B.W. v. J.W., 2019 NLSC 166

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : B.W. v. CYS , 2019 NLSC 166 Date : September 20, 2019 Docket : 201501G6524 Between: B.W. and J.W. AppelLANTS And: MANAGER, Child and Youth Services , ZONE E FIRST Respondent AND: W.W. SECOND RESPONDENT Restriction on Publication: 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 parents, relatives and foster families pursuant to

section 55 of the Children, Youth and Families Act . Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: March 8 and April 4, 2019

Summary: The Appellants appealed a decision of a Provincial Court Judge who placed one child in the custody of her biological father and another child in the continuous custody of the Manager of Child, Youth and Family Services. The Court, sitting on appeal, dismissed all grounds of appeal with the exception of the ground dealing with access to the child that had been placed in the custody of her biological father. The issue of an appropriate access order was referred back to the Provincial Court for a new hearing.

Appearances: Sarah J. Clarke Appearing on behalf of the Appellants Cynthia D. Janes Appearing on behalf of the First Respondent Tamara L. Drover Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Housen v. Nikolaisen, 2002 SCC 33; Newfoundland and Labrador (Manager of Child, Youth and FamilyServices) v. R. (T.), 2014 NLCA 19; Marshall v. Marshall, 2008 NLUFC 13; Director of Child, Youth, and Family Services v. Thorne, (NL PC); P. (J.) v.

British Columbia (Director of Child, Family and Community Services), 2013 BCSC 515; R. v.Manning (2010), 90 W.C.B. (2d) 180, 2010 CarswellNfld 283 (N.L.P.C.); R. v. Novak (1995), (BC CA), 27 W.C.B.(2d) 295, 59 B.C.A.C. 152 (C.A.); Carroll v. Carroll (2001), 110 A.C.W.S. (3d) 471, 2001 CarswellOnt 4402 (C.J.); R. v. Medford, 2018ONSC 4866; Sordi v. Sordi, 2010 ONSC 2344; R. v. Powley (ON CA), 2001, 141 O.A.C. 121, 196 D.L.R. (4th) 221(C.A.); Farden v. Farden (1998), (SK KB), 173 Sask. R. 161, 84 A.C.W.S. (3d) 1124 (Q.B.); Hayes v. Hayes(1990), (NL SC), 82 Nfld. & P.E.I.R. 299, 20 A.C.W.S. (3d) 1104 (Nfld.

C.A.); Rowe v. Coles, 2012 NLTD(F) 24;Furlong v. Furlong, 2009 NLUFC 14; Carnell v. Follett, 2010 NLTD(F) 25; C. (W.L.) v. T. (P.), 2014 NLTD(F) 4; Miller v. McMaster,2005 NSSC 259 STATUTES CONSIDERED: Children and Youth Care and Protection Act, S.N.L. 2010, c. C-12.2; Children’s Law Act, R.S.N.L.1990, c. C-13; Children, Youth and Families Act, S.N.L. 2018, c. C-12.3; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D,

Part IV, Supreme Court Family Rules TEXTS CONSIDERED: Paul Chill, Burden of Proof Begone: The Pernicious Effect of Emergency Removal in Child ProtectiveProceedings,

(2004) University of Connecticut School of Law Articles and Working Papers INDEX Page INTRODUCTION............................................................................................. 4 ISSUES............................................................................................................. 6 LAW AND ANALYSIS.................................................................................... 7 Standard of Review...................................................................................... 7 Issue 1: Recusal........................................................................................... 9 Issue 2: Aggression/Non-cooperation with CYFS..................................... 22

Issue 3: Ongoing drug and/or alcohol abuse ............................................. 30 Issue 4: Completion of drug testing........................................................... 33 Issue 5: Participation in counselling.......................................................... 34 Issue 6: Services of behavioural management specialist............................ 36 Issue 7: Risk of violence............................................................................ 38 Issue 8: Custody and Access – J.R............................................................ 40 CONCLUSION............................................................................................... 53 REASONS FOR JUDGMENT McGrath, J. : INTRODUCTION [ 1 ] The Appellants have appealed a decision of a Provincial Court Judge given on November 6, 2015 (the “Decision”) arising out of child protection proceedings involving two children, J.A. and J.R.

The Appellant, B.W., is the biological mother of both J.A. and J.R., while J.W. is the biological father of J.A. The Second Respondent, W.W., is the biological father of J.R. [ 2 ] The Manager of Child, Youth and Family Services, Zone E (the “Manager”) [1] first filed an application with the Provincial Court in Harbour Grace seeking a temporary custody order in respect of both children on October 13, 2011. Prior to this application, the children had been living primarily with B.W. and J.W.

This application was filed after J.W. had an altercation with a neighbor on the night of October 12, 2011, resulting in the police being called. J.W. also contacted CYFS looking for help that night. [ 3 ] When officials of CYFS arrived at the home, B.W. was too intoxicated to care for J.R. In the meantime, J.W. had left with J.A. The Manager subsequently located J.A. and J.W. J.A., who was then only 15 months old, was alone in the parked van of J.W. , while J.W. was in a neighboring home.

The Manager took J.A. and J.R. to a foster home where they remained for a period of time given the Manager’s serious concerns with respect to substance abuse by all three parents. [ 4 ] The parents consented to a first temporary custody order on February 1, 2012 and a second temporary custody order on November 30, 2012. On February 26, 2013, the Manager filed an application for continuous custody of J.A. as well as an application for an extraordinary third temporary custody order for J.R.

The Manager indicated that its ultimate plan was to see J.R. placed in the care of W.W. but felt that W.W. was not yet ready to take care of J.R. [ 5 ] A protective intervention hearing on both applications commenced in November 2013, with the last evidence presented in May 2015. The lengthy proceeding took place over a non-consecutive period of 36 days. [ 6 ] Throughout the course of the proceeding, both children had access with B.W. and J.W., albeit supervised.

J.R. also had supervised and, later, unsupervised access with W.W. until the trial judge placed J.R. in the interim custody of her biological father pursuant to an oral decision given on September 8, 2014. [ 7 ] At the conclusion of the proceeding, the trial judge gave her oral Decision in which she made an order placing J.A. (then five years of age) in the continuous custody of the Manager and placing J.R. (then twelve years of age) in the sole custody of W.W. with supervised access to the Appellants if it was in J.R.’s best interest.

[ 8 ] B.W. and J.W. filed a notice of appeal of the Decision on December 3, 2015. While they were represented at trial, they did not have counsel when they filed their appeal. [ 9 ] As no further steps were taken to perfect the appeal for a period of twelve months, this Court provided notification that the appeal would be deemed abandoned. B.W. and J.W. then asked for a case management meeting to have the appeal set down for a hearing.

After several case management meetings were held with B.W. and J.W. indicating they would be seeking legal advice, this Court made an order that counsel be appointed for the Appellants.

Appeal dates were set as well as filing dates for the appeal book, transcript and memorandums of fact and law. [ 10 ] Due to the large volume of trial transcripts and W.W. not having been named or served with the appeal, the hearing dates had to be postponed twice with the appeal ultimately proceeding on March 8 and April 4, 2019. [ 11 ] This Court has been advised that, since the Decision of the trial judge, J.A. has been placed out of Province while J.R. has been living with her father, without much meaningful contact with the Appellants.

The Appellants submitted that, if the trial judge erred in her Decision, the appropriate order for this Court to make is an order setting aside the Decision that J.A. be placed in the continuous custody of the Manager. Due to the lapse of time and J.R.’s current age (16 years), the Appellants are not seeking an order for physical custody but contend that the parenting order should have given them some decision-making authority and specified access. In the alternative, they seek a new trial with respect to parenting of J.R.

