2014 SKCA 136, 2014 SKCA 136

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 136 Date: 2014-12-23 Docket: CACV2372 In the Matter of a Hearing Under The Child and Family Services Act And in the Matter of: J.N.C.-M ., V.P.W., G.O.L.W., M.J.L.W., R.N.S.W., A.W. Coram: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Ammy Murray for the mother, R.W. Leslie Belloc-Pinder for the Ministry of Social Services Appeal: From: 2013 SKQB 9 Heard: October 30, 2014

Disposition: Appeal dismissed except in relation to the child, Jane Written Reasons: December 23, 2014 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Herauf OTTENBREIT J.A. I. Introduction [ 1 ] This appeal concerns the six children of R.W. [Ramona] who were apprehended under The Child and Family Services Act , SS 1989-90, c C-7.2 [ Act ].

For the purposes of this decision I will refer to Ramona and the children by the pseudonyms given to them by the trial judge. [ 2 ] At the date of apprehension the children were the following ages: Jane, 14¼; Violet, 12½; George, 11; Michael, 11; Reena, 8¾; and Adam, 5¾ (the “children”). [ 3 ] After a three week trial in the Court of Queen’s Bench, the children were all found in need of protection under s. 11 of the Act . Jane was placed in the custody of the Minister of Social Services [Minister] under s. 37(3) of the Act until she attained the age of 18 years.

The other children were all placed in the permanent care of the Minister under s. 37(2) of the Act . Ramona appeals the Queen’s Bench decision on the basis that the children should not have been found to be in need of protection and that the orders under ss. 37(2) and (3) were made in error. She also seeks to adduce further evidence on the appeal pursuant to s. 63(4) of the Act . [ 4 ] A significant aspect of this appeal is that the children were apprehended in June 2010 and the trial decision was rendered in January 2013.

By the time this appeal was heard in October 2014, the children had been out of the home of Ramona for nearly four and one-half years except for Jane who returned to live with her after she became an adult. [ 5 ] For the reasons hereinafter set forth, the appeal is dismissed respecting all the children except Jane. With respect to Jane the appeal is allowed but as I will explain because she is now 18, no further order need be made. II. Facts and Background [ 6 ] The detailed facts and background are set forth in the trial decision which is cited at 2013 SKQB 9 . However, a short

summary is in order. [ 7 ] Ramona is the biological mother of Jane, George, Reena and Adam, and is the legal guardian of Violet and Michael. Ramona is also the biological mother of K.C. who was 19 at the date of the trial. This child is not the subject of these proceedings but played a

part in events leading up to them. [ 8 ] The involvement of the Ministry of Social Services [MSS] with Ramona began in 1993. Between that year and 2010 when the children were first apprehended and a temporary six month protection order for the children was issued with the consent of Ramona, there was periodic involvement by MSS with Ramona and her family. MSS conducted a number of investigations during that time respecting Ramona and her care of the children usually on the complaint of neighbours, friends and acquaintances of Ramona as well as the teachers of the children.

The complaints included allegations that the children were unclean and living in an unclean home, unfed, suffered overcrowding at home, were sexually abused and that Ramona was continuing to expose the children to sexual abuse. On some occasions the complaints were determined to be unfounded, and on others, for example, lack of cleanliness and sexual abuse, they were determined to be well founded. [ 9 ] At least four males in Ramona’s life, including her husband, B.W., were convicted of sexually assaulting Ramona’s older stepchildren and other children known to the family.

Ramona conceded at trial that the girls, Violet and Reena, had been subjected to sexual abuse and that they were in need of protection.

[ 10 ] Despite the various complaints and MSS investigations, the children were not apprehended until 2010. However, up to that time Ramona had entered into five or more parental services agreements with MSS and had a parent aide assist her several times. In 2008, with the assistance of MSS, a plan was put into place with Ramona related to keeping the children safe from sexual abuse. [ 11 ] In June 2010 Ramona’s oldest daughter, K.C., told a community member that her younger sisters were being abused by M.U., the brother-in-law of Ramona, and that Ramona refused to do anything about it.

