C.D. v. W.S., 2022 NLSC 171

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : C.D. and W.S. v. Newfoundland and Labrador (Child and Youth Services) , 2022 NLSC 171 Date : November 25, 2022 Docket : 202101G0490 Between: C.D. AND W.S. AppellantS And: Manager of Child and Youth Services Zone E 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 biological parents, relatives, and foster families pursuant to

section 55 of the Children, Youth and Families Act. Before: Justice Stacy Ryan On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 0517F00024 dated the 11 th day of December, 2020. Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: September 27, 2022 Appearances: David R. Power Appearing on behalf of the Appellant

Krista M. Atkins Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: T. R. v. Newfoundland and Labrador (Child, Youth and Family Services) , 2014 NLCA 19 ; Newfoundland and Labrador (Child, Youth and Family Services) v. A.G. , 2016 NLTD(F) 37 STATUTES CONSIDERED: Children, Youth and Families Act , S.N.L. 2018, c. C-12.3 REASONS FOR JUDGMENT Ryan, J. : INTRODUCTION [ 1 ] W.S., the Appellant, is the father of two children, aged 9 and 6 (the “Children”). He appeals a decision placing his children in the continuous custody of the Manager of Child and Youth Services (the “Manager”).

BACKGROUND [ 2 ] On August 4, 2017, a telewarrant to remove the Children was granted by a judge of the Provincial Court of Newfoundland and Labrador. The Children were removed from their parents’ care and an application for a protective intervention hearing was filed with the court on August 7, 2017. [ 3 ] Two temporary custody orders were granted by a Provincial Court judge. One was granted on May 10, 2018, and one on December 17, 2018.

The temporary custody orders were of a six month duration. [ 4 ] On March 15, 2019, the Manager filed an application for continuous custody of the Children. [ 5 ] A contested hearing was held and a decision made by the trial judge placed the Children in the continuous custody of the Manager. This decision was given orally on December 11, 2020. [ 6 ] It is that decision which is now subject to review. POSITION OF THE PARTIES [ 7 ] The Appellant appeals the decision of the Provincial Court judge on three grounds: 1.

Whether the Provincial Court judge, in his decision of December 11, 2020, failed to make a finding that the Children were in need of protective intervention pursuant to

section 32 of the Children, Youth and Services Act, S.N.L. 2018, c. C-12.13 (“ Act ”), and if so,

whether that failure nullifies the subsequent continuous custody order. 2. Whether the Provincial Court judge failed to properly weigh the totality of the evidence. 3. Whether the Provincial Court judge adequately considered or gave weight to the plan for parenting put forward by the Appellant. [ 8 ] Counsel for the Manager submits: 1. That a continuous custody order is what was intended and the lack of formal declaration that the Children are in need of protective intervention does not nullify the order. 2.

There was an abundance of evidence upon which to grant the continuous custody order and the trial judge properly considered all of the evidence. 3. The parenting plan put forward was adequately considered but was deficient in outlining how W.S. and his partner could meet the needs of the Children. THE ISSUES [ 9 ] The issues for this appeal are: 1. Did the trial judge err by failing to make a formal declaration that the Children are children in need of protective intervention? If so, does the failure nullify the subsequent continuous custody order? 2.

Did the trial judge err by failing to weigh the totality of the evidence? 3. Did the trial judge err by failing to adequately consider or give weight to the parenting plan put forward by the Appellant? THE STANDARD OF REVIEW [ 10 ] It is well settled that a trial judge’s decision in family matters should be given great deference by appellate courts. [ 11 ] In T.R. v.

Newfoundland and Labrador (Child, Youth and Family Services) , 2014 NLCA 19 , at paragraph 18 , Mercer J states: [18] Whether procedural fairness was observed is an issue of law and accordingly the applicable standard of review on appeal is that of correctness. Appellate deference to a trial decision respecting child protection applies to "fact-based and discretionary family law decisions 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, nevertheless

it is part of the function of appellate review to review the record generally to satisfy itself that there is evidentiary support for the conclusion which the trial judge reached. THE LAW [ 12 ] The relevant sections pertaining to this appeal are section 9(1) of the Children, Youth and Services Act which states: 9.

(1) This Act shall be interpreted and administered in accordance with the principle that the overriding and paramount consideration in a decision made under this Act shall be the best interests of the child or youth. [ 13 ] Section 10(1)(a-

p) of the Act provides for when a child is in need of protective intervention. The relevant sections pertaining to this appeal are 10(1)(a), (c), (l), and (

o) which states: 10.