Issues [ 12 ] The Appellants allege the trial judge made the following errors: 1) That the trial judge erred in law in failing to recuse herself after having prior involvement in a criminal trial involving J.W. ; 2) That the trial judge erred in law in determining that aggression towards and non-cooperation with CYFS provided a basis for placing J.A. in the continuous custody of the Manager; 3) That the trial judge erred in fact in finding there were ongoing concerns with respect to the Appellants’ drug and/or alcohol use; 4) That the trial judge erred in fact in finding that B.W. had refused to complete drug testing during court proceedings; 5) That the trial judge erred in fact in finding that the Appellants had limited participation in mental health and addictions counselling; 6) That the trial judge erred in fact in finding that the Appellants refused to avail of the services of a behavioral management specialist; 7) That the trial judge erred in fact in finding that a risk of exposure to family violence existed if the children remained in the custody of the Appellants; and 8) That the trial judge erred in fact and law in finding that it was in J.R.’s best interests that W.W. be granted sole custody of her and the Appellants be entitled to supervised access only. law and analysis Standard of Review [ 13 ] The leading Supreme Court of Canada case of Housen v.

Nikolaisen , 2002 SCC 33 sets out the appellate standard of review in detail. Questions of Law [ 14 ] For questions of law, the standard of review is that of correctness. Questions of Fact [ 15 ] The standard of review for findings of fact is that of palpable and overriding error. At paragraphs 10 and 11 of Housen , the court noted that trial judges should be given a high degree of deference on findings of fact, with appellate courts assuming trial decisions are just. Inferences of Fact [ 16 ] The standard of review for inferences of fact is also that of “palpable and overriding error”.

At paragraph 23 of Housen , the court noted that it is not for an appellate court to second-guess the weight to be applied to evidence. If there is no palpable and overriding error with respect to the underlying facts relied upon to draw an inference, it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. Questions of Mixed Fact and Law

[17] The standard of review for mixed fact and law is that of palpable and overriding error unless it is clear that the trial judge madesome inextricable error in principle with respect to the characterization of the legal standard or its’ application, in which case the errormay amount to an error in law. Application to Child Protection Proceedings [18] The application of these standards of appellate review in fact-based and discretionary child protection proceedings wasdiscussed in Newfoundland and Labrador (Manager of Child, Youth and Family Services) v.

R. (T.), 2014 NLCA 19, where Mercer J.A.stated at paragraph 18: 18 Whether procedural fairness was observed is an issue of law and accordingly the applicable standard of review on appeal is that ofcorrectness. Appellate deference to a trial decision respecting child protection applies to "fact-based and discretionary family lawdecisions unless manifest error is found" (see Grimes v. Grimes, 2012 NLCA 68, 329 Nfld. & P.E.I.R. 29 (N.L.

C.A.), at para. 24).Where the standard of correctness does not apply, while the role of the appellate court is not to retry the case in the sense of making its own findings of fact and substituting its opinion for that of the trial judge, neverthelessit is part of the function of appellate review to review the record generally to satisfy itself that there is evidentiary support for theconclusion which the trial judge reached. B. (J.), Re (1998), (NL CA), 166 Nfld. & P.E.I.R. 1 (Nfld. C.A.) at para. 141, see also para. 43. [19] Furthermore, I am mindful that

section 9 of the Children and Youth Care and Protection Act, S.N.L. 2010, c. C-12.2, that was inforce at the time of the Decision, stipulated that the paramount consideration in child protection proceedings, including appeals, is thebest interests of the child or youth. This principle remains in

section 9 of the Children, Youth and Families Act. This principle alsoapplies in custody and access proceedings under the Children’s Law Act, R.S.N.L. 1990, c. C-13. [20] Thus, while the starting principle is that the decision of a trial judge warrants substantial deference, I may find a reviewableerror and intervene if the judge erred in legal principle or made a palpable and overriding error in a finding of fact, inference of fact or aquestion of mixed fact and law. On this appeal, I am to give deference to the trial judge’s fact-based and discretionary decisions unless amanifest error is found.

I must conduct a review of the record to satisfy myself that the conclusion reached is supported by the evidence. 1) Did the trial judge err in law in failing to recuse herself after having prior involvement in a criminal trial involving J.W.? [21] On March 7, 2014, newly retained counsel for J.W. made an application asking that the trial judge recuse herself from the childprotection matter as she had presided over a criminal trial on January 17, 2014 in which J.W. was the accused.

In giving her decision inthat criminal trial, the trial judge made negative credibility findings against J.W., resulting in J.W. being convicted of uttering threats. [22] The trial judge heard the application for recusal and gave the following reasons for refusing to recuse herself: Would the reasonable person assessing the facts of this application reasonably apprehend that I would be biased while exercising myjudicial function in the course of this trial? It is my ruling that he or she would not.

The presumption of impartiality is not displayed[sic] simply because I made a negative credibility finding against [J.W.] in an unrelated criminal trial. In fact, as a part of the evidenceon the trial before me, counsel for CYFS and [W.W.] would be entitled to advise me of [J.W.]’s criminal record and the details of anyprior convictions, irrespective of whether I myself have been the judge to convict him.

And as I stated to counsel during submissions, judges are often expected to disregard information that might have been placed beforethem when making judicial decisions, and at that time, I used the example of a judge acting as the trier of fact and disallowing theadmission of certain evidence on a voir dire. The judge then continues on to hear the trial without allowing the disallowed informationto impact his or her decision.

For these reasons, I will not recuse myself from this trial. [Names of parties changed to initials] [23] The Appellants submit that the trial judge erred in law in respect of her recusal decision. They refer to the decision of LeBlanc,J. in the case of Marshall v. Marshall, 2008 NLUFC 13, in which he heard an application for recusal in a custody and access matter. Inearlier proceedings, LeBlanc, J. had granted full custody of the parties’ child to the respondent. He concluded that it was necessary forjudicial continuity purposes that he be seized of future proceedings.

He also held that a review could be requested by the respondentbased on his concern over the applicant’s potential response to the decision. The applicant challenged the continued involvement ofLeBlanc, J. on various grounds, including on the basis that he made prior adverse findings of fact and credibility against the applicant.

[24] At paragraphs 12 to 13 of his decision, LeBlanc J. outlined the test for a reasonable apprehension of bias: 12 The test for a reasonable apprehension of bias that has been judicially accepted in Canada is as set out by de Grandpre, J.J. inCommittee for Justice & Liberty v.

Canada (National Energy Board) (1976), (SCC), [1978] 1 S.C.R. 369 (S.C.C.) whereat pages 394-5 he stated as follows: .... the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the questionand obtaining thereon the required information .... [T]hat test is "what would an informed person, viewing the matter realistically andpractically — and having thought the matter through — conclude.

Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." I can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonablesuspicion of bias', or 'real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree withthe Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulousconscious". 13 As held in R. v.

S. (R.D.), the test for apprehension of bias requires a twofold objective element: 1. the person considering the alleged bias must be reasonable; and 2. the apprehension of bias itself must also be reasonable considering the full circumstances of the case. Further, the reasonable person must be aware of all the relevant circumstances including the presumption of impartiality related tojudicial decision-making.

Cogent evidence showing that a judge's conduct gives rise to a reasonable apprehension of bias must bepresented in order to display [sic] this presumption. [25] On the subject matter of judicial impartiality, LeBlanc J. stated as follows: 9 Speaking from a legal and ethical point of view, judges must be, and always should appear to be, impartial with regard to theirdecision-making and ultimate judgment. Impartiality goes to the heart of the integrity of our court system.

Therefore, it is imperative thatany allegation of bias or reasonable apprehension of bias be carefully considered based upon the specific facts and circumstances of thecase. Having said this, it is also clear that the test for proof of bias or apprehended bias has been described as requiring a high thresholdwith there being a need to produce cogent evidence. This is required due primarily to the presumption of impartiality related to judicialdecision-makers. A real probability of bias must be demonstrated. 10 In one of the leading cases, R. v.