That resulted in the initial apprehension of the children by MSS and their placement in various foster homes. Ramona thereafter consented to a six-month temporary wardship order in October 2010. [ 12 ] Thereafter, MSS continued to work with Ramona to formulate a plan to allow the children to return to her. To that end, MSS retained Dr. Brian Chartier, a registered psychologist, who interviewed Ramona and administered various psychological tests to her. He completed a detailed parenting capacity assessment of Ramona in October 2010. Dr.

Chartier’s report sets out 43 negative indicators of Ramona’s capacity to parent versus 7 positive indicators. He ultimately recommended the children be returned to her but listed a large number of preconditions to their return.

The report set out a series of steps to be taken by Ramona for self-awareness, a treatment plan, workshops, training in relation to a parenting plan, as well as a safety plan for the children. [ 13 ] The report stated in several places that if Ramona could or would not follow through on the recommendations for steps to improve her parenting abilities then MSS should seek a permanent order for the children. Dr. Chartier indicated that if the children were to be returned to Ramona, substantial progress should have been made in the treatment and parenting plans.

As time went on, MSS and Ramona could not agree on a mutually acceptable plan for the return of the children, and in April 2011 MSS took the view that Ramona was refusing to co-operate with Dr. Chartier’s recommendations and determined to obtain a permanent order for the children. [ 14 ] Post-apprehension the foster parents with whom the children were placed observed sexual touching and acting out, and sexualized behaviour between some siblings.

This was of such a concern to MSS that the boys and girls were eventually placed in different foster homes. [ 15 ] The boys, George, Michael and Adam, live with foster parents who are committed to long-term care of the boys and will facilitate access to Ramona and their siblings. Violet and Reena live with other foster parents who are similarly committed to their long-term care and contact with Ramona and their siblings. At trial, Jane was doing well in a therapeutic foster home and going to school. The children, except for Jane, have been in foster care for over four years. III.

Trial Decision [ 16 ] The trial judge, after reviewing the evidence extensively, determined that the children were in need of protection. In determining this, he placed substantial weight on the evidence of Dr. Chartier and his conclusions: 158 Suffice it to say, compliance by anyone with Dr. Chartier’s recommendations would be daunting. In my view, given Ramona’s experience, education and ability to cope, it would be counterintuitive to expect that she could meet the onerous conditions set out by Dr. Chartier. 159 In his testimony, Dr.

Chartier clearly indicated that he had doubts about Ramona’s ability to sufficiently reform to have care and charge of the children. Nonetheless, he thought he should extend her that chance. 160 In his report, Dr. Chartier details the concerns he has about Ramona’s capacity as a parent. In the

section of the report dealing with the “Evaluation of Parenting Ability”, he provides a

summary of vulnerability factors at page 22. The

section provides:

Summary of Vulnerability Factors. The key issues increasing the children’s vulnerabilities are: various males living in [Ramona’s] home since 2004, [Ramona’s] dependency, [Ramona’s] lack of insight, her difficulty identifying/acknowledging problems, her inclination towards relying on her older children to care for the needs of the younger children, [Ramona’s] tendency to avoid dealing with distressing issues, lack of assertiveness, and placing the children in potentially harmful and unsafe environments despite knowing there were issues.

The factors that could protect or ameliorate these vulnerabilities are not only absent but present further problems. Increasing the children’s vulnerabilities are: [Ramona] being overly attached to her children, not being committed to the physical care of her children, no real sources of social support, and the presence of chronic and significant stressors. [ 17 ] With respect to Jane, who was almost 17 at trial, the trial judge stated: 174 Jane presents a more problematic decision. She is almost 17 years old and is at the age where courts in regular family chambers rarely make custody orders.

Nonetheless, Jane is progressing to obtain her high school diploma (modified program). It is a given that that is a basic necessity in today’s world. 175 Would accommodating Jane’s wishes to return to Ramona’s care place that goal of a high school education in jeopardy? In my view, it would.

