A.M. v Ministry of Social Services, 2020 SKCA 114

Court of Appeal for Saskatchewan Docket: CACV3438 Citation: A.M. v Ministry of Social Services, 2020 SKCA 114 Date: 2020-10-06 Between: A.M. and V.P. Appellant And Ministry of Social Services Respondent Before: Leurer, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Tholl On appeal from: FSM 15 of 1997, Saskatoon Appeal heard: August 10, 2020 Counsel: Jane Basinski for the Appellants Leslie Belloc-Pinder, Q.C. for the Respondent Christine Hansen Chad for the Children, J.R.P. and H.K.P. Dana Brûlé for the Attorney General for Saskatchewan Kalmakoff J.A. I. Introduction [ 1 ] This appeal concerns a proceeding under The Child and Family Services Act, SS 1989-90, c C-7.2 [ Act ]. [ 2 ] In July of 2011, two of the appellants’ children ([J.P.] and [H.P.]) were apprehended by the Ministry of Social Services [Ministry].

At the time, the appellants, A.M. and V.P. were struggling with drug and alcohol addiction.

Violence was a problem in the home and V.P. had frequent brushes with the criminal justice system. [ 3 ] In June of 2013, a Court of Queen’s Bench judge determined that J.P. and H.P. were children in need of protection within the meaning of the Act and ordered, pursuant to s. 37(2), that they be committed permanently to the care of the Minister of Social Services ( Re: J.D.R.M., J.R.P. and H.K.P. (12 June 2013), Saskatoon, FSM No. 15 of 1997 [ Committal Decision ]). [ 4 ] In April of 2016, the appellants applied to a judge of the Court of Queen’s Bench, under s. 39 of the Act , to vary or terminate the permanent committal order .

The trial of the variation application was heard in March and May of 2017. Nearly two years passed before the judge who heard the application rendered a decision dismissing it ( Re: J.R.P. and H.K.P. (17 May 2019) Saskatoon, FSM No. 15 of 1997 [ Variation Decision ]).

The variation judge, relying in part on the recommendation of the Elders who participated in an Opikinawasowin [1] [OPIK], concluded the appellants had failed to demonstrate either that there had been a material change in circumstances since the Committal Decision, or that the best interests of J.P. and H.P. best interests would be served by varying or terminating the permanent committal order . [ 5 ] The appellants appeal from the Variation Decision .

They contend that the variation judge made a number of errors in his assessment of the evidence, erred in determining there had not been a material change in circumstances and erred in his assessment of J.P. and H.P.’s best interests. They also argue that, by taking nearly two years to render a decision, the variation judge caused delay that violated their rights under s. 7 of the Charter of Rights and Freedoms [ Charter ] . The appellants ask this Court to set aside the Variation Decision and order that J.P. and H.P. be returned to their care.

They also seek a declaration that their s. 7 rights were violated by the delay and ask this Court to establish detailed timelines to govern the conduct of proceedings under the Act in the lower courts. [ 6 ] The Ministry opposes the appeal. It contends that the variation judge made no reversible errors and that the appellants were not prejudiced by the judicial deliberation delay. Notably, J.P. and H.P., who were represented by counsel at trial and on appeal, also oppose the appeal.

They wish to remain with, and be adopted by, the foster parent with whom they have lived since 2011. [ 7 ] For the reasons that follow, I would dismiss the appeal. II. background A. The appellants, the children, and the involvement of the Ministry [ 8 ] A.M. is a member of the Yellow Quill First Nation. As a child she spent time in foster care. Her parents struggled with alcohol addiction and her father was physically abusive to her mother. She attended residential school as a young child and was sexually abused while attending that school.

[ 9 ] A.M. became pregnant when she was 14 years old. She gave birth to her first child, S.L.B., in 1996. For a number of reasons, A.M. was not in a strong position to be a parent. She, herself, had just turned 15. She had no financial resources of her own. She had little support from her family. S.L.B.’s biological father was incarcerated. Between February of 1997 and March of 1999, S.L.B. was apprehended by the Ministry on a number of occasions. [ 10 ] In 2000, A.M. gave birth to her second child, S.H.B.

A.M. continued to struggle with alcohol addiction and, as a result, S.L.B. was apprehended again while A.M. was pregnant with S.H.B. A.M. made several unsuccessful attempts at treatment for her addictions. She also incurred a number of criminal charges. The Ministry placed A.M.’s children with her mother for a period of time, but they eventually had to be removed from that home as well. [ 11 ] In late 2002, S.L.B. and S.H.B. were placed in the home of B.B., a paternal great aunt. Throughout 2003, A.M. continued to struggle with alcohol addiction and failed to comply with programming.

She was eventually charged with armed robbery and assault, as a result of which she was incarcerated. In 2004, A.M.’s cycle of relapse and rehabilitation continued. S.L.B. and S.H.B. remained in care, under a court order, on an indefinite basis. [ 12 ] In 2005, A.M. began her relationship with V.P. [ 13 ] V.P. is also a member of the Yellow Quill First Nation. He, too, had a difficult upbringing. His biological father died when he was two years old. He lived with his paternal grandparents until he was five, then with his mother and stepfather after that.

His grandparents struggled with alcohol addiction and his mother and stepfather physically abused him. He spent time in the foster care system as a child. He went to a residential school for his secondary education, where he also suffered physical and sexual abuse. As a young man, V.P. amassed a significant criminal record, primarily for drinking and driving, property crimes, and offences against the administration of justice. He spent time in jail. [ 14 ] Despite all of this, the appellants’ relationship began on a positive note. Throughout 2005, they attempted to make changes for the better.

With the help of a counsellor, they achieved a period of sobriety. By the fall of that year, they had succeeded in having S.L.B. and S.H.B. returned to their care. They soon added two more children to their growing family: a daughter, J.M., who was born in January of 2006 and a son, J.P., born in December of 2006. [ 15 ] Problems resurfaced for the appellants in the summer of 2008. A.M. reported to Ministry workers that she was feeling overwhelmed. S.L.B., then aged 12, was engaging in high-risk behaviours, including drinking, using drugs and running away from home.

S.L.B. and S.H.B. also reported that V.P. had been physically violent with A.M. In October of 2008, V.P. was charged with assaulting A.M., who was pregnant at the time, expecting her fifth child. [ 16 ] A.M. left the home after this assault. J.M. and J.P. remained in V.P.’s care. S.H.B. was placed with B.B. (a paternal great aunt), and S.L.B. moved in with her paternal grandfather. The Ministry worked with the appellants to try to provide support, in the form of parent aides and counselling. [ 17 ] The appellants resumed cohabitation a short time later.

Both had taken domestic violence counselling, and arrangements were made for S.L.B. to go to a youth facility that dealt with addictions and behavioural issues. [ 18 ] In January of 2009, H.P. was born. [ 19 ] The appellants were married on August 22, 2009. Unfortunately, a downward spiral soon began, as they both returned to alcohol and drug abuse. Over the next few years, they drank excessively and fought frequently, sometimes violently. Both were charged with assaulting each other at various points. V.P. also faced other criminal charges and experienced periods of incarceration.

The Ministry investigated and intervened on occasion, apprehending the children and placing them with various family members. Ministry workers also tried to assist the appellants in accessing treatment and support, but they offered little cooperation in return. [ 20 ] By April of 2011, all of the appellants’ children had once again been apprehended. The Ministry obtained a long-term order for S.L.B. S.H.B. was placed with B.B. [ 21 ] J.M., J.P. and H.P. were placed with V.P.’s sister, C.P.

This arrangement did not last long as C.P., who also had six of her own children and a grandchild in her care, quickly became overburdened. She also reported to Ministry workers that the appellants were harassing her. The Ministry apprehended J.M., J.P. and H.P. from her care in July of 2011. [ 22 ] Shortly after this apprehension, J.M. was placed with B.B. J.P. and H.P. were placed in the foster home of D.K., where they have remained ever since. B. The Committal Decision [ 23 ] The appellants continued their downward spiral in 2011 and 2012.

In the spring of 2013, the Ministry applied for an order permanently committing J.P. and H.P. to the Ministry’s care and an order placing J.M. with B.B., as a person of sufficient interest, indefinitely. [ 24 ] The trial of the Ministry’s application proceeded before Wilkinson J. in May of 2013. At the time of the trial, V.P. was incarcerated. He did not attend or participate in the trial. A.M., who was once again pregnant, was also in a dark place. She was regularly using illegal drugs and living a high-risk lifestyle.

