Child and Family Services of Western Date:, 2016 MBCA 120

Citation: Child and Family Services of Western Date: 20161202 Manitoba v CLH et al, 2016 MBCA 120 Docket: AH16-30-08540 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Madam Justice Janice L. leMaistre BETWEEN : CHILD AND FAMILY SERVICES ) A. J. Synyshyn OF WESTERN MANITOBA ) for the Appellant ) (Petitioner) Respondent ) K. L. Webb ) for the Respondent - and - ) C. L. H. ) C. L. H. ) J. D. Cram ) for the Respondent (Respondent) Respondent ) Child and Family Services ) of Western Manitoba - and - ) ) Appeal heard and J. J.

H. ) Decision pronounced: ) December 2, 2016 (Respondent) Appellant ) NOTICE OF RESTRICTION ON PUBLICATION: No one may disclose any information likely to identify any person involved in the proceedings as a party or a witness (see section 75(2) of The Child and Family Services Act , CCSM c C80). On appeal from 2015 MBQB 203 , 322 ManR (2d) 277 BEARD JA (for the Court): I. THE ISSUES [ 1 ] The respondent CLH (the mother) and the respondent JJH (the father) (collectively, the parents) each appeal the permanent order of guardianship of their daughter (

N) to Child and Family Services of Western Manitoba (CFS). The order was made pursuant to The Child and Family Services Act , CCSM c C80 (the Act ). [ 2 ] The parents are no longer living together, so they have filed separate appeals. Both parents argue that the trial judge erred in finding that the child was in need of protection at the trial date and, if the child was still in need of protection, in making an order of permanent guardianship instead of a lesser order. The father also argues that the trial judge erred in not making a determinative finding as to the cause of the child’s injuries. II.

THE FACTS [ 3 ] The parents dated for a period, lived together with the mother’s mother (the grandmother) for about a year and, in early 2013, they moved into their own place. At that time, the mother was 21 years old and the father was 22 years old. Throughout the relevant time period, the mother was in receipt of a disability allowance and income assistance because she was unable to work due to anxiety and depression, while the father was employed on a full-time basis at Burger King, where he had worked for a couple of years. [ 4 ] N was born on December 2, 2013.

The mother was a stay-at-home mother, while the father continued to work on a full-time basis.

[5] On March 27, 2014, the mother and grandmother took N to the emergency room at the hospital as a result of N beinglistless and unresponsive. At the hospital, N was found to have scarring under her chin, bruising around her eyes and was dehydrated andunresponsive. The mother advised the attending CFS worker that N had a history of failing to breathe and that she would pinch her to gether to respond. Neither the mother nor the father could explain how the injuries had occurred.

This led to N being apprehended. [6] The child’s condition worsened due to a severe brain injury and, on March 28, 2014, she was air-lifted to Winnipeg. The parents gave several explanations regarding the possible causes of the child’s many injuries, all of which were considered by thespecialist who examined the child and provided an expert report as to her condition.

The expert found that the child had sustainedrepetitive acceleration-deceleration injuries, commonly referred to as “shaken baby syndrome”, leading to the brain injury and that noneof the explanations offered by the parents could account for that and the other injuries that the child had suffered. He concluded that“These injuries in constellation are almost certainly caused by abuse and in order to protect, [N] should not be placed in the home.” [7] As a result of the injuries, N has suffered permanent brain damage.

She is developmentally delayed and is receivingintensive physical, occupational and speech therapy. [8] The parents had many interviews with police and child care workers in an effort to determine what caused N’sinjuries and how to plan for her future care. They gave several different versions of the sequence of events the evening before theinjuries occurred. CFS suspected that the father was abusive to the mother, but that was denied by both parents up until the trial. Further, both parents denied being responsible for causing the child’s injuries and, in particular, the brain injury.

The CFS worker saidthat the mother admitted to shaking the baby during one of their interviews and that the mother called the next day to deny that she haddone so, while the mother denied making that admission. [9] The father assaulted the mother on or about March 3, 2015, which led to the father being arrested and charged withseveral offences. After the assault, the mother changed her story and told the CFS worker that the father had been abusive from almostthe beginning of the relationship. This included verbal abuse and, soon after, physical abuse that she said continued on a regular basis.