176 Ramona has not been equal to the task of shepherding the children to even basic academic success. Her efforts in ensuring that the children are up in the morning, properly fed, dressed and ready for school with lunch in hand have been, to put it at its kindest, unblemished by success.

Additionally, Ramona’s current residence in an isolated hamlet would, in my opinion, not aid Jane’s maturing process and socialization and might also prove problematic for her finishing high school. [ 18 ] The trial judge’s decision concludes: 178 What is clear is that Ramona has an abysmal record of assessing the men in her life or in her home. That lack of sophistication or susceptibility has placed the girls in a position where they have been victims of sexual predation.

Further, as evidenced by the observations of the foster parents after the children had been apprehended, the family dynamic of both the girls and the boys is troubling.

Physical and sexual boundaries in Ramona’s home were clearly unhealthy for the children and, by definition, placed the children at risk. 179 The body of evidence respecting the children’s development at the time of apprehension shows clearly that each was, to some degree, maladaptive to a normal living and social environment. 180 Notwithstanding the above, if proper safety plans are put in effect on a go-forward basis, can the children be spared victimization? Perhaps.

However, the critical element in any plan to return the children to Ramona is Ramona’s own self-awareness and discipline and her ability to apply common sense caution in order to create a tolerable home for the children. 181 In the end, what is best for these children turns upon an examination of the human capital that Ramona brings to the family dynamic. There is no doubt that she loves her children. Similarly, there is no doubt that the children love her.

However, love alone is not enough. 182 The question is: Is Ramona capable of rising to the appropriate level of parental capacity to provide the children with a home that is nurturing and does not place them in need of protection? 183 A study of Ramona’s history with MSS since 1993 would not imbue any reviewer with a significant level of comfort respecting Ramona’s parenting style. Even a cursory examination of the cautions articulated in Dr. Chartier’s report raise serious doubts respecting Ramona’s capacity to parent.

Additionally, the reality is that Ramona would be operating in an environment of poverty and, often as not, social isolation. 184 All of those involved with the children indicate that what each of them requires is a steady, predictable structure in their daily lives and their daily routine. MSS argues that they now have it in their respective foster homes, and they have clearly made great improvements in their ability to function in a normal social and/or school environment.

MSS also submits that it is clear that a predictable structure in their daily routines was completely absent when they were in the care and charge of Ramona. 185 It is fair to opine that a reasonable predictor of the future is what someone has done in the past.

That being the case, serious concerns about Ramona’s capacity to parent abound. 186 I respectfully conclude that no reasonable observer would conclude that placing the children in Ramona’s care would not expose them in some way to real risk. 187 Therefore, without hesitation, I determine that Violet, George, Michael, Reena and Adam are children in need of protection as contemplated by s. 11 (a)(i), (ii), (iii) and (

b) of the Act . 188 I concede that the decision with respect to Jane is more nuanced. Nonetheless, on a balance of probabilities, I conclude that Jane is in need of protection in that her removal from T.W.’s home would place her at risk, particularly insofar as it relates to her completing and obtaining her high school diploma. It will not be long before Jane herself decides where she wishes to live. [ 19 ] The trial judge concluded that all the children were in need of protection and made an order under s. 37(2) placing all the children except Jane under the permanent care of the Minister.

With respect to Jane, he made an order under s. 37(3) placing her in the custody of the Minister until she turned 18 years of age.

IV. Standard of Review [20] The standard of review in this case is not in dispute. Orders made under s. 37 of the Act are to be accorded a high degree ofdeference as such orders are discretionary. See: L.(B.) v Saskatchewan (Ministry of Social Services), 2012 SKCA 38 at para 13, [2012]12 WWR 468: 13 This Court has viewed orders made under s. 37 of the CFSA as discretionary orders which are accorded a high degree ofdeference as stated by Cameron J.A. in W. (C.) v. Saskatchewan (Minister of Social Services) (1990), (SK CA), 25R.F.L. (3d) 308 (Sask.

