Nunavut (Child and Family Services) v. J.A. and J.N., 2012 NUCA 2

IN THE NUNAVUT COURT OF APPEAL Citation: Nunavut (Child and Family Services) v. J.A. and J.N., 2012-NUCA-02 Date: 2012-04-11 Docket: 17-12-002-CAC Registry: Iqaluit IN THE MATTER OF the Child and Family Services Act , S.N.W.T., 1997. c.34, as amended by Statutes enacted under

section 76.05 of the Nunavut Act AND IN THE MATTER OF the child R.N., born […] , 2008 Apprehended: May 17, 2011 BETWEEN: THE DIRECTOR OF CHILD AND FAMILY SERVICES Appellant - and - J.A. (mother) J.N. (father) Respondents The Court: The Honourable Justice V.A. Schuler MEMORANDUM OF JUDGMENT

Application for a stay pending appeal Background [ 1 ] On March 6, 2012, I heard an application by the Director of Child and Family Services for Nunavut for a stay pending appeal of an order made by a judge of the Nunavut Court of Justice (the trial judge), returning a child to his parents. That order was made under s. 26.1 of the Child and Family Services Act of Nunavut , S.N.W.T. 1998, c. 34, as amended (the Act). I granted the stay and indicated that reasons would follow.

These are my reasons. [ 2 ] The background is that the child, then age 2 and a half, was apprehended in May 2011, as a result of concerns raised by medical professionals about a series of injuries he had suffered over the course of his short life. Sections 24(1) and 26(1) of the Act provide that after a child is apprehended, there must be an initial hearing within approximately 13 days to determine whether there are reasonable grounds for the apprehension. In this case, that hearing was held before a Justice of the Peace in June 2011. The parents did not appear at that hearing.

The Justice of the Peace granted an order confirming that there were reasonable grounds and setting the matter over for a contested hearing on the merits pursuant to s. 27 of the Act. [ 3 ] The parents of the child then applied to the Nunavut Court of Justice for an order vacating the order made by the Justice of the Peace and directing a new s. 26(1) hearing. [ 4 ] For a number of logistical reasons, the parents' application was not heard until early 2012.

A transcript of that application was not available on this application for a stay, but the trial judge's reasons say that counsel had agreed to conduct a hearing de novo, as it was conceded that the parents had not been properly served with the original application. The Director of Child and Family Services testified and was cross-examined. Affidavits sworn by the parents denying that they had ever intentionally harmed the child were also before the Court.

Counsel on this application advised that the mother of the child was present by telephone at the de novo hearing; however, cross-examination on her affidavit was not requested. [ 5 ] At the conclusion of the hearing, the trial judge held that there was sufficient evidence before the Justice of the Peace to justify the apprehension of the child. However, he went on to hold that at the hearing before him, the medical evidence relied on by the Director was hearsay and he was satisfied based on the parents' affidavits that the injuries suffered by the child were accidental.

He concluded that the Director had not satisfied the test for a s. 26(1) initial hearing. [ 6 ] Having made that finding, the trial judge ordered that the child be returned to the parents, but on conditions that they not leave the child unattended, not use physical discipline on the child and not consume or be under the influence of alcohol while the child is in their care.

Subsequently, upon counsel for all parties submitting that s. 26 does not allow the imposition of conditions when a child is returned to the parents, the trial judge set the conditions aside. [ 7 ] The Director filed a notice of appeal on February 29, 2012, alleging various errors on the part of the trial judge, including that he erred in concluding, on all the evidence, that the child's injuries were caused by accidents and that he erred in his application of the test to be applied on the hearing.

Test for a stay [ 8 ] The test for a stay pending appeal in civil cases involves three conditions, which the applicant must satisfy: (

a) there is a serious triable issue, in other words, the appeal is not frivolous, (

b) there will be irreparable harm to the applicant if a stay is not granted, and (

c) the balance of convenience favours a stay.