S. (R.D.) (1997), (SCC), 118 C.C.C. (3d) 353 (S.C.C.), Cory, J. definedimpartiality as a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence andsubmissions. Conversely, he defined bias as being "a state of mind that is in some way predisposed to particular results or that is closedwith regard to a particular issue". 11 This definition of bias is further explained by the comments in Middelkamp v. Fraser Valley Real Estate Board (1993), (BC CA), 83 B.C.L.R. (2d) 257 (B.C.

C.A.) where it was held that: ... bias does not mean that the judge is less than unfailingly polite or less than unfailingly considerate. Bias means a partiality to one sideof the cause or the other. It does not mean an opinion as to the case founded on the evidence, nor does it mean a partiality of preferenceor even a displayed special respect for one counsel or another, nor does it mean an obvious lack of respect for another counsel, if thatcounsel displays in the judge's mind a lack of professionalism.

[26] While the Appellants did not refer me to a case in which a party applied for a judge’s recusal after being convicted by that samejudge on an unrelated matter, they referred me to Director of Child, Youth, and Family Services v. Thorne, (NL PC). In that case, the applicant parent in a child protection proceeding sought a judge’s recusal on the basis that the judge had presided over abail hearing and sentencing submissions involving the applicant on two occasions in the previous year.

In refusing recusal, Porter, P.C.J.emphasized that he had not been called upon to assess the credibility of the applicant in a trial setting, noting there are differentthresholds and considerations between bail hearings and trials. [27] The Appellants submit the trial judge should have given consideration to the fact that her prior negative assessment of theAccused’s credibility was in a trial setting. It is not apparent from her decision that she did.

The Appellants say this put J.W. at adisadvantage as he was giving his own testimony in a child protection proceeding to a judge who had chosen to discount his credibility ina criminal trial just a couple of months prior.

The Appellants submit it is therefore probable that an informed observer, viewing thematter realistically and practically, and having thought the matter through, would conclude that an apprehension of bias existed,especially given that the criminal conviction occurred while the child protection proceeding was ongoing. [28] On the other hand, the Respondents disagree that the Appellants have demonstrated a reasonable apprehension of bias.

TheManager acknowledges that a reasonable apprehension of bias may arise from the judge’s involvement with a prior or other proceedings,due to a judge’s relationship with parties or counsel (not an issue here), or due to the judge’s conduct prior to or during the trial. However, the Manager says that an allegation a judgment may be tainted by bias, or by a reasonable apprehension of bias, is mostserious because it calls into question the impartiality of the court.

It also raises doubt in the public about the court’s ability to renderjustice according to law. [29] In light of the strong presumption a judge is impartial, the threshold for proving a reasonable apprehension of bias is high andmust be evaluated on the specific facts and circumstances of the case.

The Manager submits that the fact that a judge has been involvedwith prior proceedings, even when adverse findings on credibility or determination of guilt or innocence have been made, is not by itselfdeterminative of the issue. [30] The high threshold for a finding of reasonable apprehension of bias was applied in the context of child protection proceedings inP. (J.) v. British Columbia (Director of Child, Family and Community Services), 2013 BCSC 515. The court drew upon the principlesoutlined in the case law and stated: 9 Accordingly, the threshold to establish partiality is high.

An allegation of bias without any factual support will not result in thedisqualification of a judge. The grounds for apprehension must be substantial: Committee for Justice & Liberty v. Canada (NationalEnergy Board) (1976), (SCC), [1978] 1 S.C.R. 369 (S.C.C.), at 395. Mere suspicion of partiality is not enough: R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 (S.C.C.) at para. 112. "Something more" is required: R. v. Novak (1995), (BC CA), 59 B.C.A.C. 152 (B.C. C.A.) at para. 7.

Overall, it must be demonstrated with cogent evidence that the informed,reasonable and right-minded person would conclude that it is more likely than not that the judge would not fairly try the case: R. v.Melnichuk, 2004 BCCA 332 (B.C. C.A.) at paras. 8-9. 10 Furthermore, as the Federal Court of Appeal recently explained in Collins v. R., 2011 FCA 171 (F.C.A.) at para. 11, that eventhough a judge has rendered a prior judgment that was unfavourable to a party, it cannot and should not necessarily be concluded that thejudge will not act impartially in subsequent proceedings.

Rather, a reasonable apprehension of bias "must be shown to exist either in thejudgment itself, in the comportment of the judge or by some other means": Collins at para. 11. See also: Sandhu at para. 22. [31] The Manager says the proposition that grounds must be substantial is strengthened in family law proceedings, and morespecifically in child protection and custody matters, where the paramount consideration is the best interests of the child. The Managerspecifically notes there is no rule prohibiting a judge in family law proceedings from presiding over subsequent proceedings involvingthe same family.

In fact, due to the evolving nature of these proceedings and the need to ensure prompt access to justice, having thesame judge preside over a matter has generally been found to be beneficial. [32] Further, with respect to adverse findings in another trial, the Manager notes that the former Children and Youth Care andProtection Act specifically allowed the court to admit and rely upon prior findings in a civil or criminal matter. The same provision iscontained in

section 51 of the Children, Youth and Families Act. Section 48(2)(

d) of the former Act reads as follows: 48

(2) In a proceeding under this Act, a judge may admit and act upon … (

d) a report the judge considers relevant, including a transcript, exhibit or finding in an earlier civil or criminal proceeding; … [33] As a result, the Manager says the trial judge was within her proper jurisdiction to consider the previous conviction. In fact, sheaccepted the criminal records of all three parents in the course of the child protection proceeding. [34] The Manager also refers to case law from this jurisdiction where a judge heard a matter despite having presided over priorproceedings involving the same party. In the Provincial Court decision in R. v.

Manning (2010), 90 W.C.B. (2d) 180, 2010 CarswellNfld283 (NL PC), an accused was charged with assault with a weapon and breaching probation. The judge had presided over prior trials inwhich the accused was charged with offences. The judge had also denied the accused judicial interim release on the same charges over

which the judge was assigned as trial judge. The accused brought an application for the judge to recuse himself. After applying the testfor reasonable apprehension of bias and finding none, the judge stated, “It is well settled that a judge’s prior involvement in a matter orwith a litigant is not, on its own, a basis for recusal”. [35] While the judge refused to recuse himself on the grounds that he presided over prior proceedings involving the accused, he didrecuse himself because, during the judicial interim release hearing, the accused had volunteered information about the events leading upto his arrest.

While the judge could have continued to hear the matter and simply ignored the accused’s statements during the bailhearing, he chose instead to recuse himself for fear that the accused might testify at trial and contradict the statements that he had madeat the bail hearing. [36] What is also interesting about this case is that the judge who decided the case was the same judge who decided Thorne, reliedupon by the Appellants.

While the Appellants cite Thorne in support of their position that the trial judge should have considered that herprior judicial involvement with J.W. was in a trial context, this same judge, Porter, P.C.J., specifically noted in Manning that: A judge need not disqualify himself from hearing a trial where he has earlier denied the accused judicial interim release: R. v. Nieman(1981), (YK SC), 65 C.C.C. (2d) 187 (Y.T. S.C.), or even after earlier hearing trials and convicting the sameaccused: R. v. Werner (2005), 2005 NWTCA 5 , 205 C.C.C. (3d) 556 (N.W.T.

C.A.). (emphasis added) [37] As such, I do not interpret the comments in Thorne differentiating bail and sentencing hearings from trials as standing for thegeneral proposition that a prior criminal conviction by the same judge provides a basis for recusal. [38] With respect to the effect of having made prior adverse credibility findings, the Respondents refer to the British Columbia Courtof Appeal case of R. v. Novak (1995), (BC CA), 27 W.C.B. (2d) 295, 59 B.C.A.C. 152 (C.A.).

In finding there wasno reasonable apprehension of bias, the Court of Appeal stated at paragraph 7: The fact that a trial judge has ruled adversely in a previous case on the credibility of either a defence witness or the accused does notnecessarily result in a reasonable apprehension of bias.

