C.A. No. 02910
NOVA SCOTIA COURT OF APPEAL
Cite as: M.D. v. Children’s Aid Society of Halifax, 1994 NSCA 68
Hallett, Roscoe and Pugsley, JJ.A.
BETWEEN: )
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M. D. ) Appellant in Person
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Appellant )
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- and - )
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CHILDREN'S AID SOCIETY OF HALIFAX ) Pamela J. MacKeigan
) for the Respondent
Respondent )
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) Appeal Heard:
) April 8, 1994
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) Judgment Delivered:
) April 28, 1994
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
THE COURT: The appeal is dismissed without costs as per reasons for judgment of the Court.
THE COURT:
M.D. gave birth to her first child, M., on September [...], 1988. Six days later he was taken into the care of the Children's Aid Society of Halifax when M.D. was admitted as an involuntary patient to Camp Hill Hospital.
M. was immediately placed by the Society with a family who still looks after him some five and one-half years later. They wish to adopt him permanently.
M.D. has only seen M. on 19 supervised occasions, one and one-half hours duration each, since September [...], 1988, the last visit occurring on August 17, 1990.
Since September of 1988, M.D. has asserted her claim to custody of, or access to, M., before the courts of this province. She gave evidence initially before Chief Judge Black of the Family Court in 1990. She also testified before Judge Daley in 1993 when she applied to the Family Court to terminate Chief Judge Black's order of October 19, 1990 because of a "change in circumstances".
Both judges concluded that, while M.D. is intelligent and loves M., there is a definite risk of harm to M. if he is placed with her. They point out that M.D. does not have either a parental or personal relationship with M., that he is unaware of her as a parent, and that it is in his best interest that he remain in the care and custody of the Society and be placed for adoption in the present foster home.
In her submission to this court, in support of her appeal from Judge Daley's decision, M.D. stresses that she has never abused or neglected M., she has demonstrated her capabilities as a loving, caring mother in the nurture of L., her second child, born in February, 1992, and that the opposition to her is based on a foundation of improper discrimination; namely, her temporary mental health problems and her status as a single mother.
HISTORY OF THE PROCEEDINGS:
On September 29, 1988, an order was granted by the Family Court committing M. to the temporary care and custody of the Society.
M.D. was deported to the United States on November 26, 1988 and returned to Nova Scotia approximately one year later.
A number of pre-trial proceedings were held at Halifax while she was in the United States, but on every occasion she was represented by counsel.
On February 28, 1989, an order was issued consented to by her counsel, determining that M. was a "child in need of protection". Final disposition was delayed as a consequence of M.D.'s absence from Nova Scotia, the illness of the judge initially assigned to the case, and M.D.'s own illness.
When the hearing finally commenced on February 19, 1990, M.D. dismissed her counsel and insisted the matter proceed while she conducted the case personally.
After hearing evidence from three witnesses, Black, C.J.F.C. determined that the proceeding should be adjourned until legal counsel was obtained both for M.D. and independent counsel for M..
The trial resumed on March 7, 1990 with all parties represented by counsel. M.D.'s mental state was deemed to be a critical issue and accordingly the trial was then adjourned until April 20, 1990 in order to obtain M.D.'s medical records from the United States.
M.D. became ill and was hospitalized from April 1 to May 18, 1990. Black, C.J.F.C. deemed her not competent to instruct counsel and accordingly a guardian was appointed to act on her behalf.
The trial resumed on July 3, 1990. After hearing evidence from nine witnesses, including four psychiatrists, one general practitioner, two social workers, M.D.'s companion and M.D. herself, Chief Judge Black on August 17, 1990, delivered a comprehensive opinion, committing M. to the care of the Society.
M.D.'s appeal to the County Court was dismissed in June of 1991 ((1991), 104 N.S.R. (2d) 388).
Her further appeal, including a request to receive new evidence (which was denied), to the Appeal Division of the Supreme Court of Nova Scotia, the predecessor of this Court, was dismissed in June of 1992 ((1992), 113 N.S.R. (2d) 27).
On October 14, 1992 the Society advised M.D. that it intended to "sign a Notice of Proposed Adoption" respecting M.. M.D. then applied to the Family Court to terminate the permanent care and custody order granted by Chief Judge Black on October 19, 1990.
Evidence was heard on November 9, 1992, February 15, 16 and May 25 and 26, 1993. The delays were occasioned by M.D.'s illness and hospitalization. Judge Daley's meticulous decision of July 9, 1993, dismissed M.D.'s application on the ground that she failed to prove a "change in circumstances" since the decision issued by Chief Judge Black, to demonstrate that it would be in M.'s best interest to be transferred to her care. He further concluded that the Society had proved that it was best for M. to remain in its care and be placed for adoption in its present foster home.
M.D. filed Notice of Appeal on August 19, 1993. She appeared in Chambers on August 26, 1993, advising that her application for further representation by Legal Aid had been turned down, that she would therefore conduct her own appeal, and that she would be requesting leave to adduce new evidence.
The Chambers judge was conscious of the 90 day time limit for hearing of the appeal directed by s. 49(4) of the Children and Family Services Act, S.N.S., 1990, c. 5 and accordingly set down the appeal for hearing on November 9, 1993.
As a consequence of M.D.'s involuntary hospitalization on August 30, 1993, and in order to enable M.D. to properly prepare for the appeal, the hearing of the appeal was adjourned to December 10, 1993 for argument. This date was confirmed on November 9, 1993 when M.D. and counsel for the Society appeared before the panel in order to preserve jurisdiction.
On December 10, 1993, after examining the eight affidavits and nine letters submitted by M.D., as well as hearing representation by both M.D. and counsel for the Society, the Court rejected M.D.'s application to adduce fresh evidence.