[9] In proceedings affecting the welfare of children, the concept of irreparable harm focuses on the risk of irreparable harm to thechild: D.D. v. Ministry of Community Services et al., 2003 NSCA 146. [10] The applicant for a stay need not establish that the child will suffer irreparable harm if the stay is not granted, it is enough that onthe evidence there is a reasonably perceivable risk that the child may suffer harm if the stay is not granted: Child and Family Services ofWestern Manitoba v. K.B., 2006 MBCA 48. [11] In this case, the Court must also be mindful of s. 2(

a) of the Act, which states that the paramount objective of the Act is topromote the best interests, protection and well-being of children. This objective supports the principle that the factors of irreparable harmand balance of convenience must be viewed through the lens of the child's best interests in cases involving the custody of children. Is there a serious triable issue? [12] The main ground of appeal is that the trial judge, after correctly stating the test on a s. 26(1) hearing, then turned the s. 26(1)hearing into a s. 27 full hearing on the merits.

The Director says that the trial judge weighed the medical evidence against the parents'affidavit evidence and came to the conclusion that the child's injuries were accidental, which is an issue that should have been reservedfor the s. 27 hearing. [13] In response, the parents take the position that the s. 26(1) hearing in this case was an unusual one. The Director decided to testifyrather than rely on affidavit evidence. The hearing had been delayed well beyond what is usual for an initial hearing and the Court hadmore time available than would normally be the case.

Therefore, the Court was in a position to conduct a more in-depth hearing and didnot err in doing so. [14] A transcript of the hearing before the trial judge may reveal more about the parameters of the agreement between counsel thatthe hearing was to be a hearing de novo. However, it appears from the trial judge's decision that they had not agreed on the scope of thehearing. At paragraphs [71], [72] and [73] of his decision, the trial judge refers to having overruled objections by the Director's counselto the scope of the cross-examination of the Director by the mother's counsel.

The Director's counsel argued that the Court should notallow an initial hearing to turn into a hearing under s. 27. The trial judge did not say that the hearing was in the nature of a s. 27 hearing,but did say that he would consider all the new information in analyzing the arguments. [15] Although he permitted the wider scope of cross-examination just referred to, the trial judge examined the test for an initialhearing and concluded that it is lower than the test at a full hearing on the merits under s. 27. He referred to A.J. (Re), [1996] B.C.J.

No.2786 (Prov.Ct.), where the Court was dealing with a presentation hearing, which seems to be the equivalent of an initial hearing underthe Nunavut legislation, of which it said: ...In my view, the presentation hearing is designed to consider the facts upon which the apprehension was made. If there is a disputeabout the facts, then they are resolved in favour of the Director.

If there is a dispute about the conclusion to be drawn from facts thataren't in dispute, then that may very well result in the child being returned to a parent. [16] The trial judge also referred to an excerpt from the case, British Columbia (Director of Family and Child Services) v. W.H.K.,2003 BCPC 307 , [2003] B.C.J.

No. 1982, to the effect that if there is admissible evidence at a presentation hearing which, ifbelieved by the protection hearing judge, could lead to a finding that the child is in need of protection, the child should remain in the careof the Director, pending a protection hearing. [17] The trial judge adopted the tests referred to above and indicated that he would apply them. He reviewed the affidavit evidence ofthe parents in which they denied deliberately inflicting any injuries and said that two of the injuries occurred when the child was not intheir care. They said the child is fragile and accident-prone.

The trial judge also considered the fact that an older child was returned tothem by the Director as evidence that they were not abusive or neglectful.

[ 18 ] The trial judge concluded that the only evidence that suggested the parents might have physically abused the child came from a comment from Dr. Reid describing the child's forearm fracture as a nightstick or defensive fracture from guarding his face from a blow. However, since Dr.

Reid's assertion was contained in a report from another doctor, the trial judge concluded that it was hearsay and that it was contradicted by the mother's affidavit evidence wherein she described the injury as having occurred accidentally when the child was climbing a window ledge and fell. [ 19 ] The trial judge concluded that the contradiction between Dr.

Reid's evidence and the mother's evidence did not amount to a conflict in the facts because it was a conflict between a hearsay opinion and the mother's sworn evidence and as a result there was no factual dispute that should be resolved in favour of the Director. [ 20 ] The trial judge then found that the parents did not deliberately harm the child and that the injuries to the child were caused by accidents. [ 21 ] It is arguable that the initial hearing contemplated by s. 26(1) is not the place to resolve any conflicts between a medical opinion as to the cause of an injury and a parent's statement about how the injury was caused.

Because of the short time frame within which the initial hearing must be held, it is arguable that the legislation does not contemplate that medical evidence be present in anything other than documentary or hearsay form and that the actual presence of medical professionals is not required. The issue for the initial hearing is whether there are reasonable grounds to believe that the child needs protection and whether the person who apprehended the child had, at the time of apprehension, reasonable grounds to believe the child was at risk if the child were returned to the person with lawful custody: s. 26.1(1).

