J.A.S. APPELLANT AND: MANAGER OF CHILD, YOUTH v. FAMILY SERVICES, ZONE A, 2013 NLCA 13

Date: 201302 11 Docket: 12/47 Citation: J.A.S. v. Newfoundland and Labrador(Child, Youth and Family Services), 2013 NLCA 13 PUBLICATION BAN: THERE IS A PUBLICATION BAN ON THE NAMES OF ALL CHILDREN REFERRED TO HEREIN AS WELL AS THE NAMES OF ANY PERSON WHO COULD LEAD TO THE IDENTIFICATION OF THE SAID CHILDREN. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: J.A.S. APPELLANT AND: MANAGER OF CHILD, YOUTH AND FAMILY SERVICES, ZONE A RESPONDENT Coram: Welsh, White and Hoegg JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 201002U0232 Appeal Heard: January 21, 2013 Judgment Rendered: February 11, 2013 Reasons for Judgment by Hoegg J.A. Concurred in by Welsh and White, JJ.A. Counsel for Appellant: Robert Buckingham Counsel for the Respondent: Brian Furey Q.C.

Hoegg J.A.: Introduction [ 1 ] On June 8, 2012 a judge of the Supreme Court of Newfoundland and Labrador, Trial Division (Family) ordered that M.S. (“M.”) be placed in the continuous custody of the Manager of Child, Youth and Family Services, Zone A (the “Manager”). J.A.S. (“J.S.”), the father of M., appeals that decision. [ 2 ] On July 16, 2012, J.S., representing himself, filed his notice of appeal. However, in the following months he took no steps to perfect it or bring it on for hearing. On October 15, 2012, the Manager applied to have J.S.’s appeal struck or dismissed.

The Manager’s attempts to serve her application on J.S. through the regular channels were futile, so substituted service was ordered by this Court on November 20, 2012. The application provided notice to J.S. that the Court would proceed with the matter on December 18, 2012. [ 3 ] On December 18, 2012, counsel appeared for J.S., and sought to have the Manager’s application set over so as to enable J.S. to bring a fresh evidence application and to have his appeal determined on that basis.

Counsel for the Manager agreed with this procedure, and advised the Court that he would request the transcript of the continuous custody hearing on an expedited basis on the understanding that he would be able to request that the associated expenses could be reimbursed to the Manager by way of a costs order at the conclusion of the hearing. [ 4 ] J.S. filed his fresh evidence application on January 15, 2013. The proffered fresh evidence shows that J.S. was bound by court order to stay in Ontario for a four-month period prior to the continuous custody hearing.

J.S. argues that if the trial judge had had this evidence before her, she would not have found that he abandoned his son, and a different result of the Manager’s application for continuous custody would have obtained. [ 5 ] With the consent of the parties and the Court, the hearing of the Manager’s application was transformed into the hearing of the appeal on the basis of J.S.’s fresh evidence application, and the matter proceeded on January 21, 2013. Case History [ 6 ] M. was born in Newfoundland on February 25, 2010.

When he was just a few weeks old, he was removed from his parents’ care and placed in the care of relatives. After a short period of time, the Manager applied for and was granted temporary custody of him. The Manager subsequently applied for a second temporary custody order, and in May 2011 it was ordered that M. remain in the Manager’s temporary custody. The judge also ordered M.’s parents, J.S. and R.H., to comply with the following conditions: 1.

THAT R.H. will continue to attend mental health and addiction counselling sessions, to be assessed for post-partum depression, and to help her deal with issues such as depression, anger, and addiction issues. 2. THAT J.S. and R.H. will continue to accept the involvement of Public Health in assessing and following up with M.S. 3. THAT J.S. and R.H. will provide information that will allow Child, Youth and Family Services to confirm that they have attended and completed anger management, and if this service has not been completed, that they will do so. 4.

THAT J.S. will continue with counselling to address issues of domestic violence, anger management, and potential addiction issues. 5. THAT J.S. and R.H. will undergo urine drug screening through Kelligrews Medical Clinic and hair follicle drug screening through East Coast Mobile Medical. 6. THAT J.S. and R.H. will accept the services of a Family Support Worker from Daybreak into the home to work on parenting skills and positive interaction with M.S. J.S. and R.H. will also become involved in other parenting supports and groups as they become available. 7.

THAT J.S. and R.H. will take a primary role in parenting during supervised visitation. 8. THAT J.S. and R.H. will attend all supervised medical appointments for M.S. where possible. 9. THAT J.S. and R.H. will work cooperatively with Child, Youth and Family Services, including being honest with the Department and its representatives. [ 7 ] M. remained in his foster home with supervised access to his parents.