A.M. attended the trial for part of the first day but left and did not return. [ 25 ] Justice Wilkinson granted the Ministry’s application. Finding that all three children were “children in need of protection” within the meaning of the Act , she made an order permanently committing J.P. and H.P. to the Ministry’s care and an order committing J.M. to the care of B.B. indefinitely. [ 26 ] In the Committal Decision, Wilkinson J. reviewed, in considerable detail, the history that led her to that conclusion. She

recounted several instances of alcohol and drug-fuelled domestic disharmony between the appellants, some of which was violent. Justice Wilkinson also detailed the evidence of the appellants’ neglect of their children and their inability or unwillingness to meaningfully engage with the Ministry’s efforts to assist in their rehabilitation.

She also noted how J.P. and H.P. had flourished in their foster placement with D.K. and that they appeared to experience great stress at even the thought of visiting the appellants. [ 27 ] Ultimately, Wilkinson J. concluded that it would be in J.P. and H.P.’s best interest to be committed permanently to the custody of the Ministry. She said: [76] The children have suffered needlessly in parental care. They have witnessed violence of the worst kind. Nightmares, incontinence and a deep sense of betrayal are the lasting remnants of that unhappy experiment.

The parents were given more opportunity than they ever deserved. … [81] If a return to parental care is to be considered, the Court must be satisfied that the parents offer a reasonable prospect of change, within a reasonable length of time, and, with a reasonable use of resources, if needed. This has not been demonstrated, and to have attempted to do so would have been an exercise in futility.

The parents have been given every opportunity over an extended period of time, and have squandered most of those opportunities… [ 28 ] Accordingly, she found that nothing short of a permanent committal, under s. 37(2), would be appropriate for J.P. and H.P. She made the corresponding order, but provided that the appellants would be permitted to visit them at least twice per month. C.

The period following the Committal Decision [ 29 ] In the interval between when the trial concluded and when Wilkinson J. rendered the Committal Decision , A.M. gave birth to her sixth child, V.A.P., in May of 2013. [2] [ 30 ] While pregnant with V.A.P., A.M. was regularly using illegal drugs. As a result, the Ministry apprehended V.A.P. as soon as she was born. The Ministry quickly secured a temporary wardship order and, a short time later, V.A.P. was placed in the home of D.K. along with her brothers J.P. and H.P. V.A.P. has remained in D.K.’s home almost exclusively since that time.

She has never lived in the appellants’ care and, as will be discussed shortly, the appellants consented to an order permanently committing her to the custody of the Ministry in June of 2016. [ 31 ] In September of 2013, V.P. was released from jail. He and A.M. resumed their relationship. Both were still harmfully involved with substances. V.P. was drinking. A.M. was regularly using dilaudid. [ 32 ] Toward the end of that year, A.M. once again became pregnant. It was at this point that she and V.P. again began to make some positive changes.

They started the methadone program and began seeing a counsellor through the Saskatoon Tribal Council. They attended Sakwatamo Lodge, a treatment centre on the James Smith First Nation. The Sakwatamo program was not a complete success, as they were asked to leave the treatment facility because A.M. would not follow the rules. The appellants made other efforts, though. V.P. took mental health and addictions counselling. A.M. took a program called “Healthy Mother, Healthy Baby”. They both attended parenting classes and received addictions programming through the Metis Addiction Council of Saskatchewan Inc.

While this was not a seamless process – there were setbacks and slip-ups – the appellants were, unquestionably, making an effort to improve their lives. [ 33 ] The appellants had also reconnected with a former landlord who provided them with a house to rent. This person also found employment for V.P. [ 34 ] By May of 2014, the Ministry had started the process required for D.K. to adopt J.P. and H.P. under the permanent committal order. Notwithstanding that, the appellants continued to work with support workers from the Saskatoon Tribal Council to try to get their children returned to their care.

The support workers noted that the appellants were making progress. V.P. completed an anger management program. He and A.M. were looking into cultural programming. There were discussions between the appellants’ supports and the Ministry about the possibility of having the children returned to their care. The Ministry took the view that an important cog in that wheel would be reunification with V.A.P., who had never been in the appellants’ care to that point. [ 35 ] On June 24, 2014, the Ministry applied for an order extending V.A.P.’s short-term placement order.

Justice Wilson granted the extension for a period of four months, with a number of conditions, including that the appellants “attend and participate in an OPIK and follow through with any recommendations received as a result of their participation”, and that they attend domestic violence programming, actively participate in case planning with the Ministry, actively participate in addictions programming, and have supervised visits with V.A.P. [ 36 ] In July of 2014, A.M. gave birth to her seventh child, R.P. V.P. is R.P.’s father.

Although R.P. was apprehended at birth due to the fact that A.M. had admitted to using illegal drugs in the early stage of her pregnancy, the Ministry quickly returned her to the appellants’ care. The appellants signed a Parental Services Agreement with the Ministry, in which they agreed to work with an elder and continue addictions counselling. [ 37 ] Pursuant to Wilson J.’s June 24, 2014, order, the appellants were also having regular visits with J.P., H.P. and V.A.P.

The visits went well, according to those who observed them, but were upsetting for the children. [ 38 ] The Ministry and the Saskatoon Tribal Council continued to work with the appellants in an effort to reunite their family. In September of 2014, an OPIK was convened, pursuant to Wilson J.’s order. At the conclusion of the week-long OPIK process, the Elders detailed a number of problem areas that the appellants would need to address before the return of the children to their care could be supported. The key areas of concern related to addictions and domestic violence. The Elders recommended that: (

a) A.M. attend family counselling with her children;

(

b) A.M. attend in-patient treatment for addictions; (

c) V.P. attend similar treatment at the same time, but not with A.M.; (

d) Both V.P. and A.M. take Alternatives to Violence programming to address concerns regarding domestic violence; (

e) V.P. and A.M. work with an elder; (

f) V.P. participate in a parenting program; and (

g) V.P. and A.M. both take the “Inner Child” program. [ 39 ] The appellants began to take some of the programming recommended by the OPIK. This included an Inner Child program, facilitated by an elder named Peter Nippi. They also continued visits with J.P., H.P. and V.A.P, although the visits with V.A.P. were becoming increasingly difficult, as she was quite attached to D.K. and would become very upset when left with the appellants.

By February 15, 2015, the appellants had indicated that they no longer wanted to have visits with V.A.P. [ 40 ] A six-month review of the OPIK took place from March 30 to April 2, 2015. Following that review, the Elders issued a second report. It was not positive for the appellants. The Elders noted the lack of progress the appellants had made in addressing their personal issues. They also expressed concern that the appellants were still involved in a violent relationship and that the children would experience and witness such violence if returned to their home.

In the end, the Elders did not support the return of J.P., H.P. and V.A.P. to the care of the appellants. [ 41 ] In July of 2015, A.M.’s eighth child, L.P. was born. [ 42 ] After the Elders provided their recommendations from the OPIK review, the Ministry resumed the process of placing J.P. and H.P. for adoption.

D.K. applied, and was approved, to adopt them. [ 43 ] In April of 2016, before the adoption placement process could be completed, the appellants brought an application to vary the original order from the Committal Decision , on the basis that there had been a material change in circumstances “such that … [A.M.] and … [V.P.] have completed programming for addictions and domestic violence, are clean and sober, have been and continue to be obtaining individual and couples counselling, and reside together in a stable home with two of their other young children”. [ 44 ] The appellants’ variation application sought only the return of J.P. and H.P.

It made no mention of V.A.P. In fact, on June 14, 2016, the appellants consented to an order permanently committing V.A.P. to the custody of the Ministry. [ 45 ] In August of 2016, the appellants also applied to vary the Committal Decision as it related to J.M.’s indefinite placement with B.B. On February 17, 2017, all parties consented to this portion of the order being varied and J.M. returned to live with the appellants. [ 46 ] This left only the application to vary the Committal Decision as it related to J.P. and H.P. D.