Something more is required showing a predisposition by the adjudicator withrespect to the accused's credibility, such as to amount to pre-judgment of the result of the second hearing. [39] The Appellants conceded in their submissions that the threshold is high, with past rulings not necessarily requiring recusal, butsay there may still be circumstances where a prior ruling could result in a reasonable apprehension of bias. [40] The Appellants refer to Carroll v.

Carroll (2001), 110 A.C.W.S. (3d) 471, 2001 CarswellOnt 4402 (C.J.), in which JudgeBishop reiterated the presumption that a judge will carry out his or her oath of office to render justice impartially. It would take cogentevidence to rebut that presumption. At paragraph 29, he went on to say: 29 In order to recuse on credibility grounds alone, there must be evidence that the judge has actually gone out of his or her way byword or deed to show

an act of dislike or hostility towards the party to such an extent that an objective observer would have to say thatthere was a reasonable apprehension of bias. … [41] The Appellants submit that such cogent evidence exists, referring to several excerpts from the transcript.

They say thatcomments of the trial judge could be viewed as displaying she had a predisposition to decide against J.W. (i.e. that her mind was closedor strongly resistant to persuasion to the contrary view) when viewed in conjunction with the prior adverse credibility finding. [42] With respect to the first of these excerpts, the Appellants refer to the following exchange in which the judge queried whetherJ.W.’s recusal application was genuine: THE COURT: So what you’re saying is your client didn’t tell you? MS. DAY: Well, yes.

I mean, we spoke of his criminal matters, the criminal matters that were before the Court, My Lord, but there – THE COURT: Your Honour. MS. DAY: Sorry, Your Honour. – but there would’ve been no cause for Mr. – for my client to discuss other matters with me with regardto his family file, and he didn’t. THE COURT: Even though the same judge was gonna be hearing both. MS. DAY: But, Your Honour, I don’t think you’re understanding. I did not realize – I did not – I was not told, was not informed by myclient. I hadn’t spoke to him, actually – at that point, Your Honour, I hadn’t spoke to him for many months.

His matter – I believe thelast time his matter was called before this Court was July of 2013, and then he had a criminal trial scheduled for January. So, YourHonour, you can appreciate that I’m – I wasn’t in – I certainly wasn’t in constant contact with my client throughout the interveningperiod. I spoke to him again in January in preparation for the trial. We did not speak of his family matters that were ongoing, as weknow now were ongoing for quite some time for many days’ trial, Your Honour. We did not speak about his family matters.

We spokeabout the matter that I was dealing with, his criminal – the criminal matters, Your Honour.

THE COURT: So you don’t see it as curious at all that this man had another proceeding before me and didn’t feel the need to raise that with you? [ 43 ] Counsel for W.W. submits that, far from being an indication of bias with regard to J.W. ’s character, the trial judge’s questions and concerns about when J.W. had knowledge of a potential issue and the timing of the application were directly relevant to whether an application for recusal should be granted. [ 44 ] J.W. had appeared before the trial judge for six full days of evidence on the child protection proceeding in November and December of 2013, prior to commencing his criminal trial.

Further, his counsel on the criminal matter was aware of the ongoing family proceeding prior to the conclusion of the criminal trial. Any concern surrounding the trial judge’s role could have and should have been raised prior to commencing the criminal trial or, at least, by the time that trial concluded. [ 45 ] In addition to the comments regarding the failure to raise recusal on a timely basis, the Appellants submit that the trial judge placed undue emphasis on delay, thereby overshadowing considerations of what was just and fair in all the circumstances.

While acknowledging that the best interests of the children are paramount in this matter, the Appellants submit that the trial judge’s focus on delay and difficulties in rescheduling fifteen consecutive trial days was an error. They say the trial judge ought to have considered that the trial was still in its infancy when the application was made, two new counsel had just been appointed, and fifteen additional days of trial would still be required even if the trial judge refused to recuse herself.

Further, the delay in bringing the application was explained as there had been a change in counsel, with counsel on the criminal matter not being aware of the child protection proceeding until she replaced the former child protection counsel. [ 46 ] However, as pointed out by the Manager, while the trial judge’s comments reveal she was clearly concerned about further delay, she did allow a postponement of the proceeding to permit J.W. to provide full argument on the issue of recusal.

The trial judge also took great pains to adjust the court’s docket to ensure the parties had sufficient time to present relevant evidence and make submissions. No appeal of the denial of the recusal application was undertaken and the child protection proceeding continued on for another year and a half. [ 47 ] The last excerpt from the transcript referred to in support of the Appellants’ submissions is a comment made by the trial judge several months after she declined the recusal application. When proceedings commenced on the morning of July 17, 2014, the Appellants were not present in Court.

The following exchange took place regarding their absence: MS. SENIOR: (Recording not turned on)…driver, and apparently they sent a car down for them. So she’s trying to find out now whether they actually got in the cab. It’s really unusual, but I mean they’re usually here when I get here. I’ve never known them not to be here on time. UNIDENTIFIED FEMALE: So I don’t know what’s going on.

THE COURT: So [W.W.] managed to get himself here though, so I’ll give him ten points for that. [ 48 ] It was later revealed that the taxi company responsible for retrieving the Appellants had not been to their house as scheduled that morning. The Appellants state that this was the first time they had ever been late for trial, and their absence was no fault of their own. As a result, the Appellants say the trial judge should not have reacted as she did - that these comments demonstrate

an act of dislike or hostility towards them, and a favoring of W.W., giving rise to a reasonable apprehension of bias. [ 49 ] However, the Manager notes that a more fulsome review of the transcript reveals the trial judge herself agreed it was strange that the Appellants were not present as they generally did attend.

When the trial judge was advised by CYFS later that morning that the reason the Appellants arrived late was due to an issue with a taxi, she was appreciative of the explanation. [ 50 ] In relation to the above comments, the Manager submits that something more than a one-off comment is required to show a reasonable apprehension of bias. This single comment by the trial judge, even considering the earlier exchange on the recusal application, falls far short of the high threshold required by the reasonable apprehension of bias test.

This is not a situation where a judge made “intemperate statements” or excessively intervened in questioning of a witness. [ 51 ] As noted by Molloy, J. in R. v. Medford , 2018 ONSC 4866 , at paragraph 12 : Trial judges should behave in a judicious manner and should avoid expressions of annoyance, impatience, and sarcasm.

That said, isolated expressions of impatience or annoyance do not constitute bias, nor do they give rise to a reasonable apprehension of bias. [ 52 ] LeBlanc, J. in Marshall , also noted that bias is not demonstrated merely because a judge is “less than unfailingly polite or less than unfailingly considerate”. [ 53 ] Overall, on the issue of bias or reasonable apprehension of bias, the Manager has helpfully synthesized the principles applicable to my determination. I reproduce them below: 1. There is a strong presumption that a judge will act without bias; 2.

A prior judgment that is unfavorable to a party is not enough to prove that the same judge will not act impartially in subsequent proceedings;

3. Mere suspicion of partiality is not enough; there must be “something more”; 4. The party alleging reasonable apprehension of bias must present strong evidence demonstrating that a reasonable and right-minded person would conclude on a balance of probabilities that a judge would not fairly try a case; and 5.

A reasonable apprehension of bias must be shown in the judgment itself, in the conduct of the judge, or by some other means. [ 54 ] Applying these principles to the record and the submissions of the parties, I find that a reasonable and right-minded person informed of all the circumstances would not conclude on a balance of probabilities that the trial judge would not act impartially. I make this finding for the following reasons: 1. I start from the strong assumption that a judge will act without bias; 2.

The fact that the trial judge found unfavorably against J.W. in a prior criminal proceeding is not sufficient to prove that the trial judge would not act impartially in subsequent proceedings. While it is true that the trial judge made a negative finding of J.W. ’s credibility in a prior proceeding just two months before the continuation of the child protection proceeding, judges are routinely asked to make credibility findings for or against witnesses on various issues.