Access visits were exercised irregularly, and it appears that the last time M. saw his parents before they left Newfoundland was on August 10, 2011, at which time the Manager was advised of the parents’ intention to move to Toronto. Shortly thereafter, R.H. relocated to Toronto, and J.S. followed her there in early September 2011. [ 8 ] On August 25, 2011, the Manager applied for continuous custody of M.

On March 22, 2012, after three days of hearing, the trial judge determined that M. was a child in need of protective intervention pursuant to the provisions of the Children and Youth Care and Protection Act , SNL 2010, c. C-12.2 (the “Act”). She adjourned the matter so that placement options for M. with persons other than

his parents could be canvassed and evaluated. Sometime after March 22, M.’s parents separated. At a status hearing on May 3, 2012,the trial judge was advised of this new information along with a request from J.S. that she consider returning M. to J.S. alone. By writtendecision dated June 8, 2012, the trial judge ordered that M. be placed in the continuous custody of the Manager. [9] The trial judge’s reasons for finding M. in need of protective intervention and granting continuous custody of him to theManager are readily discernable from her two written decisions concerning this matter.

Her first decision, (Newfoundland and Labrador(Manager, Child, Youth and Family Services) v. J.S., 2012 NLTD(F) 12, 321 Nfld. & P.E.I.R. 107 found M. to be a child in need ofprotection. It addresses the evidence in detail, and explains why she found that J.S. and R.H. were not capable of parenting M. Ofparticular note to J.S.’s appeal (R.H. did not appeal the trial judge’s decision), is the trial judge’s finding that J.S. was not committed toparenting M., and that his access visits were irregular.

She also found that J.S. did not obey many of the orders imposed on him by thejudge who heard the Manager’s second temporary custody application. Specifically, he had not availed of counselling to addressdomestic violence, anger management and potential addiction issues as directed, he had not provided regular urine screens as requiredand he declined the support services of Daybreak. At paragraphs 7 to 9 of her second decision (Newfoundland and Labrador (Child,Youth and Family Services) v.

J.S., 2012 NLTD(F) 17, 326 Nfld. & P.E.I.R. 344), which granted continuous custody of M. to theManager, the trial judge summarized why she would not return M. to the custody of J.S. alone: [7] I repeat some of the conclusions I reached in my earlier Decision. Firstly, in the two years following the child’s removal (when hewas less than two months old), the family did not progress beyond supervised access visits. There was never a time when supervisionwas either reduced or eliminated, and the Manager never made a plan for the transitional return of the baby.

The child’s mother’saddiction was the root cause of the failure of reunification; domestic violence and police involvement were related, but secondary causes. [8] Secondly, in August/September 2011, both parents left the Province and remained in Ontario for approximately seven months withno physical contact to their son.

While J.S. had legitimate reason to travel to Toronto in September 2011, and to stay there until hisdaughters were settled and his criminal charges were addressed, neither of these events would have justified the complete absence ofcontact between J.S. and his son for a full seven months. [9] Having concluded that his parents’ joint decision to leave Newfoundland and Labrador and have no contact with their sonrepresented rejection and/or deprivation of affection under s. 10(3)(

a) and (

c) of the Act, I conclude now that, notwithstanding the recentseparation of his parents, placement of the child with his father alone would be inconsistent with his best interests. The Fresh Evidence Application [10] The fresh evidence J.S. seeks to introduce consists of Ontario Court of Justice records respecting criminal charges against him. J.S. argues that this documentation shows that he was legally prevented from leaving the province of Ontario between October 11, 2011and February 9, 2012.

He maintains that if the trial judge had had this evidence before her at the continuous custody hearing, she wouldhave accepted his evidence that he was not able to be in Newfoundland with his son for good reason, and therefore did not abandon himby relocating to Ontario. Without the finding that he abandoned M., J.S. says the trial judge would not have granted continuous custodyof M. to the Manager. [11] The admission of fresh evidence on an appeal related to child protection is governed by the principles established in CatholicChildren’s Aid Society of Metropolitan Toronto v. M.(C.), (SCC), [1994] 2 S.C.R. 165.

Catholic Children’s Aid adaptedthe criteria for the reception of fresh evidence on appeal which had been established in Palmer v. The Queen, (SCC),[1980] 1 S.C.R. 759, so that information on the current circumstances of affected children and parties could be provided to a courtcharged with making a decision in a child’s best interests. [12] The Catholic Children’s Aid test for admissibility of fresh evidence on appeals involving the interests of children was succinctlysummarized by the Nova Scotia Court of Appeal in S.G. v.