C.A.) at p. 309: The power afforded a judge by s. 29 of the Act [now s. 37] is essentially a discretionary power, and accordingly its exercise is not to beinterfered with on appeal in the absence of some material failure going to how the power was exercised. It follows that our function, atthe outset at least, is one of review, only, to determine if the trial judge in the exercise of his discretion erred in law, or disregarded oroverlooked some relevant matter, or failed to act judicially. Unless something of that nature is present an appellate court cannot properlyintervene.

With respect to findings of fact, there must be a palpable and overriding error found in the sense that the finding is clearly wrong,unreasonable or unsupported by the evidence before such findings can be set aside (Gallop v Mulatz, 2008 SKCA 29 at para 33, [2008] 5WWR 231). V. Analysis [21] Ramona makes a number of specific arguments that certain factual findings of the trial judge were either unsupported by evidenceor based on irrelevant facts, or the trial judge failed to draw inferences or the proper inferences from relevant facts, and that theseamounted to palpable and overriding errors.

She submits that the trial judge erred in finding the children in need of protection under s.11and that the decision is not in accord with ss. 3 and 4 of the Act. She also argues that the further evidence she proffers should beadmitted. [22] I will address the arguments in turn. I begin with the arguments concerning the trial judge’s handling of the facts. A.

The trial judge made palpable and overriding errors of fact. [23] Ramona argues that the trial judge erred by relying on unsubstantiated incidents from 1993, 1996 and 1998 to ultimately concludethat Ramona had a history with MSS from 1993 for filth and neglect and that this finding played a substantial role in his decision that thechildren were in need of protection.

Ramona argues that accordingly, the trial judge’s conclusion in para. 183 of the decision thatRamona’s history since 1993 would not imbue any reviewer with a significant level of comfort respecting her parenting style cannot besupported on the evidence. She also submits that the trial judge made two factual errors respecting incidents with M.U., who was amember of Ramona’s family, which affect his decision to find the children in need of protection. She argues that all of these errors arepalpable and overriding. (

a) The trial judge erred by referring to a complaint the MSS received in 1993 that Ramona was neglectful of her “children” and sentthem outside without proper clothing. [24] Ramona submits that in 1993 she was only parenting K.C. who was four months old at the time, and that the trial judge’s referenceto children and sending them outside is obviously inaccurate. This may well be true. It is, however, nothing more than that: aninaccuracy. The reference should have been to a “child” and the fact she was “taken” not “sent” outside as the MSS complaint states. [25] A review of the complaints found at AB134-139 shows that the trial judge’s reference is a fair

summary of the complaints. It is nomore than a description of Ramona’s first involvement with MSS. The trial judge does not say that Ramona was thereafter red-flagged asa result of this complaint as Ramona argues. His comment that Ramona stayed on the radar of MSS is a reasonable inference given thesubsequent complaints against Ramona. (

b) The trial judge erred in describing the reason for the February 22, 1996, parental services agreement and was confused about thedate of birth of Ramona’s second child. [26] Paragraphs 14 and 15 of the decision appear to fairly summarize the MSS reports dated February 16, 1996, and March 29, 1996.By March, Ramona had two children: K.C. and Jane. There was no factual error made by the trial judge respecting the children or thereason for the parental services agreement, i.e., that the presence of many pets in the home was unsafe for the children—one of whomhad just been born. (

c) The trial judge inadequately described the investigation regarding the 1998 MSS complaint of lack of cleanliness and neglect. [27] Ramona argues that the trial judge did not refer to an MSS worker’s observation in her report that on a specific occasion thechildren appeared to be well cared for. The fact the trial judge did not mention this aspect of the report is not a reviewable error per se. Atrial judge need not mention every piece of evidence in his decision (R v Kendall (2005), (ON CA), 75 OR (3d) 565(CA) at para 77). This is especially so where, as in this matter, the trial lasts many days and the task of the trial judge is to provide a

comprehensive

summary of the evidence rather than a recitation of all the evidence. Again, the description of this complaint in the decision fairly reflects the content of the MSS report. (

d) Conclusion re: (a)-(c) [ 28 ] As an initial observation, Ramona’s arguments regarding the 1993, 1996 and 1998 complaints refer to the trial judge’s recitation of the evidence rather than to any findings of fact made by the trial judge respecting filth and neglect. Such findings of fact as he did make about this issue are found in para. 176 in relation to getting the children ready for school, and para. 177 where he describes her homemaking skills as somewhere between adequate and awful. He then clearly goes on to state that her homemaking skills were never a sufficient basis for apprehension of the children.

