D.T. v. J.T. APPELLANTS, 2016 NLCA 27

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : D.T. v. Newfoundland and Labrador (Child, Youth and Family Services) , 2016 NLCA 27 Date : June 7, 2016 Docket : 201601H0047 BETWEEN: D.T. and J.T. APPELLANTS AND: MANAGER OF CHILD, YOUTH AND FAMILY SERVICES RESPONDENT Coram: Barry J.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 200902U0051 Appeal Heard: June 7, 2016 Judgment Rendered: June 7, 2016 (Orally) Memorandum of Disposition Filed: June 13, 2016 Counsel for Appellants: Self-represented Counsel for Respondent: Jacqueline Pelletier MEMORANDUM OF DISPOSITION Barry, J.A.: [ 1 ] The Appellants say they appeal the decision of Justice Cillian Sheahan, dated September 17, 2015, regarding their autistic son, J., who has been removed from their care by Child, Youth and Family Services.

The Appellants claim Child, Youth and Family Services has violated their charter rights by approaching a medical issue from a protection perspective. They seek to have their 14 year old son returned to their care. [ 2 ] Several problems arise in their case. First, the detailed case report filed in this matter does not indicate any decision by Justice Sheahan on September 17, 2015, but on that date an application by Child, Youth and Family Services for a protective intervention hearing was filed. A very condensed version of certain milestone events will be helpful at this point.

[ 3 ] The T. family has had involvement with CYFS dating from March 23, 2001. Initial concerns related to appropriate supervision and discipline, as well as the need for respite services. The family responded appropriately and managed until 2008, when their file was reopened due to a request for supportive services for J. He was reported to have exhibited serious behaviours, such as physical aggression and violence towards his parents, sister and other service providers. He then required constant supervision due to his impulsive and unpredictable behaviours.

These continued to a greater or lesser degree until the present and at times overwhelmed the parents. [ 4 ] On January 16, 2009, a warrant to remove J. from the care of his parents was granted. He was returned to his home on March 13, 2009, when behavioural aid and respite services were implemented. A consent order of March 17, 2009 declared J. a child in need of protective intervention but had him remain in his parents’ custody, under the supervision of CYFS for six months. [ 5 ] J. remained at home for several years after this.

In 2012, he began displaying significant behaviours again, including verbal and physical aggression towards his parents and sister. In March 2012, a firm of professional service providers began working in the family home for 20 hours each week. At times, its staff had to intervene, when J. hit his sister. She eventually left the home to ensure her safety. The family coped with the aid of service providers during 2013 and 2014.

But in 2015, after a number of aggressive incidents, CYFS concluded a different arrangement was needed. [ 6 ] The mother, J.T., initially expressed agreement with a plan for an independent living arrangement for J., under a protective care agreement. D.T., however, pushed to have the family remain united. After September 17, 2015, J.T. also no longer agreed with the proposed plan. CYFS filed an application for a protective intervention hearing and a date was set. [ 7 ] The hearing did not proceed.

On October 30, 2015, the T.s both signed a protective care agreement with CYFS for a period of six months, placing J. in care. On April 28, 2016, D.T. filed the “notice of appeal” noted above. On April 29, 2016, the T.s served an application and notice to parent, and CYFS served another application for protective intervention on the same date. On May 17, 2016, Justice Fitzpatrick issued a consent order that J. is a child in need of protective intervention and placed J. in the temporary custody of CYFS for six months. [ 8 ] From the above

summary, it should be apparent that the document filed as a notice of appeal is defective in that it does not correctly identify the decision sought to be appealed nor properly set out the grounds for an appeal. Because the T.s are now self- represented, however, (although they each had separate counsel advising at the time of the May 17 consent order) I concluded form should not trump substance, decided to treat the “notice of appeal” as a request for directions and proceeded to hear the parties. [ 9 ] A second problem arises from certain inconsistencies in the submissions of the T.s.

They both agree that J.’s condition has seen significant improvement since a new doctor began advising them in 2015, yet they now appear not to accept the advice of this doctor, who says to expect things to get worse before they get better in terms of J.’s behaviour. [ 10 ] Another inconsistency in the submissions of the T.s has to do with the involvement of the professional service provider. Since this provider’s arrival on the scene, J.’s condition has improved.

Yet, the T.s appear adamant that this provider’s services should be terminated, without presenting an alternative plan to ensure J.’s situation is not worsened. [ 11 ] A further difficulty with the parents’ submission is that they now object to J.’s protective intervention order (despite having consented to its issuance), while acknowledging that CYFS has correctly pointed out that many of the resources now available to J. and his family would not be available without the protective intervention umbrella because of limits on present funding through the Department of Health. [ 12 ] The parents’ current position is that they would prefer to keep their family together and would like to see both J. and his sister, O., reside in their family home.

They are in the process of renovating their basement and would like to develop a basement apartment for J. to live in with 24-hour support and supervision, while they and O. reside in the upstairs part of the home. [ 13 ] CYFS sees continuing risks to the children if they were to reside together, but CYFS is open to exploring the family’s plan, while stressing that J. continues to require behaviour management and development in coping skills and anger management.

CYFS objects to J. and O. residing in the same residence until it is determined to be safe to do so. [ 14 ] D.T. expressed frustration over his inability to be heard on what he calls “cover-ups” and specific concerns he has regarding the competency and reliability of service providers. In approximately five months, the existing protective intervention order will run its course. If J. has not been returned to the family home by then, the normal approach contemplated by the legislation would see a further hearing, where the T.s will have the opportunity to address all relevant issues.

They had the opportunity to do this in April at Family Court when dates had been set for a hearing. With the advice of counsel, they decided to forego the hearing and consent to a protective intervention order. D.T. says he did this because he “had a gun to his head,” meaning, I assume, that he was left with no other choice. That may be so, but there are no easy solutions to the difficult situation in which fate has placed the T. family. [ 15 ] I acknowledge that D.T. and J.T. are trying to do what they see necessary to provide for J.’s best interests.

I have been provided with no basis for intervening at this point, but I grant leave to the T.s to apply to bring this matter on for further hearing, should circumstances change and they conclude this is necessary. They should be aware, however, that this Court must act within the jurisdiction given it by statute. At this stage, it appears their further applications should be in Family Court.

While I have attempted to promote access to justice by choosing substance over form, any further applications to this Court should be supported by the appropriate affidavits. [ 16 ] This matter is adjourned sine die . ______________________________ L. Barry J.A.