The fact that the trial judge did not find J.W. ’s evidence credible on an unrelated matter does not give rise to a presumption that she would not believe him or would find against him in an unrelated matter. It would be extremely difficult, if not impossible, for trial courts in small centres (such as Harbour Grace) to function if different judges had to sit on matters involving the same parties. This was touched on in Thorne . This is true in both the criminal and family law context where the same individuals may be appearing on numerous proceedings before the same judge.

In fact, in family law matters, it is often preferable to have the same judge appear on subsequent proceedings to ensure that a judge has a full history. The matter could then be decided more expeditiously than if another judge had to become involved. 3. I find that the Appellants’ argument is based upon mere suspicion of partiality. Applying the principles applicable to a reasonable apprehension of bias, there must be “something more”.

With respect to the trial judge’s queries regarding the reason for delay in bringing the recusal application, I find it is entirely appropriate for a trial judge to question counsel on the reason why an application for recusal was not brought immediately once a litigant became aware of the potential grounds on which to seek recusal. The bona fides of the application must be considered as well as timing issues, especially in a child protection proceeding. In this matter, the trial judge merely asked relevant questions. Further, she made no finding that the application was brought for an improper motive.

I further find that the trial judge did not err by placing undue emphasis on the issue of delay. In all court matters, and particularly in child protection proceedings, delay is a highly relevant consideration. The trial judge’s concern on this issue was relevant and appropriate. It does not mean that she was predisposed to deny the application or that she failed to take all relevant considerations into account. She allowed and heard full argument on the issues.

Finally, I am not satisfied that an off-hand comment by the trial judge noting the Appellants’ absence and the Second Respondent’s presence, even coupled with the trial judge’s queries about the curiosity of the application being raised so late, qualifies as “something more” than a mere suspicion of partiality. 4. I find that the Appellants have failed to present strong evidence demonstrating that a reasonable and right-minded person would conclude on the balance of probabilities that the trial judge would not fairly try the case.

In particular, the Appellants have not produced a transcript or other evidence from the criminal trial that would show that the trial judge may have been predisposed to decide against J.W. Further, a review of the entirety of the trial transcript indicates that the trial judge was very accommodating to all parties. She allowed many adjournments, for example when counsel for one of the Appellants was ill or when one of the Appellants was upset. She also adjusted her

schedule and the court docket on numerous occasions to allow for the continuation of evidence to ensure the parties had a full opportunity to present their case. 5. There is nothing in the body of the judgment itself, in the conduct of the trial judge, or any other portion of the record which would indicate there was a reasonable apprehension of bias on the part of the trial judge.

The applications’ judge made no error in law in refusing to recuse herself. 2) Did the trial judge err in law in determining that aggression towards, and non-cooperation with, CYFS provided a basis for placing J.A. in the continuous custody of the Manager? [ 55 ] The Appellants say that the trial judge erred in linking a parent’s poor relationship with CYFS with their ability to adequately parent and protect their children.

The Appellants submit that the relevant portion of the Decision is as follows: THE COURT: So I’ll start with [J.A.] Is [J.A.] in need of protective intervention pursuant to s. 10 of the CYCPA thereby justifying this Court’s intervention? … There’s been a lot of evidence heard in this trial, but I will summarize the evidence that convinces me that J.A. is in need of protective intervention.

… The next factor is [J.W.’s] interaction with CYFS.

His interaction was often belligerent and threatening, and [B.W.] displayed little or noinsight into how [J.W.]’s behaviour was seriously affecting their reunification plan. [J.W.]’s behaviour sometimes required the presenceof security guards at the CYFS building when access was being exercised there, and on several occasions the police had to be called tothe CYFS office at the Dawe Building in Bay Roberts due to [J.W.]’s aggressive behaviour… [Names of parties changedto initials] [56] The Appellants submit that the trial judge erred in relying on their poor relationship with CYFS as a reason for orderingcontinuous custody.

Having a poor relationship with CYFS does not mean that person cannot adequately parent. The Appellants assertthat it seems more often than not that parents who had children removed are found to have strained relationships with CYFS. This is dueto the awkwardness of having strangers in their home or having to attend agency offices for access under the watchful eyes of socialworkers, not to mention the difficulties they encounter trying to have their children returned to them.

The Appellants also submit thatthere appears to be a rise in “defensive social work” whereby minor incidents supporting removal are accentuated, with positive stepsbeing understated. It is in support of, and in the context of, this submission that the Appellants sought to refer to an academic

article thathad not been before the trial judge. The Respondents objected to the use of this academic

article on appeal. [57] After considering the parties’ written and oral submissions on the use of the article, I gave an oral decision finding that thearticle was not properly placed before this Court sitting on appeal. The following are my edited oral reasons. Ruling on admissibility of academic

article on appeal [58] The

article at issue is an open access academic

article found on the NELLCO Legal Scholarship Repository. The author of thearticle is Paul Chill, who is noted to be a clinical professor at the University of Connecticut School of Law. The

article examines thetendency of emergency child removal decisions to become self-reinforcing and self-perpetuating in subsequent child protectionproceedings. [59] However, the Manager noted that statements made in the

article reveal that they are based on research, legislation and practicein the United States. The studies and other articles on which the author relies are also U.S. based. There is no reference to any Canadianstudies, legislation or experience. [60] The Manager further submitted that courts have cautioned against over-reliance on the use of academic articles. The difficultyin relying upon the contents of such social science academic articles, even if offered at trial, was commented on by Justice Timms in theOntario Superior Court of Justice decision in Sordi v. Sordi, 2010 ONSC 2344.

At paragraph 141, the Court stated: 141 I think one must distinguish between the use of academic articles for the purpose of adapting the logic of an argument containedtherein, as opposed relying upon the 'findings' of any particular study. I am of course aware of what the Supreme Court of Canada did inYoung v. Young and what other courts have done in the other cases cited by counsel for the applicant. Candidly, I have always beentroubled by the idea that the court should just accept, at face value, the contents of academic articles submitted during argument, orfound by the court on its own.

Unlike any person offered as an expert witness during a trial, there is no opportunity to determine thedegree of expertise [if any] of the author of the article, or to test the validity of the study, as it relates to the issues at hand. In this postThe Inquiry into Paediatric Pathology in Ontario world, it is my view that trial judges should be very careful about incorporating socialscience articles into judgments, unless they have been produced in an acceptable fashion during the trial.

I have not read any of thearticles submitted by the applicant. [61] The Manager also submitted that a party may not use academic articles on appeal where the effect is to adduce new evidence,especially when those facts were disputed at trial. The unfairness of allowing such articles to be considered on appeal was dealt with atparagraphs 62, 64 and 65 of R. v. Powley (2001), (ON CA), 141 O.A.C. 121, 196 D.L.R. (4th) 221 (C.A.), where thecourt stated: 62 The appellant should be allowed to refer to academic articles dealing with the purpose and

interpretation of the Constitution Act,1982, s. 35. No doubt many such articles may make controversial factual assertions. That appears to be the case here. Plainly, suchassertions do not become evidence, especially where they concern facts that are disputed and that were the subject of consideration onthe evidence at trial. A party cannot escape the obligation to prove controversial facts at trial by filing academic writings as "authorities"on appeal. … …

64 In my view, the appellant should not now be permitted, under the guise of including articles in a book of authorities, to adduce evidence to supplement the record it was prepared to rest on at trial. These articles would not help this court to understand the purpose and social context of the legislation at issue nor do they involve uncontroversial legislative facts.

The articles relate to the specific issues that were litigated at trial and should not be admitted here. 65 To some extent, the weakness in the appellant's position is revealed by its alternative position that if not included in the book of authorities, the articles should be admitted as fresh evidence. On that point, I find that the appellant has failed to satisfy the due diligence test.

Further, the material is not in a form that would make it admissible, particularly as the respondents would be deprived of the right to challenge it by cross-examination in the way that the appellant challenged their experts. [ 62 ] In this case, counsel for the Manager pointed out that the Respondents have been provided no background on the author to challenge his statements or opinions.

