nor hear the witnesses, yet its findings as to credibility must be weighed in relation to those made by the trial judge who has had that advantage. While most of the evidence could not have been adduced before, it is not relevant in the sense that it enables the court to make determinations on an accurate assessment of the situation at hand. It merely goes to the weight to be attached to evidence already weighed by a trial judge who heard the witnesses, particularly that of Dr. Pye, whose testimony the appellant seeks to impugn. As opinion evidence by witnesses who have not been qualified as experts, it tends to obfuscate rather than clarify. It is obviously not decisive to the child's best interests that his mother made a better impression on professional people in Ontario than she did on those who were involved in the circumstances leading to his apprehension. Given the difficulties with credibility and the weight of evidence, the requirement that the fresh evidence be uncontroverted takes on a special significance. In my view it is determinative of the issue: the new evidence does not meet the test for admission and should not be admitted. I would dismiss the appeal. Freeman, J.A. Concurred in: Matthews, J.A. Pugsley, J.A.