Docket: 1869 A.T.H. v. L.H., 2011 SKCA 101

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 101 Date: 20110912 In the Matter of a Hearing under The Child and Family Services Act and in the Matter of D.T.P-L.C. , born June 25, 2001 M.S.S., born July 14, 2004 FSM #44 of 2003 Between: Docket: 1869 A.T.H. and L.H. Appellants - and - Ministry of Social Services Respondent Coram: Klebuc C.J.S., Gerwing and Herauf JJ.A. Counsel: Mary J. Helms for the Appellants Penny-Lynn Tallis for the Respondent Appeal: From: 2009 SKQB 433

Heard: April 11, 2011 Disposition: Appeal Dismissed Written Reasons: September 12, 2011 By: The Honourable Chief Justice Klebuc In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Herauf KLEBUC C. J.S. I. Introduction [ 1 ] In these reasons for judgment, pseudonyms are used to preserve the anonymity of the family involved. The appellants, A.T.H. and L.H., are identified as “Art” and “Laura”, their grandsons as “Michael” and “David”, and the mother of the grandsons as “Melody”. The appellants appeal from the decision of the trial judge wherein he held the children were in need of protection pursuant to s. 11 (

b) of The Child and Family Services Act, S.S. 1989-90, c. C-7.2 (the “ Act ”) and permanently committed to the Minister of Social Services pursuant to s. 37(2) of the Act . These and other relevant sections of the Act are annexed. II. Background [ 2 ] Only a brief outline of the facts is provided herein for the trial judge set out all of the material facts in his reasons for judgment ( 2009 SKQB 433 ). [ 3 ] Melody birthed Michael and David. When Melody could no longer meet the special needs of her sons, she placed them in the care of her parents in October 2007.

The Ministry of Social Services (the "Ministry") did not interfere with the placement of the children with the grandparents and continued to monitor the children’s welfare as it had while they lived with Melody. Melody frequently visited her sons at her parents’ home and was content with the care they were receiving. [ 4 ] All appeared to be in order until November 2007 when the Ministry became aware that in 1987 Art had been convicted of sexual assaulting four young girls and received a custodial sentence of 21 months, followed by a three-year probation order.

Given that the assaults occurred 20 years in the past, the Ministry allowed the children to remain with their grandparents. [ 5 ] In February 2008, Melody advised the Ministry that her father had molested her on two occasions—once when she was eight years of age and later when she was sixteen. She further advised the Ministry that Art had taken pictures of her friends clothed only in panties; her parents engaged in sexual intercourse in locations where she could witness their activity; and Art sometime masturbated in parts of the home where he could be observed.

These disclosures, coupled with Art having been convicted of sexually assaulting the four young girls, resulted in the Ministry apprehending Michael and David on March 18, 2008 and placing them in foster care, where they continue to reside. [ 6 ] The grandparents currently have regular supervised access to their grandsons, as does Melody. The children continue to improve in all respects while in the foster home. III. Decision under Appeal [ 7 ] After reviewing the inappropriate conduct and behaviour of Art identified by Dr. J.

Stephen Wormith in his report, the trial judge provided the following reasons for his decision: [68] I reiterate that there is no doubt Art and Laura love and wish the best for David and Michael. However, one of the best predictors of what will happen is to look to the past. An examination of the familial context of Art and Laura presents real concerns.

[69] Firstly, there is the fact that Melody and her two sisters were permanently apprehended from Art and Laura in 1989 andcommitted to the Minister. Additionally, it is pertinent to observe that Art and Laura have three children and Art has three children fromother partnerships. Of those six, Art and Laura are completely estranged from four. Although they have a relationship with T., it is ofshort duration.

Two of the children allege Art sexually assaulted them. [70] Their relationship with Melody is complicated and, tellingly, when Melody took the stand and was asked where she would like tosee the boys placed, she replied that her preference was with Mary Stevens [the foster parent]. That preference is no doubt because herrelationship with Mary Stevens is less problematic than it is with her parents.