The variation application [ 47 ] The trial of the variation application took place in March and May of 2017. The appellants both testified at the trial. They also called a number of witnesses in support of their application, including Wendy Jacklin (an outreach worker employed by Saskatoon Health Region) and Tasha Mulhall (a family support worker employed by the Saskatoon Tribal Council). These witnesses gave testimony that was generally favourable to the appellants’ position. Both Ms. Jacklin and Ms.

Mulhall felt that the appellants were trying to follow the recommendations made by the OPIK and make the positive changes necessary to be good parents.

They also recounted having observed positive and appropriate interaction between the appellants and their children. [ 48 ] The Ministry also called a number of witnesses at trial, including Cheryl Vermette (the supervisor of the Saskatoon Child Protection Unit at the relevant time), Elsie Sanderson (an elder who participated in the 2015 OPIK review), Dawn Olivier and Lauren Hopper (child protection workers who worked directly with J.P. and H.P.), Janessa Baier (an assistant supervisor in the Ministry ongoing protection unit who was tasked with preparing a protection assessment), and Lillian Nakrayko (a counsellor who worked with J.P. and H.P.).

The Ministry also introduced various reports prepared by or collected by the Ministry, and had the witnesses testify about the contents of those documents. The Ministry also called D.K., the foster parent with whom J.P. and H.P. had lived since 2011. [ 49 ] Evidence was heard over the course of five days. Closing submissions were made on the last day of testimony, May 19, 2017. The variation judge reserved his decision and delivered written reasons for judgment on May 17, 2019. E. The Variation Decision [ 50 ] The variation judge began his decision by reviewing the “background facts”.

He recounted much of the history that preceded the Committal Decision. As part of that recitation of facts, he observed that “[i]n February 2013, V.P. was arrested for assaulting a cab driver. He was using cocaine at the time. He pled guilty and was sentenced to jail” ( Variation Decision at para 27). The variation judge also noted that, during the 2013 trial, “[V.P.] was still incarcerated and played no

part in the trial” and that A.M. attended for part of the first morning “but left shortly thereafter, without explanation, and did not return” (at para 28). [ 51 ] The variation judge then reviewed the evidence regarding what had occurred between June of 2013 and the variation application. He cited the recommendations contained in the OPIK report and reviewed the appellants’ response to those recommendations. He also referenced the OPIK review that occurred in the spring of 2015, and noted: [45] The OPIK review occurred from March 30 to April 2, 2015.

The Elders on this OPIK were Elsie Sanderson, Georgina Musqua, Isabelle Impey and a male Elder whose name was not in evidence. Peter Nippi did not sit on this OPIK as an Elder, however, he did appear

and speak about his involvement with [V.P.] and [A.M.] in his program. [46] During the OPIK, there was a verbal and physical incident between [V.P.] and [A.M.] in the lobby of the hotel where the OPIKwas taking place. As a result of the incident, [V.P.] and [A.M.] were asked to leave the hotel. Ms. Vermette attended and was able toconvince the hotel to let them remain there until later in the day. [47] In addition to this altercation, [V.P.] got into a confrontation with [B.B.]. He had asked that B.B not be present at the hotel,however, she had to bring [J.M] to speak to the Elders.

When she brought [J.M.] to the room in which the OPIK was taking place, therewas an incident between [V.P.] and her. After this incident, everyone was distraught, including the Elders. [48] At the end of the OPIK review, the Elders issued another report. The domestic violence, addictions issues, the failure to maintain astable environment for the children and the incident with [B.B.] led the Elders to conclude that reunification was not possible. [49] After this OPIK review, the Ministry workers spoke to [J.P. and H.P.].

The children did not want to continue visits with [V.P.] and[A.M.], they did not want to return to their care and they wanted to be adopted, along with [V.A.P.], by their foster mother. [52] The variation judge also made reference to an incident that led to S.H.B. leaving the appellants’ home. He described it as oneduring which V.P. and S.H.B. had gotten into an argument and V.P. “assaulted S.H.B. to get her out of the bedroom” (at para 56). [53] The variation judge then turned to his analysis.

He noted that the determination of the application turned on the criteria set outin s. 39(1) of the Act, which required him to consider two questions: [61] … (

a) Has there been a change in circumstances since the order of Wilkinson J. made June 12, 2013, following trial? (

b) If there has been a change in circumstances, is it in the best interests of [J.P. and H.P.] to vary the order? [54] He identified the starting point in his analysis as being the Committal Decision, recognizing that his focus should be on whathad occurred since that time. He observed the onus that the appellants bore in advancing the application and recognized the standard theywould be required to meet in order to succeed.

In that regard, the variation judge wrote: [69] The party applying to vary an order bears the onus of establishing, on a balance of probabilities, the threshold requirement ofchange in circumstances since the date of the judgment. Here, that onus falls to [V.P.] and [A.M.]. If the threshold is not met, that ends thematter. If the threshold is met, I move on to consider the best interests of [J.P. and H.P.]. [55] The variation judge next reviewed the jurisprudence regarding the definition of “change in circumstances”.

He referred to theSupreme Court of Canada’s decision in Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordon], and reminded himself ofthe importance the Act places on preserving the family unit, to the extent that can be accomplished in conjunction with the children’s bestinterests. [56] After doing this, the variation judge turned to a consideration of what changes had taken place since the Committal Decisionwas made.

He noted there was “no evidence that there has been a change in the condition, means, needs or circumstances of [J.P. andH.P.] or that their needs are not being met in the permanent care of the Ministry” (at para 78). As such, he determined that his focusshould be on whether there had been a material change in the appellants’ ability to parent and to meet J.P. and H.P.’s needs. In that respect,he said: [81] The focus of [V.P.] and [A.M.]’s argument was really that their ability to parent has changed since Wilkinson J. rendered herdecision. But as McLachlin J. said in Gordon, change alone is not enough.

The change must have altered the ability of [V.P.] and [A.M.] tomeet the children’s needs in a fundamental way. In her judgment Wilkinson J. found that [V.P.] and [A.M.] were not meeting thechildren’s needs as a result of their alcohol and drug abuse, and domestic violence. So, the question really is, to what extent have [V.P.]and [A.M.] addressed these concerns such that they are now able to parent [J.P. and H.P.]? [82] There is no question that [V.P.] and [A.M.] have changed since the trial in 2013. They have re-established their relationship, hadtwo more children and got [J.M.] back in their care.

They took some programming and counselling. They established some supports. Ms.Vermette recognized these changes in 2014 and given how well visits were going with [J.M., J.P., H.P. and V.A.P.], decided to give thefamily an opportunity at reunification -- this despite that [J.P. and H.P.] had already been permanently committed to the Ministry’s care. [83] The majority of the changes that [V.P.] and [A.M.] made in their lives were made prior to their first OPIK, but they were stillhaving some problems.

As [V.P.] admitted in his testimony, there were some “slips’’ along the way and he and [A.M.] were still usingdrugs. They went for inpatient addictions treatment at Sakwatamo Lodge, but after two weeks were asked to leave because [A.M.] was notfollowing the rules at the Centre. [84] At the first OPIK in September 2014, the Elders were made aware of all the changes that [V.P.] and [A.M.] had made in theirlives. But despite these changes, the Elders did not recommend that they be reunited with their children. The Elders determined that therewere still a number of areas that [A.M.] and [V.P.] needed to work on.

For example, they wanted [V.P.] and [A.M.] to take responsibilityfor the programs and counselling they required to show that they were serious about reunifying their family. Even with the work they haddone to date, the Elders felt that addictions and domestic violence were still big issues for [V.P] and [A.M.]. In particular, they wereconcerned that [V.P.] had a bad temper and blamed others for things.

The Elders recommended that [A.M.] attend inpatient familytreatment with the children and begin individual counselling, and that Vern attend inpatient treatment separate from [A.M.], beginindividual counselling and take parenting classes. The Elders wanted [A.M.] and [V.P.], together, to take an Alternatives to Violenceprogram, begin working with an Elder and take couples counselling. [85] Unfortunately, [V.P.] and [A.M.] did not follow through with all of these recommendations. They took a program called “InnerChild” from Elder Peter Nippi.

The program was an intense review of their lives with a view to helping them become better parents. But at

the end of the program, Elder Nippi expressed concern about [V.P]’s ability to accept responsibility for himself and about him blaming everyone else. [86] [V.P.] and [A.M.] continued with the counselling they had been receiving prior to the first OPIK and [V.P.] attended MACSI inpatient addictions programming. [V.P.] thought he had attended parenting classes, but he could not recall when or where he did these classes. I am not convinced on the evidence that he took any parenting classes after the first OPIK. [87] [A.M.] did not take inpatient treatment with the children.