Because he then immediately moves to the issue of the chronic sexual abuse which had occurred and reviews that issue, it may be inferred that Ramona’s homemaking skills, such as he found them, were not the crux of his finding that the children were in need of protection. [ 29 ] The trial judge’s statements in para. 183 are an appropriate inference from the evidence of all the MSS involvement and background up to the trial date, including issues throughout the years regarding sexual abuse, reports of an unkempt home and underfed children in 2002 and 2006, inappropriate winter wear by the children in 2003 and head lice in 2007 and 2008.

There are more examples given by the trial judge but I need not repeat them. [ 30 ] In this context his comments about parenting style refer to a much larger and serious problem than Ramona’s ability to keep a clean and tidy house or ensure the children are properly clothed and fed. Indeed, his reference about Ramona’s incapacity to parent comes after he poses the question whether given Ramona’s abilities as a parent, a proper safety plan can be put in place to spare the children further victimization by sexual predators. This has nothing to do per se with her homemaking skills.

I cannot say that the trial judge’s handling of the 1993, 1996 and 1998 incidents are an error in principle. (

e) The trial judge erred by concluding M.U. was “removed” from the house and gave Ramona no credit for the role she played in protecting the children from M.U. [ 31 ] M.U. is one of the four sexual predators in this case who had access to the children. He is the husband of a close family member. Ramona testified that she did not know that M.U. had been found guilty of sexually assaulting other children before he married into her family. [ 32 ] Ramona argues that the trial judge failed to take into account relevant evidence regarding M.U.’s 2001 sexual assault of T.W. (a child not the subject of this case). This evidence includes: (

i) that M.U. lived hours away from Ramona, (ii) Ramona immediately removed T.W. and other children from M.U. after T.W. reported the abuse, (iii) Ramona immediately took her to the RCMP, and (iv) M.U. turned himself in because Ramona advised she would do it if he did not do so. [ 33 ] The trial judge’s description of this incident and his conclusion that M.U. was “removed” from the house after confessing to sexual abuse is an error, but in our view it has no bearing on his ultimate conclusion under the Act . It is not more than a harmless descriptive error. M.U.’s actions were not trivial.

After the incident Ramona had to take steps to keep the children safe. Those efforts included closely circumscribing M.U.’s access to the children by not allowing M.U. into the house or permitting the children to be in his company. [ 34 ] Whether M.U. had been in the house and had to be removed or his future contact was curtailed, the point is the same. M.U. was yet another person who could not be trusted around the children and with respect to whom vigilance would be required.

MSS had to be able to rely on Ramona to carry through with a plan to protect the children from M.U. not just on the one occasion but for the long term. (

f) The trial judge erred by stating that Ramona exposed the children to M.U. while at Saskatchewan Landing Provincial Park in August 2011 and that this event precipitated MSS seeking permanent orders for the children. [ 35 ] Ramona has demonstrated in her submissions that the children present at the park were not those which are the subject of this case. The MSS decision to seek a permanent order for the children which are the subject of this case took place several months before the incident because MSS believed Ramona was unwilling to work with Dr.

Chartier’s recommendations. [ 36 ] Ramona submits that this fundamental error should result in her appeal being allowed. She states the trial judge formed a very negative view of her such that he was prepared to make a critical—and in her opinion pivotal—error regarding the timing of MSS’s decision to seek a permanent order. She agrees it would have shown a significant error in judgment if she had taken her children on a picnic with M.U.—but this is not, in fact, what happened.

Having acknowledged the trial judge’s error, the issue is what to make of it when considering whether this appeal should be allowed? [ 37 ] The trial judge at T1780-1781 is clearly aware that a decision had been made to seek a permanent order earlier than August. He was aware that up to that time, there was debate within MSS about the appropriateness of seeking such an order. The trial judge at para. 104 correctly notes that such debate and any contemplation of returning the children stopped thereafter. The trial judge’s point is that this incident galvanized MSS to take the position it took at trial.