She repeated this at trial, and she also described him as controlling her activities and, in particular, her contact with her family. She saidthat many of the responses that she gave to CFS were because she was telling the workers what he told her to say, which she did becauseshe was afraid of him. [10] The father pled guilty to the charges, although he says that he blacked out and has no memory of what occurred. Hewas sentenced to a period of probation with conditions.

Further, he admitted to having breached the conditions of one of his orders bydrinking and by contacting the mother. [11] While awaiting sentence, the father took a number of courses, including courses regarding domestic violence, angermanagement and a parenting course. After completing those courses, he said that he came to the understanding that he had been verballyabusive to the mother. He continued to deny any physical abuse, except for that which occurred on March 3, 2015. [12] The mother was charged with aggravated assault in relation to the injuries to N.

She had pled not guilty and thosecharges remained outstanding as of the date of the trial. We were advised at the hearing that, subsequent to the trial, the mother pledguilty to a charge of failing to provide the necessities of life to N as a result of the delay in taking her to the hospital. She was sentencedto a period of probation of three years. [13] At the trial, each parent denied having injured N and pointed the finger at the other parent as having caused the harm. During his testimony, the father testified that he accepted that the mother had caused the harm.

Each parent offered a plan to takecustody of N and to raise her as a single parent. [14] Early on, the parents consented to an order of temporary guardianship to CFS. This order was set aside at trial due tothe parents not having been advised of the effect of such an order or of their right to consult a lawyer before giving their consent. III.

STANDARD OF REVIEW [15] The standard of review applicable to an appeal of an order of permanent guardianship was most recently set out by thisCourt in Michif Child and Family Services v VEMB et al, 2016 MBCA 13, 326 ManR (2d) 69 (at paras 16-18): The case of Métis Child, Family and Community Services v. A.J.M. et al. (2008), 2008 MBCA 30 , 225 Man.R. (2d)261; 419 W.A.C. 261; 2008 MBCA 30, at paras. 26-28, leave to appeal dismissed [2008] S.C.C.A. No. 259; 390 N.R. 382 (S.C.C.), setsout the standard for appellate review of a permanent order of guardianship made by a trial judge.

The decision of a trial judge should notbe interfered with unless there has been an error in principle, a misapprehension of the evidence or a manifest failure to give dueconsideration to the evidence. See also Folster v. Children’s Aid Society of Winnipeg and Prince (1977), (MBCA), 4 R.F.L.(2d) 200 (Man. C.A.), at p. 204. Absent palpable and overriding error, an appellate court ought not to interfere with factualfindings made by a trial judge simply because it disagrees with the weight afforded to the underlying evidence.

See also Housen v.Nikolaisen et al., 2002 SCC 33 , [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33; and R. v. Clark(D.M.), 2005 SCC 2 , [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, at para. 9. In Métis Child, Family and Community Services, the Court also emphasized that context is important in child protection cases.

Pursuant to section 45(1) of the Act, a permanent order terminates parental rights and obligations and should therefore only beconsidered as a last resort “where the court is satisfied that a complete severance of all parental ties is in the best interests of the child”(Child and Family Services of Winnipeg East v. K.A.D. et al. (1995), (MB CA), 102 Man.R. (2d) 262; 93 W.A.C.262 (C.A.), at para. 24).

When reviewing credibility findings, great deference is owed because the trial judge has the advantage of seeing and hearing thewitnesses. See R. v. N.S. et al., 2012 SCC 72 , [2012] 3 S.C.R. 726; 437 N.R. 344; 297 O.A.C. 200; 2012 SCC 72, at para. 25. The court stated in R. v. Gagnon (L.), 2006 SCC 17 , [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17 (at para. 20): Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L. [2005 SCC 25, [2005] 1 S.C.R. 401], that in the absence of a palpable and overriding error bythe trial judge, his or her perceptions should be respected. [16] In addition to making findings of fact and assessing credibility, trial judges are often required to draw conclusions orinferences from the facts.

In HL v Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401, the Supreme Court of Canada providedthe following directions for appellate review of such findings (at para 74): . . . . Not infrequently, different inferences may reasonable be drawn from facts found by the trial judge to have been directlyproven. Appellate scrutiny determines whether inferences drawn by the judge are “reasonably supported by the evidence”.