Her and [V.P.] did not take couples counselling except to the extent of what they were discussing in Peter Nippi’s program. They did not take the Alternatives to Violence program, as apparently they required a court order to be involved in it. Interestingly, they did not take any other domestic violence programming even though this was one of their main issues in relation to their ability to parent. [88] To make matters worse, in late 2014, [V.P.] was charged with assaulting [A.M.]. She complained that he pushed and choked her.

She later denied that he choked her but continued to maintain that he pushed her. [V.P.] denied the incident but there is no evidence as to whether the charges were ever dropped. [ 57 ] The variation judge also made reference to an incident that occurred at the OPIK review in the spring of 2015: [91] What [V.P.] and [A.M.] had and had not done was brought to the Elders’ attention at the OPIK review held at the beginning of April 2015. During the review, [V.P.] and [A.M.] had a verbal and physical altercation in the hotel lobby that resulted in the hotel evicting them.

Then [V.P.] got into a confrontation with B.B when she brought [J.M.] to the hotel to take

part in the OPIK. Not surprisingly, after meeting with the parties, their children and their supports, the Elders were not satisfied that [V.P.] and [A.M.] had dealt with their problems. In their report they said: ... This week. however, the Elders were disheartened to find that [A.M.] and [V.P.] had not taken serious steps to address some of the significant issues keeping them from parenting, and had not taken advantage of the help that was offered to them through various agencies end programming.

The Elders are concerned that [A.M.] and [V.P.] are still in a violent relationship and are not confident that the children would not experience or witness this should they return home . (Emphasis in original) [ 58 ] The variation judge acknowledged that the appellants had made significant progress in their individual battles with addiction but he remained concerned that they had not addressed the issue of violence within their home.

In particular, he noted that V.P. had reportedly been involved in a number of violent incidents between October of 2014 and the trial of the variation application and that he either denied, or refused to take responsibility, for his role in them.

The variation judge went on to conclude that, despite the positive changes the appellants had made, domestic violence remained a concern that had not been addressed to a degree that altered their “inability to meet [J.P. and H.P.]’s needs” and, as such, there had been “no change in circumstances that would justify a variation of Wilkinson J.’s 2013 order” (at para 101). [ 59 ] Having reached this conclusion, the variation judge went on to examine the question of whether variation of the order would be in J.P. and H.P.’s best interests.

He began this portion of his analysis by citing s. 4 of the Act and acknowledging the need to consider all the factors listed in that section. [ 60 ] He then observed the fact that J.P., H.P. and V.A.P. had lived with D.K. for most of their lives and had developed a strong familial bond with D.K. that they did not appear to have with their biological parents. He said: [104] In this case, [J.P. and H.P.] have a very close connection with their foster mother, [D.K.], her fiancé and her extended family. As at the date of trial, [J.P. and H.P.] had been in [D.K.]’s care for some six years. They call her “mom”.

Her fiancé moved into her home in April 2017. When they got engaged, the boys began calling him “dad”. They call her parents “grandma” and “grandpa”. Her father sees them five to six times per week and they get along great. [105] [J.P. and H.P.] also have a very close relationship with their sister, [V.A.P], who has been in [D.K.]’s care since she was born. [V.A.P.] was four years old at the end of the trial. [J.P. and H.P.] are bonded to her and are very protective of her. [106] In contrast, it cannot be said that [J.P. and H.P.] have as close a relationship with their biological family.

At the date of trial, they had not seen [V.P.] or [A.M.] since the OPIK review. When they were having visits prior to this time, [H.P.] would wet himself on the way into the city for the visit. [J.P.] would be incontinent the night before a visit.

If the visit was an overnight visit, he would be incontinent both before and after the visit [J.P.] admitted being scared of [V.P.] and wondered why nobody was checking on them when they had visits. [J.P. and H.P.] wanted to see their younger siblings, but [J.P.] did not want to see his older sister, [J.M.]. [ 61 ] The variation judge also considered the children’s views. In that respect, he noted that both J.P. and H.P. wanted to be adopted by D.K. and were “very excited” about the prospect of that occurring (at para 107).

He also observed that J.P and H.P. indicated that they did not want to live with the appellants. [ 62 ] The variation judge also noted that D.K. was well aware of J.P. and H.P.’s medical needs and was prepared to attend to those needs. He commented that both D.K. and the appellants appeared to offer appropriate housing arrangements. He then went on to consider the impact of his decision on the children’s cultural and spiritual heritage and upbringing, as required by s. 4 (

c) of the Act . He noted that it was important to ensure J.P. and H.P. not lose their culture and observed that, although D.K. was committed to ensuring they remain connected to their Indigenous heritage, the appellants were likely in a better position to foster this aspect of the children’s development. [ 63 ] The variation judge also considered the nature of the sibling relationship that existed between J.P., H.P. and V.A.P., and how it may be affected by a change in their living situation.

In that respect, he wrote: [115] When [J.P. and H.P.] were made permanent wards of the Ministry, it was intended that they be adopted, get some stability in their lives and find their “forever home”. [J.P. and H.P.] have now been living with [D.K.] for a significant period of time. They have lived with

her longer than they have lived with [V.P.] and [A.M.]. They are very settled and comfortable in her home. They are happy and want to be adopted by her. In contrast, when the children had to go for visits at [V.P.] and [A.M.]’s, they were getting emotional and peeing or pooping their pants. [J.P.], in particular, gets upset when there is talk about change in his life. [116] Additionally, [V.A.P.] deserves a chance to grow up with some of her siblings.

If I were to return [J.P. and H.P.] to [V.P.] and [A.M.], she would be separated from the only siblings she has ever known and there is a very good chance she would not see her siblings again. [V.P.] and [A.M.] have expressed no desire to have visits with [V.A.P.] and I saw no indication that they would facilitate visits between [V.A.P.] and her brother and sisters. This would be devastating not only to [V.A.P.], but to [J.P. and H.P.].

They are very close with their sister, [V.A.P.], and it would not be in their best interest to be separated from her. [ 64 ] The variation judge also referred to the unresolved concern regarding violence in the appellants’ home. In that regard, he wrote: [117] … [V.P.] and [A.M.] have already been given every opportunity, and then some; to address their violence and anger issues, but they have not done so.

There is no evidence that they present a reasonable prospect of change, within a reasonable length of time…. [ 65 ] The variation judge found this to be a factor weighing against a finding that the children’s best interests would be served by a return to the home of the appellants and also concluded that no other orders under ss. 37(1)(a), (

b) or (

c) would be appropriate. Ultimately, the variation judge determined that “[t]he factors militate in favour of [J.P. and H.P.] remaining in the permanent care of the Ministry…” (at para 118) and, accordingly, dismissed the application. III. the grounds of appeal [ 66 ] The appellants contend the variation judge made three errors that invite intervention by this Court, namely: (

a) failing to correctly apprehend the evidence; (

b) failing to find that there had been a material change in circumstances; and (

c) determining that that it was not in the best interests of J.P. and H.P. to be returned to the appellants’ care. [ 67 ] The appellants also allege that, because it took the variation judge nearly two years to render his decision, their rights under s. 7 of the Charter were violated. Among other things, the remedy they seek for this alleged violation is the return of J.P. and H.P. to their care.

IV. the standard of review [ 68 ] Applications to vary protection orders made under s. 37 of the Act are governed by s. 39 which reads, in relevant part, as follows: 39(1) Subject to subsection (2), the court may, on the application of any party to the original protection hearing, vary or terminate an order made pursuant to

section 37 if: (

a) there has been a change in circumstances; and (

b) it is in the best interests of the child to vary or terminate the order. [ 69 ]

Section 39 confers a discretionary power upon judges. The governing standard of appellate review is deferential in nature ( L.S.O. v S.O., 2016 SKCA 151 at para 13 , 90 RFL (7th) 318).

