THE COURT OF APPEAL FOR SASKATCHEWAN [M.H.] and [A.H.] (Petitioners) RESPONDENTS [R.M.F.] (Respondent) APPELLANT CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Lane COUNSEL: Mr. John Benesh for the appellant Mr. R. Wiebe for the respondents DISPOSITION: Appeal Heard: 17 November 1994 Appeal Dismissed: 22 December 1994 On Appeal From: U.F.C. 578/92, J.C. of Saskatoon Appeal File: 1816 Reasons by: The Honourable Mr. Justice Lane In concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Wakeling LANE J.A. The appellant, who is mentally handicapped, appeals the entrusting of custody of her five year old son to the respondents. The child was born in July of 1989 and in May of 1990 the appellant and her child were placed in the home of the respondent [M.H.]. The child and his mother were placed with [M.H.] and [A.H.] pursuant to Family Support Services Contract whereby the Harrises were to "spend individual time with [R.M.F.] in supervising and teaching her to properly care for [A.] and provide for his needs." [M.H.] later married [A.H.] who is the other respondent. The child was in the care of the appellant and the respondents from May of 1990 to June 1992 and since that time solely in the care of the respondents. The relationship between the appellant and the respondents broke down and she left the care of the respondents on May 30, 1992. The facts are more completely set out in the judgment of Dickson J., which judgment is appealed from, in essence, on the following two grounds: 1. Did the trial judge err in ruling the respondents have sufficient interest, and as result, status, within the meaning of s. 6(1) of The Children's Law Act, S.S. 1990-91, c.C-8.1, to apply for custody? 2. Did the trial judge err in awarding custody of the child to the respondents and not to the child's natural mother? The respondent cross-appealed for costs here and below contending the appellant's position had no merit and her case was being pushed forward by others, including the Department of Social Services. APPELLANT'S POSITION The appellant contends the respondents failed in their contractual duty (which the appellant classifies as fiduciary duty) to teach the appellant both how to properly care for the child and how to properly provide for his needs, and having failed to meet their obligations the respondents do not have "sufficient interest" as required by s.6(1) of The Children's Law Act, S.S. 1990-91, c.C-8.1 and are therefore without status to make an application for custody. The appellant then argues the trial judge erred in deciding the issue was simply to determine the best interests of the child. The appellant contends the trial judge should have started with the premise the natural relationship between mother and child ought to be preserved unless protection for the child is needed or the child is abandoned. The appellant says there was no evidence protection was needed and no evidence the child was ever put in jeopardy and the child was not abandoned. As result the child's right to be secure in its relationship with its natural parent should not be disturbed. The appellant contends the contract should govern and if those who sign such contract to supply custodial and support services are able to obtain custody, their dominating position vis vis those with disability in their care would encourage predatory actions against the less powerful. The appellant further contends the trial judge misconstrued important evidence and misinterpreted important facts. The evidence misconstrued was the finding by the trial judge the appellant was classified by her doctor as person requiring level care when in fact the classification was for departmental funding. Finally, the appellant says the trial judge misinterpreted the appellant's expert psychologist, failed to consider the resource material supplied by the appellant's psychologist, and failed to consider the support the Department of Social Services was prepared to supply the appellant. LEGISLATION The applicable statute respecting the custody of children is The Children's Law Act and the relevant provisions are: 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a) grant custody of or access to child to one or more persons; In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; The relevant provisions of The Child and Family Services Act S.S. 1989-90 c.C-7.2 are: Subject to this Act and the regulations, the minister may: (a) establish, operate and maintain family services; (b) provide family services to or for the benefit of parent or child where the minister considers them essential to enable the parent to care for the child; (c) enter into agreements with any person providing family services by which the minister is obliged to make payments for the provision of family services pursuant to this section. DECISION OF THE TRIAL JUDGE The trial judge ruled the respondents had "sufficient interest" because on earlier applications their status was not challenged and although there had been no specific declaration of the respondents "sufficient interest" in these past applications it was obvious the presiding judge in chambers was satisfied the respondents had "sufficient interest". The trial judge then went on to find the respondents had, in fact, sufficient interest in the application to qualify as applicants for custody and we are in agreement with his finding. Relying on s.8 of The Children's Law Act the trial judge stated "The court's role is not to determine broad social