This case involves an appeal by parents of a child that was made a Crown ward.
In March 2007, the child in this case was referred to the Suspected Child Abuse and Neglect Unit of the Hospital for Sick Children due to concern that she might be suffering from rickets. The Children’s Aid Society became involved in the matter and attended the parents’ home, where they discovered a marijuana grow-up.
Charges were laid against the parents and the child was taken into custody, remaining in the care of the Children’s Aid Society until she was placed in the temporary care of relatives.
In November 2007, the parents abducted the child during a supervised access visit to avoid an upcoming motion for summary judgment initiated by the Children’s Aid Society. The parents were arrested in Montreal and incarcerated.
At the motion for summary judgment, the child was found to be a child in need of protection under s. 37(2) of the Child and Family Services Act. The judge found that there was evidence of “severe neglect” by the parents and placed the child in the care of her relatives, subject to the supervision of the Children’s Aid Society.
LOWER COURT DECISIONS
In 2009, a status review application resulted in an order making the child a ward of the Crown, without access, for adoption. She was subsequently placed back in the care of her relatives. The decision was appealed on the basis that the judge demonstrated a reasonable apprehension of bias, and a new trial was ordered.
The second trial resulted in the same order as the first, naming the child a ward of the Crown, without access for adoption. The parents appealed this decision to Justice Wilson of the Superior Court of Justice on a number of grounds including the trial judge’s bias and various errors in arriving at his decision.
Justice Wilson reviewed the entire history of events, including extensive medical evidence suggesting that the child’s health was at risk and that she had not been taken to a doctor for several years, despite developing noticeable physical abnormalities. In the result, Justice Wilson concluded that the trial judge’s findings were correct.
The parents appealed.
COURT OF APPEAL DECISION
At the outset of its analysis, the Court of Appeal identified two principles as dominating its reasoning:
- The best interests of the child
- The considerable deference owed to a judge in child protection proceedings
With respect to the latter principle, the court indicated that it would only intervene in the event that Justice Wilson had failed to identify a material error in the lower court’s decision.
In relation to the best interests of the child, the court noted that the original judge had made findings of fact that were open to him based on the record, namely that although the parents loved the child, they had consistently demonstrated poor judgement when it came to her safety, as well as her emotional and physical well-being. Moreover, Justice Wilson applied the appropriate standard of review in upholding the trial judge’s findings.
In regard to the parents’ claim that the trial judge demonstrated bias by asking the child whether anyone had asked her about the possibility of consenting to being adopted, the Court of Appeal found that nothing about the question or any comments relating thereto disclosed any bias. As such, Justice Wilson was correct to dismiss this ground of appeal.
In relation to the parents’ allegation that the CAS worker had demonstrated misconduct by misleading the court and providing false evidence, the Court of Appeal found that the trial judge was entitled to find that the CAS worker was a credible witness with relevant concerns. Moreover, Justice Wilson did not err in rejecting this argument on appeal.
Among other grounds of appeal that were dismissed, the Court of Appeal found that there was nothing in the transcript to suggest a mistrial and that the appeal judge correctly applied the principles relevant to the admission of fresh evidence.
Finally, the court dismissed the parents’ argument under the Charter of Rights and Freedoms that they had been deprived of their security of the person and were treated contrary to the principles of fundamental justice, as their disagreement with the trial judge’s interpretation of the evidence simply did give rise to a Charter violation.
In the result, the Court of Appeal held that Justice Wilson’s reasons indicated a thoughtful consideration of the history of the matter, including the trial decision, and that there was no reason to interfere with her conclusion.
The appeal was dismissed accordingly.Post by Andrew Feldstein