The exercise of a judge’s discretion under s. 39 is reviewable on appeal only if the judge “acted upon some wrong principle of law, took into consideration irrelevant factors, overlooked or misapprehended some material evidence, failed to act judicially or was so clearly wrong that the decision will result in an injustice” ( A.F. v Saskatchewan (Social Services) , 2019 SKCA 28 at para 2 ; see also B.L. v Saskatchewan (Social Services), 2012 SKCA 38 at para 13 , [2012] 12 WWR 468 [ B.L. ]; and A.T.H. v Ministry of Social Services, 2011 SKCA 101 at para 9 , 385 Sask R 31 ). V. analysis A.

Did the variation judge err by failing to correctly apprehend the evidence? [ 70 ] The appellants’ first submission impugns the manner in which the variation judge assessed the evidence and made findings of fact. The appellants say the examples of the variation judge’s errors in this respect are so numerous and overwhelming that the Variation Decision simply cannot be sustained. Broadly speaking, they contend the errors in the variation judge’s treatment of the evidence fall into four categories: (

i) failing to consider all of the evidence; (ii) making “palpable errors of fact” by reaching conclusions that were contrary to the evidence before him; (iii) improperly relying on hearsay and opinion evidence in the face of conflicting viva voce evidence; and (iv) relying on irrelevant evidence.

[71] I will deal with each in turn. 1. Failing to consider all the evidence [72] The appellants argue that the variation judge failed to consider crucial evidence favourable to their position. This submissionrelates to the testimony of four witnesses in particular: Wendy Jacklin, Tasha Mulhall, Janessa Baier and Lauren Hopper. [73] Wendy Jacklin was an outreach worker employed by the Saskatoon Health Region in connection with a program called“Healthy Mother, Healthy Baby”. She worked with A.M. following R.P.’s birth, and while A.M. was pregnant with L.P. Ms.

Jacklintestified that A.M. was interested in accessing appropriate supports to deal with her addiction issues and that she appeared to be makingsincere efforts in that respect. She also noted that A.M. was prepared to work with the Saskatoon Tribal Council and the available supportsto address familial issues with V.P. The gist of Ms. Jacklin’s testimony was that, even though the appellants were often frustrated with theprocess, they were motivated to do what was necessary to reunite their family.

She said she did not believe the OPIK had recommendedadditional counselling for the appellants as a prerequisite to the return of J.P. and H.P. She also testified that, during the course of herdealings with the appellants, she had no concerns regarding the safety of R.P. or L.P. [74] Tasha Mulhall, a family support worker with the Saskatoon Tribal Council, described, in generally positive terms, efforts theappellants had made in accessing programming.

She also said that, in her observation, the appellants interacted appropriately with theirchildren and in fact were “very loving and affectionate” toward all of them, including J.P. and H.P. Ms. Mulhall admitted that herobservations of the appellants’ interactions with J.P. and H.P. were limited to short periods of time (10 to 15 minutes) on only one or twooccasions.

She also testified that V.P. had tried, with her help, to access anger management programming, but she was unable to find aprogram that fit his needs. [75] Janessa Baier, the assistant supervisor of an ongoing child protection unit for the Ministry, was called as a witness by theMinistry. She prepared a protection assessment report [Protection Assessment Report]. The Protection Assessment Report receivedsignificant mention in the variation judge’s reasons. In addition to confirming the contents of the Protection Assessment Report, Ms.

Baiertestified that she observed the interaction between the appellants and R.P. and L.P. to be “very positive” and that the appellants wereattentive and caring parents to them. [76] Lauren Hopper was a childcare worker for the Ministry of Social Services. She began working with J.P., H.P. and V.A.P. inDecember of 2015, as part of the process of registering them for adoption.

She provided evidence about the negative effects suffered byIndigenous children who lose their culture as a result of being removed from their own families and placed with non-Indigenous families.She also observed that J.P. and H.P. said they did not wish to visit the appellants. [77] The appellants submit that they “anticipated that the trial judge would rely on the evidence from the testimony of thewitnesses” and “would summarize the evidence upon which he was basing his decision”.

Instead, they say, the variation judge failed tomention the testimony of these “crucial” witnesses in his reasons and, by failing to “adequately summarize the relevant evidence” fell intoerror.

They cite Gordon, in particular paragraph 52, as authority for the proposition that failure by a judge to make adequate reference inhis or her written reasons to the evidence led at trial compels an inference that the trial judge failed to consider all of the evidence, becauseit demonstrates a failure to conduct the necessary “full and sensitive inquiry into the best interests of the child.” [78] I am not able to give effect to this argument. Let me explain why. [79] First, in my view, the paragraph from Gordon that the appellants cite in support of this argument does not stand for theproposition they suggest.

It reads as follows: [52] The reasons of the trial judge fall short of demonstrating that he engaged in the full and sensitive inquiry into the best interests ofthe child required by s. 17 of the Divorce Act. He mentioned only one factor in support of his decision: that he “relied heavily” on thereasons of Carter J., who had already concluded that the mother was the “proper person to have custody of th[e] child”. Other factors, suchas the child’s relationship with her father, her extended family and her Saskatchewan community, were not mentioned.

No reference wasmade to the circumstances prevailing after the trial, the current needs and desires of the child, or the respective abilities of each parent tomeet them. One may speculate that the trial judge, having heard full argument, had such factors in his mind when he made his decision infavour of the mother. But one may equally infer that the necessary fresh inquiry was not fully undertaken. In either event, it seems clearthat the trial judge failed to give sufficient weight to all relevant considerations (Friends of the Oldman River Society v.

Canada (Ministerof Transport), (SCC), (SCC), [1992] 1 S.C.R. 3, at p. 77), and it is therefore appropriate for this Court to review thedecision and, should it find the conclusion unsupported on the evidence, vary the order accordingly. [80] As I see it, in this paragraph, the Supreme Court was discussing why a failure to consider relevant factors in conducting therequisite legal analysis amounts to reversible error. This was not a discussion about whether or not the judge failed to consider evidence inthe course of fact-finding.

The comments here do not apply to the type of error alleged in this line of the appellants’ argument. [81] It is beyond dispute that a trial judge is required to consider all of the evidence in making a decision. However, in the process ofgiving reasons for judgment, a trial judge is not required to refer to every item of evidence, detail the way each item of evidence wasassessed, or prove that he or she was alive to and considered all of the evidence. Nor is a trial judge required to answer each and everyargument of counsel (R v Cote, 2015 SKCA 52 at para 53, 457 Sask R 237).

The failure to address each and every aspect of the evidencein written reasons does not automatically open the door to appellate intervention (Coward v Kramer Ltd., 2018 SKCA 63 at para 85).

Asthis Court noted in Northrock Resources v ExxonMobil Canada Energy., 2017 SKCA 60, [2017] 12 WWR 369, appellate courts mustbegin from the presumption that a trial judge has considered and reviewed all the evidence: [10] As a starting point, a judge is not required to revisit each and every piece of evidence adduced at trial in his or her reasons; and,correspondingly, an appellate court must presume the judge has reviewed all of the evidence unless an omission gives rise to a “reasonedbelief” the judge has forgotten, ignored or misconceived the evidence in a way that affected the judge’s conclusion (Van de Perre vEdwards, 2001 SCC 60 at para 15, [2001] 2 SCR 1014; Housen v Nikolaisen, 2002 SCC 33 at para 72, [2002] 2 SCR 235).

It is open to ajudge to prefer the evidence of certain witnesses over others and to place more weight on some parts of the evidence than others

(Toneguzzo-Norvell (Guardian ad litem of) v Burnaby Hospital, (SCC), [1994] 1 SCR 114 at 122–123; Housen vNikolaisen at para 72). Moreover, the mere fact a judge has not discussed certain evidence in depth is not sufficient grounds for appellateinterference (Van de Perre v Edwards at para 15; Housen v Nikolaisen at para 72). See also Hilmoe v Hilmoe, 2018 SKCA 92 at para 35, [2019] 1 WWR 118. [82] In many instances, it may be helpful for a trial judge to summarize or recount in some detail the evidence of a witness orwitnesses in giving reasons. But it is not always necessary to do so. The mere fact that a trial judge does not provide a detailed

summary ofthe evidence of each witness does not, standing alone, compel the conclusion that he or she has failed to consider all the evidence. Nor,without more, does it support the conclusion that a judge failed to conduct the “full and sensitive” inquiry required in a child protectionhearing. A trial judge gives reasons to explain why a decision was made, not for the purpose of proving that he or she has considered allthe evidence. The authorities are clear that, unless something in the reasons gives rise to a reasoned belief to the contrary, it must bepresumed that a trial judge considered all the evidence.