In this he is not inaccurate. While Ramona’s error in judgment is not as significant as the trial judge found, it is nonetheless an error of judgment of some significance in light of the reasons why the children were apprehended and in light of the abuse to which some of them had been subjected. [ 38 ] It must be noted, however, that while the children were not present on that occasion, Ramona was with her older daughter K.C. and other children. MSS did not accept Ramona’s explanation of why there were children in the presence of M.U.

An MSS employee, Charlene Campbell, testified that Ramona stated to her that she felt that M.U. would not be in a position to abuse the children who were with her at the park because it was a public place. Ms. Campbell testified that she had had at least five to six conversations with Ramona about grooming by perpetrators by that time, but Ramona’s response was that she did nothing to hurt the children. In this context, the incident is significant in that it does not matter which children were present.

It was another example of a pattern in Ramona’s behaviour and mindset which may show that she could not or would not protect the children from sexual predators. In short, apart from an obvious error respecting which children were present with M.U. at the park in August 2011, the trial judge’s understanding of the significance of what was at stake is fairly stated.

[39] In

summary, I cannot say that the trial judge made any palpable and overriding factual errors in his recitation of the evidence orhistory of Ramona’s involvement which would justify intervention. B. The trial judge erred in determining the children were in need of protection. [40] I make the initial observation that Ramona admitted at trial that the two younger girls were in need of protection because of sexualabuse. The trial judge’s decision that the children were in need of protection was based on the children’s past exposure to sexual abuse.This sexual abuse is well detailed in the trial judgment.

The evidence indicated the children, both boys and girls, were maladapted to anormal living and social environment as a result. There were signs of inappropriate sexualized behaviour. [41] The core of the trial judge’s determination that the children were in need of protection is found in para. 178 where the trial judgerefers to Ramona’s failure to properly assess the risk posed by the men in her life. He says: 178 What is clear is that Ramona has an abysmal record of assessing the men in her life or in her home.

That lack of sophistication orsusceptibility has placed the girls in a position where they have been victims of sexual predation. Further, as evidenced by theobservations of the foster parents after the children had been apprehended, the family dynamic of both the girls and the boys is troubling.Physical and sexual boundaries in Ramona’s home were clearly unhealthy for the children and, by definition, placed the children at risk. [42] The trial judge posed the question of whether the children could be spared sexual victimization in the future through a propersafety plan if they were returned to Ramona.

He observed that the success of any such plan depended on her self-awareness, disciplineand ability to apply common sense. The trial judge noted that the cautions articulated in Dr. Chartier’s report raised serious doubts in hismind about Ramona’s capacity to parent to avoid the victimization. He determined that “no reasonable observer would conclude thatplacing the children in Ramona’s care would not expose them in some way to real risk”. This is an appropriate determination based onthe evidence as a whole.

Given the standard of review, he has made no error on the evidence before him that the children are in need ofprotection. [43] This Court must also take into account the four and one-half years that has passed since the children were apprehended. During thistime the children, apart from Jane who returned to live with Ramona on becoming an adult, have been in foster care. The youngest,Adam, has spent nearly half of his life in foster care.

The children’s lives in foster care have been relatively stable and happy and itappears that they have, in this environment, been able to develop, grow and realize some of their personal potential. [44] As a final comment, Jane was, at the date of the hearing of the appeal, 18 years of age. Notwithstanding this fact, Ramona urgesupon the Court that we should not treat the issues with respect to Jane as moot as the trial judge’s errors in relation to her reflect amindset on the part of the judge which is reflective of other errors in the judgment.

While it is arguable that the trial judge erred bymaking an order in relation to Jane, given her age and wishes, we do not agree that these errors have any bearing on the trial judge’sdecision with respect to the other children, which is grounded in his concerns regarding their vulnerability to the sexual predation thatseems to have stalked their lives. C. Should further evidence be admitted? [45] Ramona argues that pursuant to s. 63(4) of the Act further evidence should be admitted about her efforts to develop her parentingskills, and the circumstances and wishes of the children.