Having said that, it is important to acknowledge thatMelody said that in her opinion the boys would be in "good hands" regardless of whether they were placed with the Stevens or Art andLaura. [71] The Court is presented with two uneasy options. Placement with the Minister results with the boys continuing in foster careindefinitely unless they are adopted. While I accept the Stevens home is a positive and nurturing one, there is no question it [is] not anideal physical plant for nine people. Nonetheless, I also accept that with organization, routine and discipline, it can function at asatisfactory level.

Further, if an order is made under s. 37(2), the boys have the opportunity to be adopted, which is always consideredpreferable to foster care. I cannot lightly preclude that possibility. [72] The other option is to return the children to Art and Laura. While they do love them, there are real questions that arise from theirhistory and the reality of their ongoing estrangement from four of their six children.

On balance, I am compelled to agree with MSS[Ministry of Social Services] that Art and Laura are not able to provide the boys with an acceptable opportunity or grounding from whichthey can meet their uncertain and challenging future. I conclude the best interests of the boys lies in a permanent placement with MSS. [73] Accordingly, I make the following orders: (

i) I find that David and Michael are children in need of protection under s. 11(1)(

b) of The Child and Family Services Act. Further,there will be an order under s. 37(2) placing the boys in the permanent care of the Minister. (ii) I order that for as long as the children are in foster care, that the Ministry make arrangements for the boys to have regular accessto their mother and to Art and Laura. The conditions respecting such access shall be as determined by MSS to be in the best interests ofDavid and Michael or as ordered by the Court. IV. Standard of Appellate Review [8] This Court may vary or set aside the decision under appeal if the trial judge made a material error in law.

See: ss. 63(1), (2) and(6) of the Act. What constitutes an error in law was succinctly articulated by Cameron J.A. in Gallop v.

Mulatz, 2008 SKCA 29, [2008] 5W.W.R. 231, at paras. 32-34: [32] Some of the points give rise to issues of fact, others to issues of law, and still others to issues involving the application of the lawto the facts. [33] To the extent they give rise to issues of fact, in the sense they call into question the findings of fact made at trial, it is now clearthat the power of the Court of Appeal to act on its own view of what the evidence proves, as provided for by s. 14 of The Court ofAppeal Act, 2000, S.S. 2000, c. C-42.1, is fettered in its exercise.

Before exercising this power the Court must first be satisfied that afinding of fact at trial rests on a "palpable and overriding error" by the trial judge, which is to say the Court must be satisfied theimpugned finding is "clearly wrong" or "unreasonable" or "unsupported by the evidence": H.L v. Canada (Attorney General), 2005 SCC25 , [2005] 1 S.C.R 401 (per Fish J. at paras. 55-56).

Only then may the Court set aside an impugned finding of fact and act onits own view of what the evidence proves in relation to the fact in controversy. [34] To the extent the points give rise to issues of law, in the sense they call into question the trial judge's identification of therelevant law, including the judge's selection and

interpretation of the law, the power of the Court to act on its own view of the law is notfettered in this or any other way. If, in the judgment of the Court, the trial judge's identification of the relevant law is not "correct" theCourt is to substitute its own view of the law for that of the trial judge and act accordingly: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

In general, this is also true of the application of the law to the facts as found, for this entails evaluatingthe facts against a legal standard, a matter that calls for a normative judgment and the drawing of conclusions in law based on the facts asfound: St-Jean v. Mercier, 2002 SCC 15 , [2002] 1 S.C.R. 491; ABB Inc. v. Domtar Inc., 2007 SCC 50; Ellis-Don Ltd. v.Ontario (Labour Relations Board), 2001 SCC 4 , [2001] 1 S.C.R. 221; Farm Credit Corp. v. Valley Beef Producers Co-operativeLtd. (2002), 2002 SKCA 100 , 223 Sask.

R. 236 (C.A.). [9] In appeals involving child protection issues the aforementioned standard of review is further limited in the manner outlined in NewBrunswick (Minister of Health and Community of Services) v. C.(G.C.), (SCC), [1988] 1 S.C.R. 1073 at p. 1077: Both the appellant and the intervener on behalf of the children took issue with those two statements as being contrary to the letter andthe spirit of the Act.