In rendering reasons for a decision, a trial judge need only refer to those portionsof the evidence, and need only resolve those conflicts in the evidence, that are material to the issues that must be determined. [83] With respect, I see nothing in the variation judge’s reasons in this case that gives rise to a reasoned belief that he ignored,misconceived or forgot the evidence of the four witnesses named by the appellants in this line of argument – or, for that matter, any otherwitness – in a way that affected his ultimate conclusion.

I say this for several reasons. [84] First, even though the variation judge did not provide a

summary of the evidence of Ms. Mulhall or Ms. Jacklin, his reasons,when read as a whole, demonstrate that he considered their evidence. As an example, when referring to the Protection Assessment Report,he noted that Ms. Baier spoke to a number of V.P. and A.M.’s “supports, counsellors and treatment providers” and said that the supportsand counsellors “spoke highly” of them and “stated that they had made great progress in terms of their addictions” (at para 93). Thevariation judge also mentioned, at paragraph 82, that: [82] There is no question that [V.P.] and [A.M.] have changed since the trial in 2013.

They have re-established their relationship, hadtwo more children and got [J.M.] back in their care: They took some programming and counselling. They established some supports.Ms.

Vermette recognized these changes in 2014 and given how well visits were going with [J.M., J.P., H.P. and V.A.P.], decided to givethe family an opportunity at reunification -- this despite that [J.P. and H.P.] had already been permanently committed to the Ministry’scare. [85] This passage also demonstrates that the variation judge was alive to the fact that R.P. and L.P. had remained in the care of theappellants from the time of their birth and had not been apprehended.

Clearly, he was aware the appellants had made some positivechanges, aware that the Ministry viewed them as being capable of parenting R.P., L.P. and J.M., and aware that they had been observed tohave some positive interaction with J.P., H.P. and V.A.P. This was the thrust of the evidence given by Ms. Mulhall, Ms. Jacklin and Ms.Baier on these points.

Thus, even though the variation judge did not explicitly cite their testimony as the source of his conclusions in thatrespect, there can be no suggestion that he did not consider the material aspects of their evidence. [86] Second, the variation judge’s reasons also demonstrate that he was alive to the evidence given by Ms. Hopper. In paragraph109, in particular, he noted that “[J.P. and H.P.] are First Nations and it is important that they not lose their culture”.

In the paragraphs thatfollow, the variation judge made further reference to the importance of retaining a connection to J.P. and H.P.’s Indigenous heritage in theoverall weighing of their best interests. Once again, in my view, this indicates that, even though the variation judge did not specifically citeMs. Hopper’s evidence, he weighed and considered it in making his decision. [87] Finally, I do not see anything in the variation judge’s reasons that leads me to believe he ignored, misconceived or forgot whatMs. Jacklin or Ms.

Mulhall said about the appellants accessing, being required to access, or attempting to access, treatment. The variationjudge reviewed the appellants’ successes and failures in that respect in significant detail. He also recounted the recommendations made bythe OPIK, as detailed in its report. [88] Ms. Jacklin’s evidence on this point was simply her recollection about how she perceived what the OPIK had recommended.Ms. Mulhall’s testimony on this point was to the effect that she was unable to find a specific violence-related program to “fit V.P.’sneeds”.

In the end, the variation judge’s reasons make it clear he accepted that the OPIK had made the recommendations contained in thereport and that the elders had expectations about treatment and programming that the appellants did not meet, notwithstanding theevidence given by Ms. Jacklin and Ms. Mulhall. While it may have been preferable for the variation judge to have directly addressed theevidence they gave on this point, his failure to do so does not give rise to a reasoned belief that he failed to consider their testimony in anymeaningful sense. 2.

Making palpable errors in factual findings [89] The appellants submit the variation judge made a number of “palpable errors of fact”. More particularly, they say the variationjudge committed reversible error by making several crucial findings of fact that were plainly contradicted by the evidence. I will deal witheach example they have raised. [90] First, the appellants allege the variation judge incorrectly found that V.P. had assaulted A.M. on “several occasions”, eventhough his criminal record showed only one conviction for assault, in 2010.

With respect, the appellants mischaracterize the nature of thevariation judge’s findings of fact in this respect. While there are several points in the Variation Decision where the judge made referenceto incidents in which V.P. was charged with assaulting A.M., or was alleged to have assaulted her, he did not conclude that V.P. incurredany criminal convictions for assaulting A.M. apart from the single conviction documented in his criminal record. Nor, as I read thedecision, did he draw any conclusion about whether the other reported assaults occurred.

I see no error here. [91] Second, the appellants argue that the variation judge wrongly found V.P. had pled guilty to another assault that was notdisclosed in his record. In that respect, the judge noted: [27] In February 2013, [V.P.] was arrested for assaulting a cab driver. He was using cocaine at the time. He pled guilty and was

sentenced to jail. [ 92 ] It is correct to say that V.P.’s criminal record showed no record of an assault conviction related to any such incident in 2013. However, that was not the only evidence before the variation judge. In fact, in his own testimony, V.P. acknowledged that he was charged with assaulting a cab driver some time around Christmas or New Year’s of 2012–13. He acknowledged having struck the driver and said he had been arrested by the police for that charge in February of 2013.

He also stated that he had “dealt with” the charge and, as a result, was incarcerated at the time of the trial that led to the Committal Decision in 2013. Under cross-examination, he testified that he had taken the Urban Camp day program while incarcerated for the assault on the cab driver. [ 93 ] In light of this evidence, the trial judge’s conclusion that V.P. “pled guilty and was sentenced to jail” reveals no palpable error. There appeared to be little dispute that V.P. had been charged with an assault that involved an altercation with a cab driver.

There was no evidence before the court to suggest the charge had been stayed, withdrawn or otherwise brought to a resolution other than a conviction. V.P.’s own testimony was that he had been charged, had “dealt with” the charge and had served a period of incarceration in relation to it. On the strength of that evidence, it was open to the variation judge to reach the conclusion that he did. [ 94 ] Third, the appellants argue that the variation judge erred by relying on Wilkinson J.’s finding that A.M. left the committal trial “without explanation” in 2013.

They submit that, even though those were the exact words Wilkinson J. used in the Committal Decision, the variation judge had the opportunity to hear A.M. testify as to her explanation for leaving the trial and that he should have given credit to her explanation. [ 95 ] With respect, I fail to see how the concern the appellants raise on this point could possibly be seen as an error on the part of the variation judge.

His reference to A.M. leaving the committal trial, in paragraph 28 of the Variation Decision, was as follows: [28] … [A.M.] attended for part of the morning on May 13 but left shortly thereafter, without explanation, and did not return … [ 96 ] This was clearly a reference to what occurred in 2013. While A.M. explained in her testimony why she did not participate in the 2013 trial, she did not say – or even suggest – that she had provided any of that explanation to the Court in 2013. The variation judge made no error in referring to Wilkinson J.’s finding in the way he did.

Moreover, I fail to see that A.M.’s reason for failing to remain at the trial in 2013 had any bearing on the variation judge’s determination as to whether there had been a material change in circumstances or any impact on the best interests assessment.

The fact that the variation judge did not mention her latent explanation in his reasons does not amount to error. [ 97 ] Fourth, the appellants argue that the variation judge erred by remaining silent to the sworn testimony they gave about the lack of violence in their home and by finding that V.P. had not attended parenting classes, even though he testified that he had.

They also contend the variation judge improperly inferred that V.P.’s testimony (which was supported by other evidence) about the alternatives to violence program being unavailable to anyone other than sentenced offenders “may not be accurate.” With respect, I do not read the record as revealing any such errors. [ 98 ] A.M. testified that the assault allegation she made against V.P. in 2014 was false. She also said that she and V.P. had learned and implemented non-violent ways of resolving conflict in their home.

V.P. testified that no assault occurred on the occasion in 2014 when he was charged with assaulting A.M. He described the incident as an argument that resulted from him trying to stop her from using drugs, after which she called the police. He also testified that he had implemented strategies learned from alternatives to violence programming to resolve conflicts peacefully and that he tried to engage in such programming again following the OPIK review but was met with the reality that the Alternatives to Violence Program could only be accessed through the Courts, as part of a sentence order.