issues, but instead, to determine what custodial arrangement is in [A.]'s best interest". And further, "The court's task is, once again, not to decide whether mentally challenged parents can be taught to care for children, but instead, in who's care will [A.]'s best interests be advanced." After reviewing the evidence, he stated "the evidence clearly demonstrates that [A.]'s best interest will be served if he remains in the care of the petitioners" (respondents). He then ordered reasonable access and if the parties could not agree on reasonable access they were granted leave to apply for further directions. ANALYSIS After deciding that the respondents had "sufficient interest" within the meaning of s.6 of The Children\'s Law Act and therefore status, a decision with which, as noted, we agree, the trial judge then had to decide the issue of custody. Simply put, the trial judge was correct in his statement of the law that his duty was to determine what custodial arrangement was in the child\'s best interest. The Children's Law Act makes it clear this is the only consideration. This rule prevails even in contests between a natural parent and a stranger. The parental tie between mother and child is, of course, not to be ignored in such contest. It is taken into account by the judge when considering the factors outlined in paragraph (i) of clause (a) of s.8. The trial judge's error as to the categorization of the appellant as needing level care when in fact the level is funding level and not "care" level is not material as there exists other strong evidence, including that of the court appointed psychologist, as to concerns about the mother's ability to care for the child, and the risk to the child if he is left unsupervised for extended periods of time in the mother's care. The trial judge considered the testimony of the appellant's expert psychologist, (who did not interview the parties) and the expert's written material and simply accepted the evidence of the other psychologists in making his determination as was the trial judge's prerogative. See Toneguzzo-Norvell v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] W.W.R. 609 wherein McLachlin J. states at p. 614 and p. 615: agree that the principle of non-intervention of Court of Appeal in trial judge's findings of facts does not apply with the same force to inferences drawn from conflicting testimony of expert witnesses where the credibility of these witnesses is not in issue. This does not however change the fact that the weight to be assigned to the various pieces of evidence is under our trial system essentially the province of the trier of fact, in this case the trial judge. It is trite law that the trier of fact may accept such evidence as he or she finds convincing, and that an appellate tribunal ought not to interfere unless it is persuaded that the result amounts to "palpable or overriding error". The findings of the trial judge were strongly supported by the evidence, the law was correctly applied, and therefore his decision ought not be overturned. There is, however, concern about appropriate access. The trial judge was prepared to order reasonable access but gave the parties chance to work out what that meant. The appellant must know and understand what the rules of access are and the respondents must recognize an appropriate relationship between mother and child must be encouraged. The matter is, therefore, remitted to the Family Court to determine reasonable access. COSTS The trial judge made no order as to costs and the respondents' cross-appeal for costs, here and below. They are not looking for the appellant to pay costs, but they believe the appellant was supported by third parties in case which had no merit. The respondents, however, were not prepared to name any of the third parties other than the Department of Social Services and none of these third parties are parties to the action. There is little doubt the respondents have incurred significant financial burden. Given the comment of counsel for the respondent, he was not looking to the appellant to pay costs but that an award of costs may assist him in alleviating some of the financial burden, it is fair to award the respondents' costs on the Queen's Bench tariff on the trial below and on double Column on appeal. The appeal is, therefore, dismissed with costs here and below and the matter returned to the Family Court for a determination of reasonable access to the child by the mother. DATED at the City of Regina, in the Province of Saskatchewan, this 22nd day of DECEMBER A.D. 1994. concur BAYDA C.J.S. concur WAKELING J.A.
The Respondents contracted with the Department to care for a child and his Mother who was mentally disabled. After two years, the relationship between the Respondents and the Mother broke down and she left their home. The Respondents sought and were granted custody of the child. The Mother appealed. HELD: Appeal dismissed. 1)The Respondents had sufficient interest under s.6 of The Children's Law Act to seek custody of the child. 2)The trial judge correctly determined that the only issue was the child's best interests, even in a contest between a parent and a stranger, although the parent/child relationship was one factor to be considered. 3)The findings of the trial judge were strongly supported by the evidence, the law was correctly applied, and therefore his decision ought not be overturned. 4)The matter was returned to the Family Court for a determination of reasonable access.