(1) A child is in need of protective intervention where the child (

a) is being, or is at risk of being, physically harmed by the action or lack of appropriate action by the child’s parent; … (

c) is being, or is at risk of being, emotionally harmed by the parent's conduct and there are reasonable grounds to believe that the emotional harm suffered by the child, or that may be suffered by the child, results from the actions, failure to act or pattern of neglect on the part of the child's parent; … (

l) is living in a situation where there is violence or is living in a situation where there is a risk of violence; … (

o) has been left without adequate supervision appropriate to the child's developmental level; or [ 14 ] Section 32(1) states: 32.

(1) At a protective intervention hearing, a judge shall determine whether a child is in need of protective intervention.

(2) Where a judge finds that a child is in need of protective intervention, the judge shall so declare and order that

… (

d) the child be placed in the continuous custody of a manager; or ISSUE 1 Did the trial judge err by failing to make a formal declaration that the Children are children in need of protective intervention? If so, does the failure nullify the subsequent continuous custody order? [ 15 ] The Appellant submits the legislation requires a declaration that the Children are children in need of protective intervention. They further submit because the trial judge did not make this declaration, he did not assess whether or not the Children were in need of protective intervention pursuant to section 10(1)(a-

p) of the Act . [ 16 ] The position of the Manager is that a continuous custody order is the intended order and this order should remain, notwithstanding there was no declaration that the Children are children in need of protective intervention. [ 17 ] Further, the Manager submits if the trial judge found the Children were not in need of protective intervention, the only option was to return the Children to the parents. The Children were not returned to their parents, they were placed in the continuous custody of the Manager.

This placement reflects the intention of the trial judge. [ 18 ] In the Provincial Court judge’s oral decision given on December 11, 2020, the trial judge stated: “This case has gone on for a very long time. It’s time for these children to have stability, it’s time for these children to have peace and comfort and the opportunity to grow up in a nurturing and safe environment.

I do not think for one second that is possible in the care of W.S. and his partner and I have no hesitation in granting the Manager’s request for continuous custody in this case” There is no declaration that the Children are children in need of protective intervention. [ 19 ] The Order subsequently filed (objected to by counsel for the Appellant) stated: … WHEREAS the Manager of Child and Youth Services, Zone E applied for a continuous custody order pursuant to sections 10(1) (a), (c), (

I) and (o); AND UPON CONSIDERING the pleadings filed, evidence heard and submissions made;

I DO DECLARE that B.D. (DOB) and T.D. (DOB) are children in need of protective intervention pursuant to section 10(1) (a), (c), (

I) and (

o) of the Children, Youth and Families Act; AND I DO ORDER that the children, B.D. (DOB) and T.D. (DOB) be placed in the continuous custody of the Manager of Child and Youth Services pursuant to section 32(2)(

d) of the Children, Youth and Families Act . … [ 20 ] Section 32(1) of the Act clearly contemplates a two-step process. The first step is a finding of whether or not a child is in need of protective intervention pursuant to section 10(1)(a-p) (see: T. R. v. the Manager of Child, Youth and Family Services , 2014 NLCA 19 at para. 4 ). [ 21 ] The judge, in his oral decision, did not make a declaration that the Children were children in need of protective intervention. This is an error.

Does the failure to make a declaration that the Children are children in need of protective intervention nullify the subsequent continuous custody order? [ 22 ] A review of the transcript makes clear that the trial judge turned his mind to whether or not the Children are in need of protective intervention. [ 23 ] He states at page two of the transcript: “And with respect to assessing whether or not continuous custody is merited in this circumstance, I would refer counsel to page five of that decision, paragraph nine, in which Justice Furey said, “In assessing whether or not D.G. is a child in need of protective intervention the question arises as to whether I must consider the circumstances that existed when the Manger’s Application was first filed, or the circumstances at the date of the hearing.” [ 24 ] The trial judge further makes reference at page five of the transcript to the onus on the Manager in establishing whether a child is in need of protective intervention.

This demonstrates the trial judge turned his mind to the question of whether or not the Children were in need of protective intervention. [ 25 ] I agree with counsel for the Appellant that it is not sufficient to conclude the trial judge found the Children were in need of protective intervention because they were placed in the continuous custody of the Manager. There must be a declaration that the Children are in need to protective intervention before moving on to the next step which is to determine the form of the intervention.

[ 26 ] However, if the declaration is not made, the considerations of the trial judge in deciding whether the Children should be placed in continuous custody ought to be reviewed. [ 27 ] The placement of the Children in continuous custody is one of the options permissible pursuant to the legislation after a finding that the Children are children in need of protective intervention.