V.P. also testified that, at the time of the hearing of the variation application, he was taking parenting classes. [ 99 ] Contrary to what the appellants argue, the variation judge did not ignore this evidence. Rather, as the following portions of the Variation Decision demonstrate , he addressed it head-on : [86] [V.P.] and [A.M.] continued with the counselling they had been receiving prior to the first OPIK and [V.P.] attended MACSI inpatient addictions programming. [V.P.] thought he had attended parenting classes, but he could not recall when or where he did these classes.

I am not convinced on the evidence that he took any parenting classes after the first OPIK . [87] [A.M.] did not take inpatient treatment with the children. Her and [V.P.] did not take couples counselling except to the extent of what they were discussing in Peter Nippi’s program. They did not take the Alternatives to Violence program, as apparently they required a court order to be involved in it.

Interestingly, they did not take any other domestic violence programming even though this was one of their main issues in relation to their ability to parent. … [ 100 ] [V.P.] and [A.M.] kept maintaining that they had changed and done everything the Ministry and the Elders wanted them to do. But what they said and what they did were opposite. I do not believe them when they say that they do not have the issues with violence and anger that they used to have. There are still instances of domestic violence, of [V.P.] losing his temper and threatening people and of inappropriate physical contact with [S.H.B].

They did not accept responsibility for these incidents but rather denied they occurred or blamed others… (Emphasis added) [100] In my view, the reasons clearly show that the variation judge did not remain mute as to the appellants’ testimony about the absence of violence in their home or V.P.’s testimony about taking parenting classes. Far from that, in fact, he clearly considered their evidence and, just as clearly, rejected it. He was entitled to do so.

Furthermore, contrary to what the appellants argue, the variation judge appeared to accept the contention that the Alternatives to Violence Program was only available to sentenced offenders. He was concerned, however, that the appellants had not engaged in other domestic violence programming, given the prominent role violence played in the OPIK recommendations. Again, I see no basis to intervene.

[ 101 ] Finally, the appellants contend that the variation judge incorrectly determined there had been a physical and verbal confrontation between the appellants at the OPIK review in the spring of 2015. In particular, they refer to these portions of the Variation Decision: [46] During the OPIK, there was a verbal and physical incident between [V.P.] and [A.M.] in the lobby of the hotel where the OPIK was taking place. As a result of the incident, [V.P.] and [A.M.] were asked to leave the hotel Ms.

Vermette attended and was able to convince the hotel to let them remain there until later in the day. [47] In addition to this altercation, [V.P.] got into a confrontation with [B.B.]. He had asked that [B.B] not be present at the hotel, however, she had to bring [J.M.] to speak to the Elders. When she brought [J.M.] to the room in which the OPIK was taking place, there was an incident between [V.P.] and her.

After this incident, everyone was distraught, including the Elders. … [91] What [V.P.] and [A.M.] had and had not done was brought to the Elders’ attention at the OPIK review held at the beginning of April 2015. During the review, [V.P.] and [A.M.] had a verbal and physical altercation in the hotel lobby that resulted in the hotel evicting them. Then [V.P.] got into a confrontation with [B.B.] when she brought [J.M.] to the hotel to take

part in the OPIK. Not surprisingly, after meeting with the parties, their children and their supports, the Elders were not satisfied that [V.P.] and [A.M.] had dealt with their problems. [ 102 ] On this point, the appellants are correct in asserting that the variation judge made a factual error. There was no evidence that the incident in the hotel lobby during the OPIK review involved the two of them.

There was, however, by all accounts, a confrontation between V.P. and B.B. that was serious enough to draw the attention of the hotel staff and nearly caused the hotel to evict the appellants before the OPIK review could be completed. [ 103 ] That said, this is not an error that invites intervention by this Court. The evidence before the variation judge was that there had been a confrontation of a serious nature at the OPIK review and that confrontation involved V.P. One of the major concerns for the OPIK Elders was V.P.’s ability to deal with stressful situations and his reaction to others in those situations.

Here, at a critical moment, he became involved in a confrontation in public that alarmed and frightened other people. Whether that confrontation was between V.P. and A.M. or between V.P. and someone else was of little moment. To the extent that the variation judge made a factual error on this point, it was of no material consequence to the decision and does not provide a basis for this Court to intervene. 3.

Improperly relying on hearsay and opinion evidence in the face of conflicting viva voce evidence [ 104 ] The appellants contend that the variation judge erred by improperly relying on hearsay and opinion evidence. While they acknowledge that hearsay evidence is often admissible in child protection proceedings, they argue that the variation judge admitted and used the hearsay evidence in this case in an impermissible fashion, namely for the truth of its contents, as opposed to merely narrative.

They say he should not have used the hearsay evidence as a basis for making factual findings, especially where it was contradicted by sworn testimony. The appellants also submit that the variation judge erred by relying on hearsay evidence pertaining to the opinions of certain persons regarding their motivation for change. [ 105 ] In this regard, the appellants focus on evidence contained in three documents: (

i) the Report from September 2014 OPIK [ OPIK Report ]; (ii) the Report from April 2015 OPIK Review [ OPIK Review Report ]; and (iii) the Protection Assessment Report . Four of the Ministry’s witnesses – Janessa Baier, Cheryl Vermette, Elsie Sanderson, and Dawn Olivier – testified about the contents of these reports. The evidence with which the appellants now take issue related to two main categories: (

i) accounts of various altercations and confrontations in which V.P. was involved; and (ii) observations and opinions attributed to Mr. Nippi regarding the appellants’ performance and attitudes in attempting to carry out the recommendations of the OPIK.

The appellants gave direct evidence about those matters and say the trial judge erred by rejecting their testimony and making factual findings by accepting hearsay accounts. [ 106 ] With respect to the first category, the variation judge was obviously concerned about V.P.’s history of being involved in violent incidents, given Wilkinson J.’s conclusions in the Committal Decision.

There was evidence before the variation judge, which he accepted, that the OPIK Elders recommended the appellants not be reunited with their children until they had demonstrated they were serious about addressing issues of addictions and domestic violence. The Elders were “concerned that V.P. had a bad temper and blamed others for things” (at para 84) and recommended the appellants take a program called “Inner Child” from Mr. Nippi. [ 107 ] The variation judge reviewed the appellants’ apparent lack of success in following through with the OPIK’s recommendations.

He recounted some of the evidence regarding V.P. having had violent confrontations with others, including the incident where he was charged with assaulting A.M. in late 2014 and the confrontation with B.B. at the OPIK review in 2015. The variation judge made reference to concerns that arose because of “instances of recent violent incidents”, as identified by Ms. Baier in the Protection Assessment : [94] What is more troubling in Ms. Baier’s assessment was that [V.P.] denied having anger issues anymore.

He said he had attended an anger management program at Family Services Saskatoon in early 2014 and had done the Alternatives to Violence program in 2010. Both [V.P.] and [A.M.] indicated that the last domestic violence incident between them was in 2010. However, Ms. Baier identified seven instances of recent violent incidents, including: (

a) October 2014-There was an incident between [V.P.] and [S.H.B.] where he locked her in the basement. There was a physical altercation between them resulting in [S.H.B.] hurting her hand. Charges may have been laid. (

b) November 27, 2014 - [A.M.] reported to police and a Ministry worker that [V.P.] had hit and choked her while [R.P.] was in the home. A no-contact order was put in place which [V.P.] and [A.M.] breached. [A.M.] later tried to recant her account. (

c) In 2015, My Home staff refused to work with [V.P.] due to his anger when speaking to them. (

d) February 2015 - [A.M.] and [V.P.] were hostile with the Ministry worker who was attempting to case plan. The worker left their home prior to finishing the meeting.

(

e) April 2015 - [V.P.] and [A.M.] fighting in the hotel lobby at the OPIK review. (

f) April 2016 - [A.M.] and [S.H.B.] got into an altercation in the home and [A.M.] locked her in the basement. [A.M.] blamed [S.H.B.] for the incident and took no responsibility herself. (g) [V.P.] had attended an STC band meeting with his children and threatened Myron Neapatung, a band councillor. STC refused to meet with [V.P.] following this incident as they felt it was a safety risk due to the threats he made. [V.P.] and his sister, [C.P.], denied the incident and felt it was blown out of proportion. [95] This list does not include the confrontation [V.P.] had with [B.B.] at the OPIK review in April 2015.