Nor do they have the ability to challenge the underlying articles or studies upon which he purportedly relies. [ 63 ] The Manager submitted that, if the Appellants had wished to lead social science evidence at trial, they should have adduced an expert to testify or, at the least, have tendered any relevant academic articles to the trial judge for her consideration. Counsel for the Respondents would have then had an opportunity to respond by challenging the evidence, including the qualifications of the author, the validity of the studies on which he relied, and the relevance of the

article itself. [ 64 ] If the trial judge then determined that it was appropriate to accept such articles, the Respondents would have had an opportunity to present their own articles or other social science evidence. That could have been done, but was not. The

article should therefore not be presented to this Court on appeal. [ 65 ] Having considered the submissions of counsel and the nature of the

article in question, I agreed with the Respondents that such an

article was not properly placed before this Court sitting on appeal. The

article has little to no relevance or value as it is entirely based on U.S. legislation, experience and studies. [ 66 ] As well, it is not proper to place such an academic

article before this Court on appeal. The Appellants seek to rely on this

article to support factual assertions on the reasons for, and effect of, aggressive behaviour. Those issues were disputed at trial. Use of this

article amounts to an attempt to adduce evidence and supplement the record with fresh evidence. As the Respondents have no means of challenging the statements in the

article and were not presented with it at trial, it should not be presented as fresh evidence on this appeal. [ 67 ] While I did not allow the introduction of the article, I have considered the evidence that was adduced at trial to determine whether the trial judge erred when she considered J.W. ’s interactions with CYFS in deciding whether the children were in need of protective intervention.

In considering that issue, she also had the benefit of the Appellants’ explanations for this behaviour, as well as their counsels’ submissions on why the poor relationship should be discounted as a relevant factor. [ 68 ] By way of explanation for the poor relationship, the Appellants point out that, while the Manager’s application for a continuous custody order was filed in February 2013, CYFS was still contemplating reunification for the Appellants and their children in October 2013.

They say that direction did not change until a social worker made the decision to drastically reduce access from eight hours per day in the family home to one hour per day, five days a week, in a small, institutional room in another community. In that environment, the parents were closely observed and highly scrutinized. [ 69 ] The Appellants suggest that the end of the reunification plan was due to a social worker being informed by a supervised access worker that B.W. smelled of alcohol and that J.W. appeared to be under the influence of drugs.

However, there was no suggestion that the Appellants were behaving in a way that constituted a threat to the children. Counsel for the Appellants suggests it is not surprising that the Appellants did not react well to the change. [ 70 ] Counsel for the Appellants further noted that J.W. ’s anger and frustration only seemed to be exacerbated when more and more road blocks were put in the way of he and B.W. having unsupervised access and ultimately having the children returned home.

He was also even more frustrated at what he perceived to be the lack of action by CYFS in response to potential abuse and neglect happening in the foster home. The Appellants submit that evidence of such anger and frustration at CYFS actions should not have been considered by the trial judge in respect of J.W. ’s suitability to care for J.A. as a parent. [ 71 ] The Manager acknowledges that a pervasive theme throughout the testimony was the hostile way J.W. interacted with social workers and service providers. It was an issue that had seen no noticeable improvement.

Multiple witnesses confirmed they had observed these interactions themselves and saw how it derailed meaningful work with the Appellants. [ 72 ] The Manager says the range of inappropriate behaviours went from extreme rudeness to anger, hostility, and yelling, causing concerns for personal safety.

For example, over the course of CYFS involvement with the file, there were numerous occasions when J.W. ’s behaviour would result in CYFS putting security in place or calling the RNC for assistance. [ 73 ] Counsel for the Second Respondent also notes that J.W. ’s behaviour throughout the course of the child protection proceedings was extremely concerning. J.W. had a long criminal record, with recent charges and convictions. He exhibited an inability to control his anger and temper.

He snickered at W.W. in Court repeatedly, made inappropriate comments, verbally abused W.W. and social workers outside of the courthouse on several occasions (as reflected in the transcript), and caused numerous scenes with CYFS that necessitated police involvement.

[ 74 ] There were also incidents where B.W. appeared under the influence at a visit and refused to remain after to speak with the social worker. There was a serious incident on July 21, 2014 when the visit was terminated due to inappropriate conversations and J.W. ’s behaviour.

J.W. was angry, yelling and screaming inside the building with J.A. present. [ 75 ] It was also reported by multiple witnesses that the Appellants would focus on their grievances with CYFS social workers as opposed to placing their focus on improving upon the identified child protection issues. [ 76 ] Overall, the Manager says the main thrust of the evidence adduced regarding aggression and lack of cooperation with CYFS was to show that this behaviour was a bar to the parents moving ahead with progress on identified child protection concerns that fell within the risk factors set forth in

section 10 of the Children and Youth Care and Protection Act . [ 77 ] While aggression and lack of cooperation may not be specifically identified as

section 10 factors, the Manager says such behaviour is relevant to a determination of whether J.A. was at risk of physical or emotional harm by the parents’ conduct (sections 10(1)(

a) and (c)). Such conduct is also an appropriate consideration in determining whether a child is living with a parent whose actions show a propensity to violence (section 10(1)(m)). [ 78 ] The Manager points to the portion of the trial judge’s decision (in bold below) which immediately follows the portion referred to by the Appellants. The trial judge specifically notes how this type of behaviour impacted J.W. ’s ability to parent and work towards a reunification plan. His ( J.W. ’

s) interaction was often belligerent and threatening, and [B.W.] displayed little or no insight into how [ J.W. ]’s behaviour was seriously affecting their reunification plan. [ J.W. ]’s behaviour sometimes required the presence of security guards at the CYFS building when access was being exercised there, and on several occasions the police had to be called to the CYFS office at the Dawe Building in Bay Roberts due to [ J.W. ]’s aggressive behaviour. [ J.W. ] is oftentimes unable to control his temper and shows no insight into how this behaviour impacts his ability to parent and be protective towards two children, as well [B.W.] shows no insight into how [ J.W. ]’s behaviour negatively impacts the children. [Names of parties changed to initials] [ 79 ] At another point in her Decision, the trial judge commented on how J.W. ’s behaviour affected the children as follows: [ J.W. ] was sometimes accusatory and hostile towards [J.R.] and would engage in conversations regarding CYFS involvement and the visitation that were inappropriate for the child’s age.

He also sometimes favored [J.A.] over the older child… … [J.R.]’s telephone access had to be restricted with [ J.W. ] and [B.W.] because of inappropriate comments that were made to the child. This restriction was put in place partly at [J.R.]’s request. [Names of parties changed to initials] [ 80 ] The Respondents submit the above-quoted portions of the Decision reveal the trial judge considered J.W. ’s interactions with CYFS social workers in considering relevant

section 10 factors. Further, she found B.W. showed no insight into how J.W. ’s behaviour negatively impacted the children, thereby finding that B.W.’s actions also contributed to the risk factors. [ 81 ] Having considered the totality of the record and Decision, I find that the trial judge considered the behaviour of the Appellants in light of her assessment of relevant risk factors. Her consideration of this behaviour formed part of her overall consideration of risk to the children and the Appellants’ parenting abilities.

As a result, I find that the trial judge made no error in law in considering evidence of J.W. ’s non-cooperation with, and aggression towards, CYFS as a factor in determining whether the children were at risk of harm. 3) Did the trial judge err in fact in finding that there were ongoing concerns with respect to the Appellants’ drug and/or alcohol abuse? [ 82 ] The Appellants submit that while alcohol and drug use was a concern with them in the past, the trial judge erred in fact in finding that it was an ongoing concern.

The Appellants refer to the following portion of the Decision citing alcohol and drug use as a risk factor: The next factor is that the parents continue to use drugs and – sorry, is the parents’ continued use of drug and alcohol – drugs and alcohol subsequent to the removal of the children, knowing that being alcohol – and drug-free was crucial to the reunification plan… [ 83 ] The transcript reveals that B.W. testified quite honestly that she should not have been drinking with the children in her care the day they were removed, thereby acknowledging there were reasons for the removal.