She submits a consideration of all the evidence at trial and the further evidencecompels a finding that the children are not in need of protection. MSS also proffers further evidence in response to Ramona’s application. [46] The test respecting admission of further evidence is that outlined in L.(B.) v.

Saskatchewan (Ministry of Social Services), 2012SKCA 38 at paras 70-72, [2012] 12 WWR 468: 70 Given the foregoing, M.(C.) [ (SCC), [1994] 2 S.C.R. 165] is the controlling authority in Saskatchewan on CFSAmatters respecting the threshold for admissibility of further evidence. 71 The test in M.(C.) may be summarized as follows: Further evidence adduced pursuant to s. 63(4) of the CFSA may be admitted if: (

a) The evidence could not have been adduced before; (

b) The evidence is highly relevant in that it enables the court to make a determination on an accurate picture of the situation at hand; (

c) The evidence is potentially decisive as to the child’s best interest; and (

d) The evidence is credible. The overarching principle, however, is that a court has all the necessary authority to receive further evidence in the best interests of thechild.

72 An incidental consideration in this case is the interplay of Rule 59 of The Court of Appeal Rules respecting fresh evidence applications and s. 63(4)(

a) of the CFSA . Although some of the criteria of Rule 59 as set forth in case law are the same as in the C.M. test, the statutory power to consider further evidence on appeal pursuant to the CFSA is arguably not limited by any strictures of Rule 59. [ 47 ] The further evidence of Ramona consists of her affidavit which outlines her efforts to try to meet the recommendations set forth in Dr. Chartier’s report through meetings with her counsellor and through attendance at other programs.

The affidavit also provides details regarding the children’s present lives, activities and wishes, and outlines the supervised access to the children by Ramona since the trial. Pictures of the children and written expressions of their desire to return to their mother are also attached. [ 48 ] MSS argues that the affidavits of Leanne Berger and Lucy Davis should be admitted. Ms. Berger attempts to address the issues set forth in Ramona’s affidavit. She indicates that the children are doing well in their current placements. The affidavit of Ms.

Davis dated April 29, 2014, was originally filed by MSS on the application to perfect the appeal. This affidavit, which Ramona acknowledges would qualify as further evidence, attaches several reports prepared by two Ph.D. psychologists setting out the results of psychological and psychometric assessments done on the children in 2013 and 2014.

The reports paint a picture of the children doing reasonably well in foster care but with some challenges, especially in the case of Violet who has academic, cognitive and emotional challenges. [ 49 ] Having reviewed the further evidence, I conclude that the evidence of Ramona, except for the evidence respecting the wishes of the children and the affidavit of Lucy Davis, has met the four-fold test as outlined earlier given that the best interests of the children guide its admission. The further evidence of Leanne Berger will also be admitted on the basis it meets the test except for para. 12 thereof.

This paragraph deals with the wishes of the children which are contradicted by the evidence of Ramona. The evidence of the wishes of the children cannot be said to be decisive since it is only one factor to be considered, and in this case would, in any event, not be decisive given the evidence as a whole. [ 50 ] I turn then to the issue of whether the further evidence affects the finding that the children are in need of protection. Ramona argues that the trial judge found it impossible to determine whether she would be successful in implementing Dr.

Chartier’s recommendations and that the further evidence now suggests that she can do so and provide a safe home environment. Ramona points out that she has done substantial work to address the concerns in Dr. Chartier’s report and she is now compliant with his recommendations. [ 51 ] While Ramona is to be commended for the work she has done, nothing in the further evidence satisfies me that the decision of the trial judge was or is now incorrect. The trial judge did not say that he found it impossible to determine if Ramona would be successful in implementing Dr. Chartier’s recommendations.

Rather, based on the evidence as a whole, he concluded that it was unlikely. This was a reasonable and appropriate conclusion on the evidence before him. While I am certain that Ramona has only the best intentions, loves the children and is making some progress to understand and implement better parenting skills, I see nothing in the further evidence which would drive a different conclusion than that of the trial judge.