If the Court determines that those two conditions apply, it may make an interim order that the child remain in the care of the Director. [ 22 ] The trial judge's decision lists information the Director had, in addition to Dr. Reid's opinion, including a conversation the Director had with Dr.

Ferguson, who was of the view that there was no plausible explanation for the child's injuries except child abuse and a social worker's report expressing concerns about child abuse and neglect based on observations of injuries, bruising and malnutrition. [ 23 ] In light of the above, it is not clear to me why the trial judge described Dr. Reid's evidence as the only evidence that suggests the parents may have physically abused the child. That, however, would be an issue to be addressed at a full hearing.

Similarly, the fact that on two of the occasions when the child suffered injury he was not in the care of his parents is something that should be weighed against all the other evidence. Although the Director could not say for certain how the child's injuries were caused, there was conflicting evidence on that issue, i.e., the medical opinions as against the parents' assertions. [ 24 ] Counsel for the parents relied on comments in Children's Aid Society of Colchester County v.

T.M., 2006 NSCA 61 , where it was said that a judge considering a stay application must give considerable deference to the trial judge's findings, and because of the need for stability and finality in child custody, generally there must be circumstances of a special and persuasive nature, usually connected to the risk of harm to the child, in order to persuade the court to grant a stay. [ 25 ] Although that deference might be appropriate in a case where a trial judge had heard all the evidence in a full hearing, I am not persuaded that it is appropriate where, as here, the nature of the hearing is in question.

The trial judge did not hear all the medical evidence upon which the Director had acted in ordering the apprehension of the child. Nor were the parents' assertions and explanations tested. Arguably, this was because counsel were not on the same page as to the nature of the hearing and therefore did not present all the evidence.

Or it may have been because the trial judge did not properly apply the test for an initial hearing. [ 26 ] In this context it must be remembered that there is no dispute that the child has suffered significant injuries (broken bones, broken ribs) several times over the course of his young life. Whether those injuries were deliberately inflicted or the result of inadequate care or supervision is an issue that should be resolved after a full hearing at which all the evidence can be presented.

Clearly the trial judge had some concerns about the parents' care of the child as reflected in the conditions he imposed. [ 27 ] In all the circumstances, I am satisfied that there is a serious issue as to whether the hearing in this case and the trial judges' assessment of the evidence went beyond what is contemplated under s. 26(1) of the Act. The Director has therefore fulfilled the first condition for a stay.

Irreparable harm [28] The Director brought an application to adduce fresh evidence on this stay application. While I did not feel that the fresh evidencewas necessary for purposes of deciding whether there is a triable issue, I will consider it on the issues of irreparable harm and balance ofconvenience. [29] The fresh evidence consists of (

i) the affidavit of a nurse who reviewed the child's health records and has had direct contact withhim, and (ii) the affidavit of a child protection worker. [30] The test for admission of fresh evidence on appeal is stated in Palmer v the Queen, (SCC), [1980] 1 SCR 759: theevidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (ii) the evidence must be relevant;(iii) the evidence must be credible in that it is reasonably capable of belief; and (iv) the evidence must be such that if believed it could,together with the other evidence at trial, be expected to have affected the result. [31] On an appeal dealing with the welfare of a child, the judge has a discretion to hear further evidence relevant to the best interestsof the child: Children’s Aid Society of the Regional Municipality of Waterloo v L.B, (Ont SC). [32] I would apply the same considerations on a stay application.

Since the best interests of the child are the governing consideration,evidence relevant to those interests can be admitted depending on the circumstances. In this case, since the main issue is the scope of thehearing that took place and whether it went beyond what is appropriate for an initial hearing, a broad reading of the principles in Palmeris appropriate. [33] The nurse’s affidavit outlines her observations of some of the child’s injuries and attaches a report by Dr. Ferguson. The parentsobjected to this evidence, arguing that it was available at the time of the hearing.

The Director concedes that although available, Dr.Ferguson’s report was not submitted to the Court. Nor was the nurse called as a witness. Instead, the Director testified about the medicalinformation he had received, including the evidence I have just referred to, as forming the basis for his decision to have the childapprehended. [34] The evidence is clearly relevant to the child’s welfare. Although it was not adduced at trial in the form it has been put in front ofme, it was referred to in the Director’s evidence at the hearing, which was aimed at explaining the grounds upon which the child wasapprehended.