She also testified she was open to rehabilitation, having (

i) participated in a three-week addictions service program at Humberwood; (ii) attended addictions counselling for a lengthy period of time; and (iii) attended an alcoholics anonymous/narcotics anonymous dependency group called U-Turns on Friday nights. J.W. also testified that he completed the Humberwood program, engaged with an addictions counsellor and, on occasion, accompanied B.W. to U-Turns. [ 84 ] There was evidence that both parents were prescribed certain medications including the anti-anxiety drug, Ativan.

While some witnesses voiced concerns that the parents may be abusing prescription drugs, the Appellants submit there was no supporting medical evidence or proof of abuse of prescription drugs. [ 85 ] The Appellants also note that they testified to several instances in which both claimed they were falsely accused by support workers and CYFS social workers of being under the influence of drugs or alcohol. The Appellants refer to one specific occasion when B.W. even offered to do a breathalyzer test with an RCMP officer present but CYFS did not make this type of testing available to her.

[ 86 ] As well, while the Appellants acknowledged occasional “slips”, they say there was no proof that any continued drug and/or alcohol use presented a risk to the children, and certainly not to the extent that would justify continued protective intervention. [ 87 ] On the contrary, the Respondents submit there was a tremendous amount of evidence adduced concerning the Appellants’ continuing drug and/or alcohol use throughout CYFS involvement.

In particular, J.W. was noted to be using alcohol during one access visit and both Appellants were using marijuana during another visit. [ 88 ] Other serious incidents of alcohol and/or drug use were specifically referenced by the trial judge in the Decision. One such incident was in January 2014 when B.W. was found intoxicated on the floor of her home. On another occasion in February 2014, B.W. was extremely intoxicated, held in the lock-up and treated at hospital.

She did not provide this information to her addictions counsellor. [ 89 ] There were other serious incidents of intoxication involving J.W. , including in early 2014 when he was extremely intoxicated, fell into a ditch and seriously injured himself. It was discovered that twelve Ativan pills were missing from a prescription filled earlier that same day. Despite this incident, J.W. did not reconnect with his counsellor. [ 90 ] The Respondents note that misuse of prescription medication was also a concern. It is notable that B.W. denied that J.W. took medications that were not prescribed.

However, this contradicted significant amounts of testimony, including J.W. ’s own testimony that he took B.W.’s medications on several occasions. [ 91 ] The Manager also notes that one of the goals identified by CYFS to address the addictions issue was participation in addiction services counselling. Despite some initial engagement with counselling, the Affidavits filed by social workers are replete with references to B.W. and J.W. continuing to represent as impaired, slurring their speech and almost falling asleep during access visits, as late as March and May of 2015.

Their failure to fully engage in forthright counselling sessions was also noted by the trial judge and is dealt with in a separate ground of appeal later in this decision. [ 92 ] The impact on the children was also evidenced through the evidence of J.R.’s counsellor, Wendy Cranford.

She indicated that, during sessions with J.R. in the months prior to her testimony in December of 2014, J.R. had been worried about her mom’s drinking and about J.W. and B.W. yelling. [ 93 ] The Respondents submit that the trial judge therefore made no error in fact in determining from the evidence that drug and alcohol use was a long-standing and ongoing problem. In particular, the trial judge stated: …no extensive periods of sobriety were accomplished, despite the passage of four years since the children’s removal.

They were so unwilling or unable to remain sober that on several occasions drug and alcohol use was documented by CYFS while [ J.W. ] and [B.W.] were exercising supervised access. … These parents chose to abuse alcohol and drugs during a supervised access visit in their home that occurred two years after the children were removed from their care.

If they behave in this manner while being supervised, this Court has no confidence that they will properly care for the children in the absence of supervision. [ 94 ] Having reviewed the record in its totality, I agree with the Respondents that there was evidentiary support for the trial judge’s finding that the Appellants’ alcohol and/or drug use remained a risk factor for the children.

While there was evidence the Appellants attempted to avail of services relating to alcohol and/or drug misuse, there was also evidence that the Appellants were not always forthright with service providers and that they did not have sustained periods of sobriety. There was not only direct evidence of drug and/or alcohol use but there was also evidence of underlying facts upon which the trial judge could rely to draw an inference of continuing drug and/or alcohol use.

There was therefore no manifest or palpable and overriding error made by the trial judge in respect of this finding. 4) Did the trial judge err in fact in finding that B.W. had refused to complete drug testing during Court proceedings? [ 95 ] One of the facts the trial judge cited in support of the Decision was that B.W. never completed a drug test throughout the course of the proceedings, despite being asked to do so. The Appellants state, and the Respondents acknowledge, that this statement is not correct.

In fact, the evidence revealed B.W. had done some hair follicle testing and urinalysis. [ 96 ] However, the Respondents submit that this error of fact cannot be characterized as a palpable and overriding error in the context of determining whether there was a need for protective intervention. What is accurate is that B.W. never produced a clean screen throughout the course of the proceeding. It is also accurate that there were times that B.W. and J.W. refused testing, or testing at the times requested by CYFS (e.g. random versus at a time of B.W.’s choosing), for various reasons.

The evidence of social worker Harvey was that J.W. and B.W. would not complete drug testing as late as February 2015. They wanted to do it later (in six weeks or so) as they were both cutting down on their use of weed. [ 97 ] As such, while it is evident that the trial judge erred in fact in stating that B.W. did not complete drug testing, I agree with the Respondents that this error of fact cannot be described as a manifest or palpable and overriding error.

It is evident that the trial judge made the comment on the failure to complete testing as support for her finding that drug and alcohol use remained a concern. The evidence of some refusals and no clean screens supports that conclusion.

5) Did the trial judge err in fact in finding that the Appellants had limited participation in mental health and addictions counselling? [ 98 ] Yet another factor the trial judge cited in support of the Decision was that the Appellants had limited participation in mental health and addictions counselling.

More specifically, she stated: THE COURT: The next factor – when both parents attended – while both parents attended Humberwood since the removal and [B.W.] has been involved in the U-Turn Program, they had limited participation in mental health and addictions counselling, despite this being required and supported by CYFS. [Names of parties changed to initials] [ 99 ] The Appellants submit that the trial judge either mistook the evidence before her or, alternatively, failed to consider evidence essential to the outcome of the case.

In particular, the evidence revealed that both Appellants self-referred to mental health and addictions counsellors, spent significant time working on their substance abuse issues, and had positive reports from their addictions counsellors. The Appellants note that their addictions counsellors wrote a number of reports to CYFS to update them on progress. These counsellors also testified at trial. [ 100 ] The Appellants submit that, in light of the evidence given by the Appellants’ respective counsellors, it cannot be said that there was “limited participation” in mental health and addictions counselling.

There was also no indication from the Manager that CYFS required any further mental health and addictions counselling over and above what the Appellants were already receiving. As such, the Appellants submit this was a manifest or palpable and overriding error in a finding of fact. [ 101 ] On the other hand, the Manager says that, while both Appellants attended the Humberwood program, there continued to be ongoing incidents of one or both being under the influence of drugs and/or alcohol.

The Manager also submits that neither Appellant engaged in any meaningful way with individual mental health and addictions counselling after Humberwood. [ 102 ] While counsellors for both Appellants testified, it was clear from their evidence that they relied upon their clients’ self-reporting of sobriety. In fact, while the Appellants were reporting sobriety, they failed to disclose significant alcohol and/or drug incidents requiring police involvement and hospitalization in early 2014.

The Manager submits that services for both ended without any measurable progress in terms of gaining insight or maintaining sobriety. [ 103 ] Counsel for the Second Respondent also notes that J.W. attended counselling early on but, for a significant period of time, he only discussed his partner’s addictions. He did not initially acknowledge that he had current issues with drug or alcohol use. Further, while J.W. did attend Humberwood, there was no sustained period of sobriety and he disengaged from counselling and U-turns.