If they are,the reviewing court cannot reweigh the evidence by substituting, for the reasonable inference preferred by the trial judge, an equally —or even more — persuasive inference of its own. This fundamental rule is, once again, entirely consistent with both the majority andminority reasons in Housen. [17] These are the standards of review that apply to this appeal. IV. ANALYSIS [18] The first issue is the father’s argument that the trial judge erred in failing to determine the cause of N’s injuries.

Thefather argues that there was enough evidence to conclude that the mother was responsible for N’s injuries and that the trial judge erred inprinciple by failing to make any finding as to who was responsible for the injuries. [19] We do not agree that this argument raises either an error in principle or a misapprehension of the evidence. In our view,it raises a question of fact – the father is arguing that, based on the evidence, the trial judge should have been able to come to theconclusion that the mother caused the injuries.

In that, he points particularly to the mother’s admission to the CFS worker on May 12,2014. [20] The parties gave different versions of the events, which had changed over time, even up to the trial. The motherexplained that her earlier versions were not correct, but were dictated to her by the father, and that she went along because she was beingabused. Throughout most of their dealings with CFS, each parent denied harming N and also denied that the other had done so. By thetrial, they both continued to deny harming N, but the father was saying that he believed that the mother had done so.

While he pointed toher admission to the CFS worker, the mother denied having made that admission and said that she was confused and felt pressured by theCFS worker. Further, the evidence was that she called the CFS worker the next day to deny that she had shaken N.

The trial judge madespecific reference to the admission evidence and to the denial in his reasons, so he was clearly alive to this evidence (see para 24). [21] While there was evidence upon which the trial judge could have found that the mother caused the injuries, the evidencewas not strong and that was certainly not the only conclusion that could be drawn. The trial judge reviewed the essence of the evidenceon this point, including how it had changed over time, and concluded (at paras 29, 34): A review of the testimony of [the] mother and [the] father provides little assistance in resolving how [N] was injured.

As of March 27th, 2014, [N] was presented to emergency services as a victim of having been violently shaken while in the care of herparents. As of December of 2015, a year and a half after the apprehension, the court is no closer to understanding how [N] was injured. The mystery remains. [22] In our view, the trial judge committed no error in so concluding. The identity of the person who caused the injuries wasa question of fact, and the trial judge was not required at law to come to any conclusion on that matter.

The finding that the evidencewas not sufficient to enable him to determine, even on a civil standard, who had caused the injuries was open to him on the evidence and,in our view, he made no palpable and overriding error in so concluding. [23] The second issue relates to whether the trial judge erred in finding that N was in need of protection at the date of thetrial.

[24] The father argues that he did not injure N and that there was an abundance of evidence that the mother caused N’sinjuries, including her admission to the CFS worker.

He further argues that, to the extent that there were concerns about his domesticviolence and alcohol abuse, there was evidence that he had taken steps to deal with those issues, including taking courses on angermanagement and domestic abuse and also attending to the Addictions Foundation of Manitoba to address any alcohol issues. [25] The mother says that, other than the recanted confession, there was no direct evidence that she caused the injury thatresulted in N going to the hospital.

She argues that the evidence, in its totality, did not support a finding that N remained in need ofprotection and the very significant consequences from that finding. [26] Both parents argue that, while the test for determining whether a child is in need of protection is the ordinary civilstandard, the evidence must be convincing due to the profound consequences of a positive finding.

Each takes the position that theevidence was insufficient to ground an order of permanent guardianship and take away both parents’ rights to N and N’s right to knowher parents. [27] None of the arguments demonstrate that the trial judge made any error of law in either the application of the legalprinciples or in his understanding of the evidence; rather, each parent takes issue with his conclusion that the evidence was sufficient tomake a finding that N was in need of protection [28] The trial judge was aware of the seriousness of the consequences of making a finding that N was in need of protection.

He quoted extensively on that very point (at para 11) from the Supreme Court of Canada’s decision in New Brunswick (Minister ofHealth and Community Services) v G(J), (SCC), [1999] 3 SCR 46, albeit in relation to the question of the validity ofthe three-month temporary order that he ultimately set aside, including the following (New Brunswick at para 76): The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have a more profoundeffect on the lives of both parent and child.