Since the Director’s position is that there was no need to adduce all the medical evidence at the hearing, I am satisfied thatthe due diligence factor should not be applied. The evidence otherwise meets the requirements in Palmer and should be admitted. [35] The parents also objected to the nurse’s evidence on the basis that she has not been qualified as an expert to make some of theobservations and express opinions. However, her opinion as to the amount of force required to break a child’s leg really goes only to thereason why she consulted a doctor about the explanation given to her for the child’s injury.

The rest of her evidence is that in her 18years as an emergency room nurse she has not seen a child with this child’s leg injury, said to be caused by a 3 year old slamming acupboard door on him, except in the context of significant vehicle accidents. In my view this is simply an observation, not an opinion.

Iwould admit it as well. [36] The evidence referred to above, along with the evidence about the injuries and the medical treatments and opinions recited in thetrial judge’s decision, satisfies me that there is a perceivable risk of harm to this child if he is returned to his parents, whether throughabuse or neglect or lack of supervision.

Although the mother’s affidavit referred to in the trial judge’s decision indicates that sheunderstands that she has to provide more supervision of the child, and although as her counsel pointed out, if there is another incident theDirector will no doubt apprehend again, in my view the risk of yet another injury to the child is not a risk the Court should take. [37] Another aspect of the fresh evidence in both the nurse’s and the child protection worker’s affidavits is the description of thechild’s negative reaction when he saw the parents via television screen in a visit arranged after the hearing.

The evidence is that the childappeared to be frightened, that he cried and left the room at one point, that he did not engage with the parents. I would admit thisevidence as it is post-hearing evidence and is relevant, but I would not give it very much weight. It could be that the child’s reaction isthe result of poor treatment at the hands of the parents, but it could also be that he was confused and upset by seeing them on a television

screen or because he had not seen them for several months at that point. [ 38 ] The final aspect of the fresh evidence is the child protection worker’s evidence that she has made inquiries and is advised by the police that since the hearing the child’s father has been found to be intoxicated on a couple of occasions and has been charged with assaulting a police officer. There is also reference to him awaiting trial on a charge of assault against a mother and son, although that predates the hearing.

The mother was also charged prior to the hearing with bringing alcohol into their community, which is a dry one. [ 39 ] It is not clear to me whether any of this evidence was before the trial judge. Some evidence of the parents’ use of alcohol must have been since he imposed a condition that they not be under the influence of alcohol or consume it during any time that the child is in their care. The trial judge also referred to the fact that in 2010, the Court had forwarded to the Director a transcript of the father’s sentencing for family assault involving weapons, drugs and drinking.

The Court at that time expressed a concern for the welfare of the children. [ 40 ] I conclude that the evidence relating to the father being intoxicated and assaulting a police officer does meet the requirements of Palmer and should be admitted. It indicates that for the father, abuse of alcohol and violence remains an issue. For the mother, alcohol abuse may be an issue as well. In my view, the evidence adds to the perceivable risk of harm to the child if he is returned to the parents.

Although the mother’s counsel argued that, since this behaviour occurred when the child was not with the family it is not relevant, the evidence is that there is another child who does still reside with the parents, so it is relevant to their behaviour when they have the responsibility of caring for a child. [ 41 ] I am therefore satisfied that the Director has shown that there is a risk of irreparable harm if a stay is not granted. Balance of convenience [ 42 ] For the same reasons I have set out above, I am satisfied that the balance of convenience favours a stay.

The risk of physical and with it emotional harm to the child should he be returned to the parents outweighs the risk of harm to the parent-child relationship from their separation. [ 43 ] For these reasons, I granted the stay sought by the Director. I also directed counsel to use reasonable efforts to expedite the appeal. The admission of the fresh evidence for purposes of my decision does not, of course, mean that it will be admitted on the appeal itself. That will be for the panel hearing the appeal to decide. Application heard on March 6, 2012 Memorandum of Judgment filed at Iqaluit, Nunavut on April 11, 2012.

V.A. Schuler J.A. Counsel for the Director of Child and Family Services: Sheila M. MacPherson

Counsel for the mother, J.A.: Jack Squire Counsel for the father, J.N.: Andrea Smart