Put another way, I am not satisfied, even with the further evidence, that it would be in the children’s best interests if they were returned to her and they would not be at risk in the same ways as in the past. Accordingly, given the standard of review there is no basis to interfere with the trial judge’s finding that the children are in need of protection in light of the further evidence. D. The trial judge’s orders under s. 37 were inconsistent with ss. 3 and 4 of the Act . [ 52 ] The trial judge’s conclusion that the children were in need of protection under s. 11(a)(i), (ii), (iii) and (

b) of the Act fully takes into consideration ss. 3 and 4 of the Act . As well, apart from Jane, the trial judge was alive to the best interests of the children as mandated by s. 37(4) and informed by s. 4 as I will discuss further. [ 53 ] With respect to Jane, the appropriate order should have been under s. 37(1)(

a) which allows a child in need of protection to be returned to the parent. I say this for a number of reasons. Jane wanted to return to her mother. Jane was significantly older than the other children; one month shy of 17 years of age by the time the trial decision was issued. The trial judge’s concerns with respect to Jane’s schooling if she returned to live with Ramona would be mitigated by the fact that Jane had, while in foster care, shown a commitment to attend school.

Moreover, while Ramona might not have been able to be supportive of six children at the same time given her abilities, it would be a fair inference that she might well have been capable of reasonably supporting the schooling for one 17-year-old daughter living with her. [ 54 ] With respect to the other children, the orders made by the trial judge were appropriate. The trial judge extensively reviewed the evidence, especially the evidence respecting the circumstances and needs of the children. He considered the children’s relationship with Ramona which he described as loving and caring.

He considered the children’s physical, mental and emotional development and their needs in that respect. He considered the home environment which could be provided for the children by Ramona and by the MSS foster parent given the emotional, academic and other challenges facing the children. [ 55 ] That said, in my view, attention must be paid in this case to the spirit of s. 3 of the Act in respect of promoting the well-being of the children in relation to their family, even where protection orders have been made.

The decision of the trial judge posited that MSS would continue to provide Ramona access to the children notwithstanding that her parental rights may have been terminated. The trial judge states: 173 MSS maintains that with respect to all the children, it will take steps to ensure their continued access to Ramona as well as their siblings. MSS indicates that it is of the view that having access to their mother and their siblings is important for the emotional well- being of the children.

It is appropriate for me to note that the commitment by MSS to continue access to Ramona will, to a great extent, underpin my conclusion as to the action to be taken under s. 37. [ 56 ] I accept the further evidence of Ramona regarding the access times which she has had with the children since their apprehension. I view with some consternation the fact that Ramona has received only limited access to the children during their apprehension. The trial judge specifically found that it was important to the emotional well-being of the children to have contact with Ramona. I question

whether this aspect of the trial judge’s decision can be said to be observed given the few and infrequent visits allowed to Ramona. It causes concern as to what efforts will be made to carry out this aspect of the decision once the children are permanently in the care of the Minister and may be adopted. Since a substantial and real continued connection between Ramona and the children underpin the trial judge’s orders, it is important that this “support” be generously interpreted conscious, of course, of the best interests of the children. VI.

Conclusion [ 57 ] The appeal of Ramona in respect of Jane is allowed and the order of the trial judge under s. 37(3) of the Act regarding Jane is set aside. However, no order under s. 37(1)(

a) is necessary with respect to Jane given her age. The appeal with respect to the other children is dismissed. There will be no order as to costs. [ 58 ] The Court would like to thank counsel for the quality of their submissions. In particular, the Court would like to thank Ms. Murray for taking this appeal, when it appeared unlikely that Ramona would be able to obtain representation. DATED at the City of Regina, in the Province of Saskatchewan, this 23 rd day of December, A.D. 2014. “Ottenbreit J.A.” Ottenbreit J.A. I concur “Jackson J.A.” Jackson J.A. I concur “Herauf J.A.” Herauf J.A.