Children’s Aid Society of Cape Breton (1995), (NS CA),14 R.F.L. (4th) 141 at p. 150: For this evidence to be admissible it must meet the criteria determined by L'Heureux-Dubé, J. in M.(C.). 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. [13] In J.F. v.

Director of Child, Youth and Family Services, Health and Community Services Board – St. John’s Region, 2006NLCA 35, 253 Nfld. & P.E.I.R. 281, Wells C.J.N.L. considered the child-centred approach taken in Catholic Children’s Aid along withthe Palmer criteria in determining that a psychological report omitted at trial would not have had any bearing on the conclusions reachedby the trial judge, and was therefore inadmissible on appeal. See also Children’s Aid Society of Toronto v. V.(L.), 2012 ONCA 890,where the child-focused approach to receiving fresh evidence as set out in Catholic Children’s Aid was followed.

Analysis [14] The trial judge’s continuous custody decision included a finding that M.’s parents had rejected him and deprived him ofaffection when they relocated to Ontario. J.S. argues that the finding that he rejected and deprived his son was significant to the trialjudge’s decision that it would not be in M.’s best interests to place him with his father alone. However, that is not the question. Rather,

the question is whether the proffered fresh evidence would have made a difference to the trial judge’s finding of rejection and deprivation ( J.F .). Also in issue is whether the proffered fresh evidence meets the test for admissibility set out in Catholic Children’s Aid , so as to enable this Court to interfere with the trial judge’s continuous custody decision.

Would the proffered fresh evidence have made a difference to the trial judge’s finding that J.S. rejected and deprived M.? [ 15 ] In her decision that M. was a child in need of protection, the trial judge made findings respecting each of the four reasons J.S. and R.H. advanced for why they left their young son in care in Newfoundland and relocated to Toronto.

She found: 1) that J.S.’s explanation that he had to go to Toronto to assist his three daughters in finding accommodation was a reasonable one “at least on a temporary basis”; 2) that there was no support for J.S.’s testimony that he thought M. could be transferred to Children’s Aid in Ontario and that J.S. took no steps whatsoever to explore such a transfer; 3) that despite J.S.’s contention that more parenting and rehabilitation support services were available in Toronto, he did not avail of any parenting or other support there; and 4) that J.S.’s testimony respecting his inability to leave Ontario due to the assault charge was unpersuasive as justification for relocating because it was confusing and did not have an “air of reality”.

It is this last reason to which the proposed fresh evidence is directed. [ 16 ] J.S.’s proposed fresh evidence consists of Informations, Recognizances and other court records from the Ontario Court of Justice. One Information states that J.S. was charged with assaulting R.H on May 2010. Another Information states that J.S. was charged with theft, assault and escaping lawful custody in relation to an incident which happened in Toronto on October 25, 2011, and the third Information references a charge that J.S. breached a recognizance in Toronto on November 29, 2011.

A Recognizance dated October 11, 2011 includes the condition that J.S. remain in the province of Ontario as of October 11, 2011. Another Recognizance dated October 25, 2011 includes conditions that J.S. reside at a Toronto address under curfew, and a third Recognizance dated December 5, 2011 includes the condition that J.S. reside at a Toronto address. The other court records document various court appearances related to the charges.

The records seem to indicate that all of the criminal matters were concluded on February 9, 2012. [ 17 ] The trial judge’s confusion and doubt about J.S.’s evidence that he could not leave Ontario because of the assault charge is likely because J.S. was not entirely forthright in his testimony about the Ontario court matters. He left the impression with the court that the charge of assault on R.H. was the only criminal charge he was facing, and that because there had been a warrant issued for his arrest in relation to that charge, he had to return to Ontario and stay there.

The proffered fresh evidence does not show there was a warrant for his arrest, although that may well have been so. However, it does tell a story of several charges and related recognizances binding J.S. to stay in Ontario between October 11th and February 9th, 2012, about which J.S. did not testify. [ 18 ] The trial judge found, and the evidence supports, that while J.S. was in Toronto, and for a period of time before he left Newfoundland, he did not contact or communicate with the Manager or M.’s caregiver in Newfoundland respecting M.’s well-being. The proffered fresh evidence does not refute this finding.

Neither does it affect the trial judge’s findings that J.S. failed to follow up on his notion that M. could possibly be transferred to Ontario, and that he failed to make efforts to address the parenting issues identified at the second temporary custody hearing.

The proffered fresh evidence also does not touch on J.S.’s failure to exercise access to M. in the month prior to his leaving for Ontario, or explain why he waited 3 weeks after his charges were dealt with before returning to Newfoundland. [ 19 ] Significant to the trial judge’s continuous custody decision were her findings, supported by the evidence, that J.S. did not demonstrate commitment to his son, and that he did not progress beyond supervised access during the first 18 months of M.’s life.