They also stressed, and rightly so, that trial judges' decisions, particularly in matters of family law, should not beinterfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of anirrelevant factor or a lack of factual support for the judgment (Adams v. McLeod, (SCC), [1978] 2 S.C.R. 621; Novic v.

Novic, (SCC), [1983] 1 S.C.R. 696, aff'd on reconsideration (SCC), [1983] 1 S.C.R. 700; Racine v.Woods, (SCC), [1983] 2 S.C.R. 173, and more recently Pelech v. Pelech, (SCC), [1987] 1 S.C.R. 801;Richardson v. Richardson, (SCC), [1987] 1 S.C.R. 857, and Caron v. Caron, (SCC), [1987] 1 S.C.R.892). Also see: Van De Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at para. 15 and Saskatchewan (Minister of Social Services) v.B.R.B. (1990), (SK CA), 84 Sask. R. 75. Counsel also relied upon Burgmaier v. Burgmaier (1986), (SK CA), 46 Sask. R. 1 (C.A.).

However, it should be noted Burgmaier dealt with s. 29 of The Family Services Act, R.S.S. 1978, c. F-7(repealed December 1, 1990, S.S. 1990-91, c. 11) that provided a court “may” make one of several orders, including an order committinga child to the Minister, while s. 37(2) of the Act, which replaced The Family Services Act, provides a court “shall make an orderpermanently committing the child to the minister.” Consequently, a trial judge no longer has the discretion previously available under s.29. V. Analysis [10] Two material issues arise from the submissions by the parties: A.

Did the trial judge err in law by finding the children were in need of protection within the meaning of s. 11(

b) of the Act? B. If the trial judge correctly held the children were in need of protection, did he err in law by ordering that they be placed “in thepermanent care of the Minister”? [11] That said, I turn to the first issue. The evidence of Melody, the appellants and the expert witnesses confirmed that the childrenwere developmentally delayed and Melody was unable to meet their special needs. She placed her sons with her parents on the basis thatthey would meet the children’s special needs.

Thus, the question for the trial judge to decide was whether physical or emotional harmwould likely result to the children because the appellants were unable to meet their needs and otherwise were unsuitable caregivers. [12] The appellants argued the finding by the trial judge that physical or emotional harm is likely to occur if the children remained withthe appellants is unreasonable and contrary to the evidence. They maintained the uncontroverted evidence confirmed the children werewell cared for, loved and never hurt or threatened, or otherwise exposed to any factor within the scope of s. 11(b).

In support of theirsubmission they relied upon the reports of Ms. Shoofey-Stabler, the Ministry worker in charge of monitoring the children’s welfare,wherein she confirmed the children’s emotional state had improved during the time they resided with their grandparents.

They alsorelied upon the evidence of Michael’s teacher to the effect that his behaviour had improved while residing with his grandparents. [13] The Ministry, in turn, submitted the children were at risk of physical and emotional harm because Art allegedly had sexuallyassaulted his daughters and other young girls in the past, and persistently engaged in inappropriate conduct of a sexual nature whichcould negatively affect the social behaviour and physical development of the children. [14] The trial judge considered the aforementioned submissions along with the following: the appellants’ children having beenapprehended by the Ministry in the past; four of the appellants’ six children, some of whom were children of prior marriages, hadvirtually no contact with the appellants; the alleged sexual assault of Melody and her sister by Art; the conviction of Art for sexuallyassaulting the four young girls; the conviction of Art for the offence of fraud in 2007; and the inappropriate conduct of a sexual natureexhibited by Art in the presence of children.

Based on these and additional concerns described at paras. 66-67, the trial judge found theappellants "are not able to provide the boys with an acceptable opportunity or grounding from which they can meet their uncertain andchallenging future" (para. 72) and, therefore, the children were at risk of emotional and physical harm. [15] In my view, each material finding of fact is based on a reasonable

interpretation of the evidence to the extent it does not constitute apalpable and overriding error. Moreover, the trial judge was alive to the requirements of s. 11(

b) and s. 36 of the Act, as articulated inSaskatchewan (Minister of Social Services) v. E.K.S., D.W. and C.S. (1996), (SK KB), 146 Sask. R. 46 at paras. 40-42: [40] In child protection proceedings it is a two step process. First, there must be a determination pursuant to s. 36(1) as to whether thechild is in need of protection as that term is defined in s. 11. If it is determined that a child is in need of protection the next step is todetermine the appropriate order among the options contained in s. 37. 1. Are the Children in Need of Protection?