Despite being discharged from counselling in September 2013, the evidence shows he was continuing to use drugs. He was therefore not open with his counsellor. [ 104 ] Social worker Harvey also noted concerns around J.W. ’s mental health status, including suicide threats and ongoing concerning behaviours. J.W. never addressed these issues. His mental health counselling focused on co-dependent behaviour and stress associated with the removal. [ 105 ] It is evident from the Decision that the trial judge considered the counselling evidence.

In fact, she referenced counselling services elsewhere in the Decision when she commented that the Appellants did not seek assistance from their addictions counsellors after the serious incidents of intoxication referred to earlier in this appellate decision. [ 106 ] It is notable that the trial judge did not find that there was no participation in those services. Rather, she found that the participation was limited. The totality of the evidence supports a finding that the Appellants were less than forthright with the counsellors as to their continuing use of alcohol and other substances.

The counsellors’ conclusions that the Appellants had met their therapeutic goals was based upon the Appellants’ non-disclosure of continuing use.

The finding that participation in services was limited therefore does not give rise to a reasoned belief that the trial judge forgot, ignored or misconceived the evidence in a way that affected her conclusion. [ 107 ] Further, the suggestion that CYFS never demanded more counselling during the course of the proceedings does not lead to a conclusion that the trial judge made an error in fact in describing CYFS as requiring and supporting their participation in mental health and addictions counselling.

The trial judge had ample evidence to support a finding that CYFS required and supported participation by the Appellants in those services.

The fact that CYFS did not insist on re-referring the Appellants to counselling after they had failed to be honest about their alcohol and/or drug use does not mean CYFS did not support the use of such services. 6) Did the trial judge err in fact in finding that the Appellants refused to avail of the services of a behavioral management specialist? [ 108 ] The trial judge found that the Appellants refused to take advantage of the services of a behavioural management specialist proposed by CYFS, stating: THE COURT: The next factor – [ J.W. ] and [B.W.] refused to avail of the services of a Behavioural Management Specialist to assist with their parenting and with some of the challenging behaviours being displayed by the children.

This, despite the fact that the parents, and particularly [ J.W. ], had sometimes become frustrated with the children during the supervised access visits. Behavioural Management Specialist Ray Downey made three separate attempts to assist the parents and noted that during his interactions with [ J.W. ] and [B.W.], [ J.W. ] maintained that the negative behaviour of the children was their own fault and he saw no problem with his parenting skills. [Names of parties changed to initials] [ 109 ] The Appellants assert that finding was an error in fact, referring to a letter entered into evidence from Mr.

Downey to social worker Harvey dated November 14, 2013. That letter stated as follows:

…Although they were initially agreeable and willing to provide background information, they were reluctant to identify any issues relating to their parenting or the subsequent behaviour of the children. Both struggled to understand how their own behaviour as parents could impact their children. [ J.W. ] insisted that any negative behaviours the children engaged in were their fault alone or the result of other people in their lives. They were also concerned that I was not investigating the foster home.

I explained that my goal was to assist them in understanding the behaviour of the children and to assist them in developing parenting skills and strategies. In this workers opinion, based on conversations with [B.W.] and [ J.W. ] there continued to exist an undercurrent of frustration and anger directed at those who they felt were interfering in their lives. They appeared willing but functionally they did not engage in the services our program was offering. [Names of parties changed to initials] [ 110 ] The Appellants submit that, in light of the Appellants’ willingness to engage, Mr.

Downey ought to have taken steps to help them functionally participate. Their inability to functionally participate is not evidence of a refusal to participate. [ 111 ] On the other hand, the Manager notes that the trial judge correctly found that Mr. Downey made three separate attempts to assist the parents.

However, J.W. continued to assert that the negative behaviour of the children was the children’s own fault and saw no problem with his own parenting skills. [ 112 ] The Second Respondent also notes that, throughout the course of CYFS involvement and even in his testimony, J.W. made it clear that he felt the issues were not due to the Appellants’ parenting, but were either the fault of CYFS, W.W. or J.R.

J.W. frequently blamed J.R. for J.A.’s behaviour, with the evidence of several access workers confirming inconsistent discipline and strain in the relationship between J.W. and J.R. [ 113 ] Having considered the evidence on this issue, I conclude that the trial judge made no error in fact in finding that the parents effectively refused to avail of the behaviour management services. The evidence indicates that, despite attempts by Mr.

Downey to provide services, the Appellants simply did not develop the required insight or engagement in order to participate. 7) Did the trial judge err in fact in finding that a risk of exposure to family violence existed if the children remained in the custody of the Appellants? [ 114 ] The trial judge said the following on the risk of exposure to family violence: THE COURT: On the issue of family violence, while this is not the primary concern, I am satisfied that a risk of exposure exists due primarily to the fight that occurred between [ J.W. ] and [a neighbour] on the day of removal, and due to the allegations of violence made against [ J.W. ] by [B.W.] and her friends on that same day. [Names of parties changed to initials and name of neighbour removed] [ 115 ] The Appellants submit that the fight that occurred between J.W. and a neighbor cannot be classified as family violence.

There was also no indication that the children witnessed the altercation between the two men. The Appellants also submit that, while the social workers who testified spoke about a history of domestic violence in the relationship between the Appellants, there was no evidence the police were ever called to a domestic dispute. [ 116 ] The Appellants acknowledge that social worker Coombs testified as to a meeting with B.W., a friend (S.F.) and a family member (M.S.) following the children’s removal.

During this meeting, S.F. and M.S. disclosed instances of physical and verbal violence in the relationship between B.W. and J.W., with J.W. being the aggressor. At that time, B.W. cried and agreed with these statements. However, the Appellants note that social worker Coombs acknowledged that B.W. subsequently denied J.W. had been physically aggressive with her, saying she made these previous statements because she was upset with J.W. for taking J.A. Further, the Appellants note that neither S.F. nor M.S. testified at trial.

As such, their alleged comments were hearsay and should have been inadmissible. [ 117 ] Finally, the Appellants note there was no other evidence or suggestion by CYFS of domestic violence since the removal other than one occasion in December 2011, two months after the children’s removal. At that time, B.W. appeared at an access visit with bruising on her eye. When questioned on this incident, B.W. denied there was violence in the relationship and said that she fell into a friend’s cupboard door.

According to social worker Coombs’, she offered B.W. information on O’Shaughnessy House, but B.W. became frustrated and continued to deny violence in the relationship. [ 118 ] For her part, the Manager submits the evidence substantiated the risk of exposure to violence.

This evidence included B.W. admitting that J.W. had assaulted her cousin, the evidence regarding the fight between J.W. and the neighbor in the vicinity of the family home, B.W. having a black eye with changing explanations, and finally the multiple occasions when J.W. was noted to be domineering over B.W. in dealings with CYFS. [ 119 ] Further, while neither B.W. nor J.W. admitted to any domestic violence in their relationship, the Manager points to social worker Coombs’ meeting with B.W. and her friends as an indicator that fighting and/or violence was present in the relationship.

Also, J.R. spoke with her counsellor, Wendy Cranford, about being woken up in the night due to fighting. [ 120 ] Having considered the submissions of the parties and based upon my review of the evidence, I find that the trial judge made no reviewable error in finding there was a risk of the children being exposed to family violence. There was evidence of a fight with a neighbor near the family home (a neighbour who had been consuming alcohol with B.W.) and evidence that B.W.’s friends reported prior violence.

While this was later denied by B.W., this does not mean the allegations were not made. [ 121 ] With respect to the friend and family member not testifying, section 48(2)(

a) of the former Children and Youth Care and Protection Act (section 51(2)(

a) of the current Children, Youth and Families Act ) allows a judge to admit and act upon evidence, including hearsay, that a judge considers relevant and reliable in the circumstances.

[ 122 ] There was also other evidence of a risk of family violence referred to above. While the evidence was somewhat dated, there was also no evidence that any risk had been mitigated. [ 123 ] Fi

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