The intention of the trial judge was clear; to place the Children in the continuous custody of the Manager. [ 28 ] The decision to place the Children in the continuous custody of the Manager was made after an assessment of the evidence, consideration of the Children’s needs, the dynamic of the family structure, the history of the matter, the length of time the Children had been in care, harm to the Children over a long period of time, and a parental capacity report. [ 29 ] I find the decision to place the Children in the continuous custody of the Manager notwithstanding the failure to make a formal declaration that they are Children in need of protective intervention was made after consideration of the grounds enumerated in

section 10 of the Act and in relation to the best interest of the Children. The continuous custody order is not nullified and reflects the intention of the trial judge. I make this finding as it is consistent with section 9(1) of the Act .

ISSUE 2 Did the trial judge err by failing to weight the totality of the evidence? [ 30 ] The Appellant submits that the trial judge, in weighing the totality of the evidence presented, placed undue reliance and regard upon the facts that existed at the time of the initial apprehension and did not give weight to the situation that existed at the time of the hearing. [ 31 ] The Appellant submits the trial judge focused on the circumstances as they existed in the past but made no assessment of the present circumstances as offered at the time of the hearing by W.S. and his partner. [ 32 ] At page 15 of the transcript of the trial judge’s decision, he stated: “If one looks back on the history of this matter, and the length of time that these children have been in care there has been, in my view, ample opportunity for Mr.

S. and his now current partner to get themselves in a position where they could certainly offer a capable alternative to these children being in care permanently.” [ 33 ] The trial judge considered the circumstances that existed at the time of the Children’s removal. He found there was ample opportunity for the Appellant and his partner to rectify and improve those circumstances before the matter proceeded to trial.

He found the Appellant and his partner did little to improve the overall circumstances. [ 34 ] The trial judge found the circumstances had not changed as the Appellant accepted no responsibility for his actions in the past and as evidenced by the Parenting Capacity Assessment written by Brian Kenny, who noted on page 35, “Fundamentally, it’s very difficult to work with a parent to address their problems, when they deny that any such problem exist”. [ 35 ] The evidence of Brian Kenny, heard on October 15, 2020, further stated in the transcript at page 19 “And because of the history of domestic violence and inappropriate discipline, the anger management issues, etcetera, it’s my belief that father does not

present, Mr. S. does not present with the requisite capacity to effectively parent these children over the long term. [ 36 ] The trial judge considered the factors surrounding the removal of the children. He also considered the circumstances leading up to and at the time of the hearing. [ 37 ] He gave weight to the testimony of Brian Kenny, the author of the Parenting Capacity Assessment, and after a consideration of all of the evidence, he came to his conclusion. [ 38 ] The findings he has made are supported by the evidence.

I am unable to find an error in his approach and have no reason to interfere with his findings.

ISSUE 3 Did the trial judge err by failing to consider or give weight to the parenting plan put forward by the Appellant? [ 39 ] The third and final ground of appeal advanced by the Appellant is the trial judge failed to adequately consider or give weight to the plan for parenting put forward by the Appellant. [ 40 ] The Appellant states the trial judge did not consider the parenting plan put forward by W.S. and his partner. [ 41 ] The position of the Manager is that there was no adequate parenting plan put forward by the Appellant nor was there an alternate plan filed with the court. [ 42 ] The evidence with respect to a parenting plan came from the direct evidence of the Appellant and his partner. [ 43 ] The Appellant stated his partner would care for the Children if they were returned to him.

The Appellant testified he does not have any family supports.

The family unit would be comprised of the Appellant, his partner, and the Children. [ 44 ] I agree with counsel for the Manager when it is submitted that the primary caregiver for the Children would be the Appellant’s partner and the Appellant’s role would mainly be to provide financial support to the family. [ 45 ] The Appellant’s partner and the Appellant did establish their parenting plan in broad terms; there was no adequate information put before the court in terms of how they would meet the Children’s needs if they were returned. [ 46 ] The trial judge also considered the evidence of the Appellant’s partner and past issues of domestic violence involving the Appellant and his partner.

He considered her prior involvement with the Manager, and her admission that she lied in the past to the

Manager. That the trial judge did not prefer her evidence is not an error. [ 47 ] The trial judge considered the Appellant’s evidence. The trial judge described the Appellant as failing to take responsibility for his actions and relied on the Parenting Capacity Assessment prepared by Brian Kenny. [ 48 ] The assessment outlined that the Appellant is able to parent so long as it is supervised, time limited, and episodic.

He found the Appellant had basic parenting ability but found a difference in parenting ability required for day to day parenting and parenting ability required for visitation with the Children for discrete periods of time. He found that the Appellant did not have the parenting ability to deal with the daily grind of parenting. [ 49 ] The trial judge found the Children, if placed with the Appellant and his partner, would not receive the care they needed to grow in a nurturing and safe environment. There was evidence to support that conclusion and there is no reason to interfere with that finding.

DISPOSITION [ 50 ] The appeal is dismissed with no order as to costs. _____________________________ STACY RYAN Justice