It is clear from the record that J.S. remained entwined with M.’s mother in a cycle of violence and addictions, essentially forsaking his son in the process. [ 20 ] In

summary, the proposed fresh evidence relates to only one of several reasons the trial judge gave for finding that J.S. “rejected and deprived” M. when he relocated to Toronto. In addition, this finding was only one of several reasons she gave for finding M. a child in need of protection and why she granted his continuous custody to the Manager. Therefore, it cannot be said that court records indicating that J.S. was bound to stay in Ontario from October 11, 2011 to February 9, 2012 would have made any difference to her decision ( J.F. ).

Moreover, the nature of the proffered fresh evidence may well have given the trial judge additional pause as to the suitability of J.S. to parent M. alone. Is the proffered fresh evidence admissible on appeal? [ 21 ] The proffered fresh evidence, being court records, is credible and incontrovertible. However, it was readily available at minimal cost before the Manager’s continuous custody hearing took place in March 2012, and it could have been adduced at that time.

Regardless, it relates to only one aspect of one of several reasons the trial judge gave for her continuous custody decision, making its overall relevance minor. Also, the proposed evidence does not provide any accurate, up-to-date or even different information concerning either J.S.’s or M.’s current circumstances and does not bridge the gap between the previous hearing and the appeal. Lastly, it hardly relates to M.’s best interests, let alone being decisive of them.

It simply does not meet the criteria for admissibility set out in Catholic Children’s Aid . [ 22 ] At the appeal hearing, J.S. requested that his appeal be allowed and that this matter “go back to the Manager to have a plan of integration”. J.S. lives in Ontario. He works as a trucker. His counsel informed the Court that he continues to have contact with R.H., although R.H. now has a different partner.

J.S. did not tender any up-to-date and accurate evidence of his own current circumstances which could affect M.’s interests, nor has he suggested how he could be reunited or even become involved with the care of his son. If this Court were to grant the relief J.S. requests, M. would revert to a state of uncertainty when there is not even a prospect, let alone a plan, for reunification with his father. Such an outcome would not be in the best interests of M. Disposition

[ 23 ] The proffered fresh evidence would not have made any difference to the trial judge’s decision, and it is not admissible on appeal. J.S. did not argue any other ground of appeal. Neither did he allege error on the part of the trial judge, and none is apparent. The trial judge’s decisions show that she carefully reviewed the evidence and properly applied the law to it in consideration of M.’s best interests. Accordingly, J.S.’s appeal must be dismissed. The order granting the Manager continuous custody of M. stands.

Costs [ 24 ] The Manager requests that her disbursement expenses of $2,441.93 for the preparation of the hearing transcript be reimbursed to her by way of a costs order. As referenced above, the Manager arranged for the transcription of the evidence of the continuous custody hearing so that this appeal could be heard expeditiously. [ 25 ] Under the provisions of Rule 57, the appellant is generally obligated to file the transcript of the proceeding under appeal.

Sometimes, however, an appellant is not able or fails to arrange for the transcript in a timely manner, and delay in the hearing of his or her appeal ensues. [ 26 ] The timely prosecution of appeals is always important, but is particularly important in appeals that directly affect the interests of children. This Court has recognized that adverse consequences can result from delay in the prosecution of appeals involving children, as demonstrated by its Practice Note CAPN No. 2012-02 dated February 6, 2012.

This Practice Note followed the February 3, 2012 amendment to Rule 57.11, which specifically addresses the issue of timeliness in the prosecution of appeals involving questions of “custody of, access to, protection of, responsibility for or support of a child or children” (NLR 10/12, s.1). [ 27 ] Concerns about delay in appeals involving the interests of children have on occasion caused this Court to request or order the Manager, despite being the respondent to an appeal, to provide the necessary transcript to this Court so that such appeals can be heard expeditiously.

When the Manager accommodates the appeal process in this manner, her disbursement expenses relating to the preparation of the transcript are properly addressed at the conclusion of the appeal. And, where the Manager is successful in resisting the appeal, and in consideration of all other factors relevant to costs, it is generally appropriate to reimburse this expense to the Manager by way of a costs order. While this practice will not be invariable, it will be followed in appropriate cases in the future. [ 28 ] In this case, the Manager is successful on appeal.

She shall therefore have her disbursement costs of $2,441.93 for the preparation of the transcript as requested. L. R. Hoegg J.A. I concur: B. G. Welsh J.A. I concur: C. W. White J.A.