S.D. APPELLANT AND: MANAGER OF CHILD, YOUTH v. FAMILY SERVICES, ZONE H RESPONDENT, 2013 NLCA 29

Date: 20130508 Docket: 12/60 Citation: S.D. v. Newfoundland and Labrador (Child Youth and Family Services), 2013 NLCA 29 There is a Publication Ban on the names and any other identifying information of the children referred to herein, as well as the names of their biological parents, relatives and foster families pursuant to

section 52 of the Children and Youth Care and Protection Act , SNL 2010, c. C-122. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: S.D. APPELLANT AND: MANAGER OF CHILD, YOUTH AND FAMILY SERVICES, ZONE H RESPONDENT Coram: Welsh, White and Harrington JJ.A. Court appealed from: Supreme Court of Newfoundland and Labrador, Trial Division (F) 201004F0531 Appeal heard: March 14, 2013 Judgment rendered: May 8, 2013 Reasons for judgment by White J.A. Concurred in by Welsh and Harrington JJ.A. Counsel for the Appellant: Self Represented

Counsel for the Respondent: Brian Furey Q.C. White J.A.: [1] This is an appeal of an order of a judge of the Trial Division (Family) granting continuous custody to the Manager of Child,Youth and Family Services of two boys, K.W.D. and K.M.D. ages 14 and 12 respectively. S.D. and T.D. are the parents of the boys. The appeal was pursued by S.D., father of the boys. [2] The continuous custody hearing took place before the trial judge over a period of seven days.

The Manager, S.D. and T.D.were each represented by separate counsel. [3] While the matter came before this Court on an application to dismiss the appeal on the basis that it was frivolous and had beenunduly delayed, it was, with the consent of the parties, converted to an appeal on the merits. [4] In his initial notice of appeal, S.D. listed as his grounds: “youth [workers] lied; witness unable to appear”.

Just prior to thehearing he filed a letter setting out additional matters which may be summarized: Facts twisted by CYFS to suit desired outcome; status as a seafarer (long periods of absence) held against him; ineffective CYFSprograms; witnesses not available or feared reprisals; requested postponement denied; judge biased in favor of CYFS; three witnesseswere inappropriate or lied; and, CYFS did not want his boys reunited with him so they scammed and lied. [5] During the hearing the Court asked S.D. to indicate how the trial judge had made mistakes.

He reiterated the matters raised inthe letter and emphasized both his disagreement with many of the trial judge’s findings of fact and his disdain for several of the socialworkers who gave evidence. [6] Counsel for the Manager argued that while S.D. has suggested concerns with the trial judge’s decision, he has not providednecessary particulars. He noted that S.D. had the benefit of a full trial which took seven days with nine witnesses called by the Manager,including seven social workers and two psychologists.

T.D., S.D., and T.D.’s partner also gave evidence, and K.W.D. made his viewsknown by written statement. [7] The trial judge considered the applicable law in particular referring to the provisions of the Children and Youth Care andProtection Act, SNL 2010, c. C-12.2.

This legislation, as stated by the trial judge at paragraph 44, “makes it very clear that theoverriding and paramount consideration in determining child protection issues is the best interests of the child”. [8] The trial judge fully reviewed the extensive history of involvement of the parents and children with CYFS and carefullyconsidered the evidence before him before setting out his analysis and conclusions: [47] In determining whether a child is in need of protective intervention, there is a “heavy onus” or “high civil burden” imposed onthe Manager to satisfy the court that allegations necessary to intervene are clearly met.

In Director of Child, Youth and FamilyServices v.

J.(J.) (1993), (NL SC), 113 Nfld. & P.E.I.R. 120 (N.L.U.F.C.), Green J. qualified this approach when hestated at para. 11: In my view the standard of proof at the stage of determining whether a child is in need of protection is that of a balance of probabilities,recognizing that in any given case, for a court to be satisfied that it should intervene, the nature or quality of the evidence ought to becommensurate with the seriousness of the allegations made. [48] The Manager submits that the evidence of the social workers, psychologists, the couple’s counselor, T.D., S.D. and K.W.D.supports a finding that K.W.D. and K.M.D. are in need of protective intervention pursuant to

section 10(a), (

c) and (1). [49] I conclude that the quality of the evidence presented is commensurate with the seriousness of the allegations made and theManager has met the applicable “high civil burden”. I do not accept S.D.’s evidence regarding the incidents of physical abuse. Throughout this testimony he minimized his actions. For example, when asked if he kicked the boys, he responded, “I may have touchedthem in the backside with my toe”. When asked if he kicked the children across the floor, he said, “I pushed them with my foot so theycould slide”.

Inconsistent accounts of the incident at the wharf further impeaches S.D.’s credibility. He told Dr. McLennon that hegrabbed K.W.D. by the legs and dangled him over the side to teach him the dangers of boats and water. He told the Court “[K.W.D.]was beginning to fall and I swooped him up, his head was over the edge but he was in my full embrace”. [50] I am satisfied that K.W.D. and K.M.D. were both physically and emotionally harmed by the behaviors of an authoritarian fatherwho has unrealistic expectations, rules by fear and inflicts hard physical punishment on his children. Dr. D.

McLennon’s opinion is thatthe prognosis for changing S.D.’s approach to parenting is poor because of his continual denial of the issues. [51] The evidence is also clear that T.D. failed to protect her children from the abuse. Additional child protection concerns havearisen as a result of T.D.’s decision to enter into a live-in relationship with D.R. whose two children are the subject of a continuouscustody application. Knowing the risk factors already identified including D.R.’s track record of violence and CYFS’ strongdisapproval, T.D. chose to continue in the relationship.

This brings into question T.D.’s ability to make choices that are in the bestinterests of her children. [52] In the circumstances, I have no hesitation in declaring that K.W.D. and K.M.D. are in need of protective intervention as definedby

section 10(a), (

c) and (1) because they cannot be returned to either parent without risking further physical and emotional harm. [9] In paras. [47] and [49] the trial judge refers to a “heavy onus” and “high civil burden” imposed on the Manager in determiningwhether a child is in need of protective intervention, relying on J.(J.). In F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41,Rothstein J. stated:

[49] ... I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. See also, Performance Factory Inc. v. Atlantic Insurance Company Ltd. , 2013 NLCA 11 . [ 10 ] Accordingly, the statement from J.(J.) used by the trial judge is no longer the law.

Proof on the balance of probabilities is the burden in all civil cases. [ 11 ] In this case, the error of the trial judge in his statement of the law is not material as the evidence supports his decision when the proper standard of proof on the balance of probabilities is applied. [ 12 ] The granting of continuous custody of a child to the Manager of Child, Youth and Family Services is a serious matter. The trial judge had before him evidence of a long history of intervention by the Manager, necessitated by clear evidence that the children were in need of protective intervention.

He carefully considered the options available to him under the Act and made a decision that favoured state intervention over the parents’ wishes, having determined from the extensive evidence before him that neither parent was or would likely in the future be capable of looking after their children. He made no error in concluding that the Manager had presented a plan which was in the best interests of the children. [ 13 ] On appeal, S.D. did not raise any new issue or argument which would sustain an error in fact or law.

In referring to matters not dealt with by the trial judge (judicial bias and lies by witnesses) he provided no factual basis or argument which would justify an intervention by this Court. There is no basis for this Court to interfere with the trial judge’s decision. [ 14 ] I would dismiss the appeal with no order as to costs. ___________________________ C. W. White J.A. I concur: ___________________________ B. G. Welsh J.A. I concur: ___________________________ M. F. Harrington J.A.