[41] In determining whether a child is in need of protection pursuant to any of the grounds enumerated in s. 11, Baynton J. inSaskatchewan (Minister of Social Services) v. S.E. and E.E., (SK KB), [1992] 5 W.W.R. 289 (Sask. U.F.C.) at p. 296states: ... [T]he issue is not whether the children might be better off, or happier, or obtain a better upbringing in the care of other ‘parents’ thanwith their natural parents. If that were the criterion for a protection order, not many children would remain with their natural parents.

Theissue, however, really is whether the children concerned are receiving a level of parenting care that is below the minimal standard thatwill be tolerated in our society ... [42] Upon the evidence before me and based upon the assault of J.R.S. by C.S., Sr., and the inability of E.K.S. to protect her childrenin the future from such physical assaults, given the way in which she responded to this particular assault, I find that all four children arein need of protection on the basis of s. 11(a)(i), (vi) and 11(

b) of the Act. I also find that as a result of the continued drug use of E.K.S.and C.S., Sr. that the children are in need of protection on the basis of s. 11(

b) of the Act. [16] While the trial judge could have been more direct in addressing the specific reasons the children were in need of protection, hisreasons in their entire context provide a foundation for his conclusion. Thus, the basis for his decision is discernable by the Court and theparties. Simply put, he found the appellants were incapable of providing the level of care the children required and consequently thechildren were likely to suffer emotional harm and collateral physical harm. The inability to parent and the likelihood of harm satisfy thedual requirements of s. 11(b).

His decision is not based on the foster home being able to provide a higher level of care and comfort thanthe appellants, but whether the appellants were able to provide a level of parental care that met the minimum standard society would findacceptable for children having special needs and the likely consequences if the children’s needs were not met. In so doing, he made noreviewable error. B.

If the trial judge correctly held the children were in need of protection, did he err in law by ordering that they be placed “in thepermanent care of the Minister”? [17] Given the applicable standard of review, I see no basis for interfering with the trial judge’s conclusion that a permanent order wasin the best interests of the children, as opposed to other alternatives advanced by the appellants. [18] In conclusion, I would dismiss the appeal without costs. DATED at the City of Regina, in the Province of Saskatchewan, this 12th day of September, A.D. 2011. ___ “Klebuc C.J.S.”____________________ Klebuc C.J.S.

I concur ___ “Gerwing J.A.”____________________ Gerwing J.A. I concur ___ “Herauf J.A.”_____________________

Herauf J.A. Appendix The Child and Family Services Act , S.S. 1989-90, c. C-7.2: 11 A child is in need of protection where: (

a) as a result of action or omission by the child’s parent: (

i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer a serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for a sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code ; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by a duly qualified medical practitioner has not been or is not likely to be provided to the child; (

v) the child’s development is likely to be seriously impaired by failure to remedy a mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; or (

c) the child is less than 12 years of age and: (

i) there are reasonable and probable grounds to believe that: (

A) the child has committed

an act that, if the child were 12 years of age or more, would constitute an offence under the Criminal Code , the Narcotic Control Act (Canada) or

Part III or

Part IV of the Food and Drug Ac t (Canada); and (

B) family services are necessary to prevent a recurrence; and (ii) the child’s parent is unable or unwilling to provide for the child’s needs. . . . 37(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: . . . (

b) be placed in the custody of a person having a sufficient interest in the child; or . . .

(2) If , in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister.

(3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (

a) a child is in need of protection; and (

b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years.

(4) In making an order pursuant to subsection (1), (2) or (3), the court: (

a) shall consider the best interests of the child; (

b) may consider the recommendations of the officer mentioned in subsection 36(2); and . . .

(5) In making an order pursuant to subsection (1) or (3), the court may: (

a) impose any terms and conditions that the court considers appropriate; and (

b) include in the order a provision respecting access to the child.