Nor does it include [S.H.B.]’s complaint in September 2016 to Ministry workers that she did not want to live with [V.P.] and [A.M.] any further because they argued all the time and [V.P.] had assaulted her. [ 108 ] The evidence the Ministry tendered regarding these incidents did not come in the form of testimony from witnesses who were actually present for the relevant events. Ms. Baier did not witness any of these incidents personally; the information in her Protection Assessment report was gathered from speaking to other persons and reviewing Ministry records.

Information regarding the incident with B.B. came from the Protection Assessment Report . Dawn Olivier provided evidence regarding the incident that led to S.H.B.’s 2016 complaint, but her testimony was, again, based on speaking to other persons and reviewing Ministry records. [ 109 ] With respect to the second category, observations and opinions attributed to Mr. Nippi, the variation judge accepted that the OPIK Elders had recommended, among other things, that the appellants work with an Elder and take couples counselling, including Mr. Nippi’s “Inner Child” program.

The variation judge noted that “at the end of the program, Elder Nippi expressed concern about [V.P.]’s ability to accept responsibility for himself and about him blaming everyone else” (at para 85). [ 110 ] In his reasons, the variation judge made several other references to statements and opinions attributed to Mr. Nippi. At paragraph 96, he noted Ms. Baier’s conclusion that V.P. “had an inability to understand events as they happened, or … was simply blaming others to draw attention away from his own behaviours” was consistent with Mr.

Nippi’s opinion that “[V.P.] deflected and projected his anger and blamed others for his problems” and that the appellants had “normalized the violence level in their home”. He went on to state that, despite the fact Mr. Nippi had identified domestic violence as a concern, the appellants “did nothing to address this deficiency in their parenting skillset” (at para 99).

Finally, at paragraph 101, the variation judge, after reviewing some of the changes the appellants had made since 2013, said: [101] … [O]n the evidence before me, I am not satisfied that [V.P.] and [A.M.] have addressed the issues of domestic violence and anger management that Wilkinson J. noted in her June 2013 judgment. The changes they have made in their lives, while admirable, have not addressed her concerns regarding anger and violence.

The changes they have made have not altered [V.P.] and [A.M.]’s inability to meet [J.P. and H.P.]’s needs. [V.P.] and [A.M.] need some significant anger management and domestic violence programming to change their behaviours. The Elders recognized that; Elder Peter Nippi recognized that; I recognize it … [ 111 ] The appellants contend that, because the problem of domestic violence – and what steps they took or failed to take to address the problem – was critical to the disposition of their application, the variation judge should not have given the weight he did to second-hand accounts of Mr.

Nippi’s opinions, or to second-hand accounts of alleged incidents of violent behaviour by V.P. [ 112 ] The appellants do not argue that the hearsay evidence to which they refer was inadmissible, but rather that the variation judge relied on it for an impermissible purpose.

Citing V.J.C., Re, 2009 SKQB 395 , the appellants say that, although admissible, such evidence could properly be considered only for narrative purposes and, given the nature of the proceedings, “the vital interests at stake … should not be determined on the basis of unreliable or untested evidence” , at para 10. [ 113 ] In addressing this line of argument, I begin by observing that, at trial, the appellants ultimately did not object to the admission of the OPIK Report or the OPIK Review Report as evidence.

While the appellants initially raised an objection to the introduction of these documents during the Ministry’s cross-examination of A.M., once the Ministry had begun its case and called the necessary witnesses to identify and verify the accuracy of the documents, neither appellant took issue with their admissibility. Nor, at any point during the trial, did the appellants argue that the hearsay portions of the documents were admissible only for a specific or limited purpose.

This is significant because, when A.M.’s counsel initially raised an objection to the tendering of these documents during cross-examination, counsel for the Ministry responded as follows: MS. BELLOC-PINDER: But the report is commissioned by the Ministry. As far as I’m concerned, it’s part of child protection files, and business records. There’s no question, I don’t -- I think that the document is authentic and relevant. Certainly my friend has a point, that if the people who wrote those actual words aren’t present to be cross-examined, of course that goes to weight.

But there were records that were -- reports that were prepared. My client relied upon them. Everybody is aware of them. [ 114 ] From this passage, it appears the Ministry took the position that the OPIK Report and OPIK Review Report were admissible as business records. Both documents were later tendered during the Ministry’s case and, it would appear, admitted into evidence on that basis. [ 115 ]

Section 50 of The Evidence Act, SS 2006, c E-11.2 , governs the admissibility of business records in civil proceedings in Saskatchewan. It reads as follows: 50

(1) Any record made of any act, transaction, occurrence or event is admissible in any proceeding as evidence of the act, transaction, occurrence or event if: (

a) it was made in the usual and ordinary course of a business; and (

b) it was in the usual and ordinary course of the business to make the record at the time of the act, transaction, occurrence or event or within a reasonable time after the act, transaction, occurrence or event.

(2) The circumstances of the making of a record mentioned in subsection (1), including the time of making the record in relation to the time of the act, transaction, occurrence or event and lack of personal knowledge by the maker, may be shown to affect its weight, but those circumstances do not affect its admissibility. [ 116 ] Business records are a statutory exception to the hearsay rule. Once a record is admissible on that basis, the question of what weight is to be assigned to the hearsay portions of the evidence is a matter for the trier of fact, even if it is double or triple hearsay.

As this Court noted in B.L. : [29] … Business records are considered inherently reliable because they are created in a context where they are systematically stored, produced and relied on. They are made in circumstances of regularity and continuity which produce habits of precision. Therefore, provided the record complies with the statutory prerequisites, it is sufficiently credible and trustworthy to be admissible and it matters little whether the record contains double or triple hearsay. This is so especially in the light of a specific provision like s. 50(2) of The Evidence Act .

This subsection signals that the resolution of the issue of what to make of “hearsay” in the record, whether double or third party variety, is left to weight and the discretion of the judge and not admissibility. [ 117 ] Put another way, it is open to a trial judge to admit records but to give little or no weight to hearsay found in the admissible record ( B.L. at para 32 ).

It is also within the discretion of a trial judge to admit “even those portions of the record which are inadmissible as business records, for the limited purpose of narrative or background” or to edit or delete “parts which do not meet the requirements of ss. 50 – 52 of The Evidence Act ” ( B.L. at paras 33–34 ). [ 118 ] In this case, even though the variation judge did not specifically find the OPIK Report and OPIK Review Report to be business records, they were properly admissible on that basis.

In my view the Saskatoon Tribal Council, which organized the OPIK, falls within the broad definition of “business” in s. 49 of The Evidence Act . The evidence before the variation judge clearly established that these reports were the type of record made as part of the usual and ordinary operation of the OPIK and that they described an “occurrence or event” that was the very essence of the OPIK. The purpose of the OPIK was to work with the family to try to find a path to reunification.

As Cheryl Vermette testified, a regular part of the process was for the Elders to sit together after the OPIK’s closing ceremony, review all of the information and, with the help of an assistant, prepare a report containing the OPIK’s recommendation to the Saskatoon Tribal Council and/or the Ministry. Counsel did not identify at trial, nor do I see anything in those records, that the variation judge should properly have deleted, edited, considered only as narrative, or considered only for some other limited purpose.

As such, in my view, the variation judge committed no reversible error in considering the contents of the OPIK Report and OPIK Review Report as evidence, or in ascribing to those documents the weight that he did. [ 119 ] As for the Protection Assessment Report, the appellants also took no issue before the variation judge with its admissibility and did not seek to limit the purpose for which any of its contents – or Ms. Baier’s evidence – could be admitted.

That said, I would agree with the appellants so far as they argue that the Protection Assessment Report was not admissible for the purpose of proving that V.P. had committed recent violent acts. Section 50(1) (

b) of The Evidence Act requires that, before a record can be admitted to prove

an act, transaction, occurrence or event, it be shown that it was in the “usual and ordinary course of the business to make the record at the time of the act, transaction, occurrence or event”, or to do so within a reasonable time afterward. This had not been shown on the record. I also note that the document and Ms. Baier’s testimony were replete with other hearsay. In particular, Ms. Baier said various things about Mr. Nippi’s observations and opinions and also made reference to incidents of violence involving V.P., as they were described

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