Not only is the parent’s right to security of the person at stake, the child’s is as well. Sincethe best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriouslyaffected by the interference with the parent-child relationship. [29] The issue of whether the evidence was sufficient to meet the test for a child in need of protection raises a question ofmixed fact and law; thus, the standard of review is that of palpable and overriding error.

The reasons demonstrate that the trial judgewas aware of the positions of each parent, including the steps that each had taken between the apprehension and the trial, and that he tookall of the evidence into account in coming to his decision. It was clearly open to him on the evidence to find that N was in need ofprotection at the date of the trial, and we are of the view that he made no palpable and overriding error in so concluding. [30] The third issue is whether, having found that N was in need of protection at the date of the trial, the trial judge erred ingranting a permanent order of guardianship.

Both parents argue that the trial judge’s primary basis for making a permanent order wasthe delay in coming to a resolution. They say that, in so doing, he failed to give sufficient weight to the importance of the parent-childrelationship within the family structure and the parents’ rights to have a relationship with their daughter. [31] The determination of whether the evidence is such that a permanent order of guardianship should be granted is withinthe purview of the trial judge, and the standard of review is high.

The parties have not raised any errors of law or misapprehension of theevidence – they take issue with the trial judge’s weighing of the evidence and the conclusion that he drew regarding the need for apermanent order. This is either a question of fact or mixed fact and law, reviewable on the standard of palpable and overriding error. [32] The importance of the parent-child relationship and the parents’ rights to have a relationship with N are only two of thefactors to consider in determining what type of order is appropriate.

As CFS points out, another factor is “the merits and the risks of anyplan proposed by the agency that would be caring for the child compared with the merits and the risks of the child returning to orremaining within the family” (at subsection 2(1)(

e) of the Act). [33] The trial judge was aware of the importance of the parent-child relationship and of the parental rights, as he hadreviewed them in detail in his decision to set aside the temporary order (see para 28 herein). [34] The trial judge looked at the possibility of either party being in a position to parent N in the near future – that is, themerits and risks of their plans – and concluded that the evidence did not support that finding. [35] As regards the possibility of either parent being in a position to parent N in the near future, the trial judge stated (at para39): The parents have had over a year and a half to address various issues which need correction to allow them to assume the parenting [ofN].

Despite the passage of time, neither parent has made much progress. Mother has done little or nothing to address her issues ofvictimization, depression, anxiety and mental health. Father presents having taken many steps to improve his parenting skills. However,he remains in denial respecting his issues with alcohol and domestic violence.

I do not believe that the delaying [of] a permanent orderby a further 15 months will result in the parents taking the necessary steps to enable them to parent their child. [36] As regards the risks of the parents’ requests for other than a permanent order, the trial judge stated (at para 40-41):

The Act stipulates a limit to the length a child may be in temporary care of an agency for a reason. Children are entitled to be placed in a secure stable environment in a time period meaningful to their developmental needs. If parents are unable to correct any shortcomings in a relevant time period, then a permanent order should be granted. Children should not be kept in a state of uncertainty. A temporary order as [ sic ] this stage would violate the intention of the Legislature to have child protection matters resolved without undue delay. This apprehension has been before the courts long enough.

The absence of a viable plan to return the child to the care of one or both of her parents cannot be allowed to further delay the need for permanency planning for [N]. [ 37 ] We would find that the trial judge was aware of N’s right to have a relationship with her parents and the parents’ right to have a relationship with N.

When he considered the parents’ plans, however, he found that neither was in a position to parent N at the date of the trial and neither would likely be in a position to do so within the time frame of a further temporary order. [ 38 ] Thus, we are satisfied that he weighed the need for a family relationship with the risks and merits of the parents’ plans regarding that relationship. He came to the conclusion that it was not in N’s best interest to delay the ability of CFS to develop a permanent plan in order to give the parents further time to develop viable plans.

We are of the view that the trial judge made no palpable and overriding error in coming to that conclusion. [ 39 ] For these reasons, we would find that the trial judge did not err in ordering that N be made a permanent ward of CFS. V. CONCLUSION [ 40 ] In the result, both appeals are dismissed and the trial judge’s order is confirmed. JA JA JA