M.D. then advised the Court that she was distressed by the decision and consequently unable to advance her oral submissions in support of the written material she had filed.
She requested a further adjournment which was granted. January 21, 1994 was set for the resumption of the appeal.
On January 21, 1994, Peter Katsihtis, a lawyer from Halifax, advised the Court that he had been retained some weeks earlier by M.D. to conduct the appeal but that he had been dismissed by her the previous afternoon. He further stated that it was his understanding that M.D. was an involuntary patient as of that moment, at the Nova Scotia Hospital, and accordingly requested an adjournment.
The request was granted and the appeal was adjourned until February 8, 1994.
At the opening of Court on February 8th, counsel for the Society advised that M.D. was still hospitalized. The matter was accordingly adjourned until April 8, 1994.
Oral submissions were advanced on April 8 by M.D., as well as counsel for the Society, in support of the written submissions filed by both parties some months earlier.
M.D.'s BACKGROUND:
M.D. was born on October [...], 1949. She received a B.A. in 1973 from [...], majoring in Psychology and English Literature.
Her parents, who are both in their mid 70's, reside in[...]. and have been fully supportive during her illnesses and hospitalization.
M.D. worked for the U.S. Government for ten years, and now receives a pension of $500.00 U.S. a month and has benefits under a medical plan which reimburses her for fifty percent of the cost of all psychiatric services rendered to her.
She belongs to M.E.N.S.A., membership in which is available to those who possess I.Q.'s in excess of 140.
She suffered from an addiction to drugs and alcohol during the 1970's and 1980's and was hospitalized at various times in a number of mental health institutions in [...].
She testified that she faked psychiatric symptoms in order to "get away from her parents" and have a rest in the hospital. She stated she was initially admitted for depression, but concluded that "since depression would only get me about two weeks in the hospital", she worked "very hard" to obtain the label of "schizo effective" disorder.
She was placed on medication but "in order to make it look real that I was having a breakdown, I stopped taking the medication".
M.D. came to Canada during her pregnancy in 1988 so that her child would be born in this country.
M.'s father is a lawyer residing in [...]. We are advised that he supports the Society's plan for adoption of M..
M.D. returned to Nova Scotia in 1989 after an absence of one year arising out of a deportation order issued against her in November of 1988.
She met T., a fellow member of M.E.N.S.A. shortly after her return and commenced a relationship with him. Their daughter L. was born on February [...], 1992. Accordingly to M.D., she and T. are still friends. Although she would like to continue the association, he wishes to discontinue the romantic relationship in her words "because I was in the hospital".
M.D.'s parents cared for L. in Halifax for the first three months after her birth. When the grandparents returned to [...], T. obtained interim custody of L. and she and M.D. came to live with him. A homemaker assisted and supervised M.D. in her care of L.. In August, 1992, M.D. refused to take medication and as a result of her progressively erratic behaviour, T. took steps to remove M.D. from the home. Since that time, T. has arranged for his relatives to care for L.. M.D. has, as well, carried out some parenting chores.
T. testified that when M.D. is well, he has no concern about her taking care of L., when she is ill, she becomes "increasingly irrational, and unable to take care of herself". He agreed it was not wise for M.D. to care for L. in those circumstances.
He testified that he was not prepared to be a "backup resource for M.".
M.D. was hospitalized for mental illness, a total of 105 days in 1990, 130 days in 1991, and 44 days in 1992.
She admitted in a candid response that she suffered from "conflicting drives - inside myself, one is to be a responsible parent, the other is - I don't want any responsibility and just want to be lazy and just get waited on . . . I feel like I want to be a responsible parent and I'm capable of it, yet I throw caution . . . I throw responsibility to the wind."
She acknowledged that in view of the very limited contact she had with M., that if M. came to live with her, "it would be a very difficult adjustment for him - he doesn't really know me any more."
M.D.'s CARE PLAN:
M.D. testified that her past instability should not be considered in evaluating her submission to care for M. because:
(1) Many of her hospitalizations occurred because she was deliberately faking;
(2) Her illness had been recently diagnosed as environmental in origin, and daily intake of vitamin pills would control the symptoms;
(3) She would give up eating foods to which she now believes she is allergic;
(4) If awarded custody of M., she would be relieved of depression and free of the stresses that cause sleeplessness which lead to illness and thus she would be capable of caring for M. full time;
(5) In the event that she became ill, M. would be looked after by T., her parents, and a support group of friends, a number of whom testified they would undertake such a role.
Barbara MacPherson, qualified as an expert social worker in the field of child protection, testified that M.D. was never able to remain well and stable for a sufficiently lengthy period, in order to put in place an access plan for M..
Doctor Caroline Humphries, a clinical psychologist who was retained by the Society to assess M.D.'s parenting behaviour with L., testified that when M.D. was well she was a competent caretaker, and quite capable of responding to L.'s physical needs, but when ill, M.D.'s judgment was increasingly impaired and she has "less awareness and less resources to give" to L.. In addition, Dr. Humphries testified that M.D. does not have the insight to understand why it is essential for her to remain on medication.
FOSTER HOME:
Ms. MacPherson has, for a period of ten years, worked with the parents with whom M. presently resides, as their home had served as a foster home for other children during that period of time.
She visited the home every three months for ten years and has observed the parents interacting with their other three adopted children.
She testified the family is "deeply attached and committed to M.".
She testified that the "mental health problems that M.D. suffered in 1990, continued to be with her, and pose a serious barrier to her ability to parent". She also referred to M.D.'s lack of insight and understanding of the necessity of taking her medication, and M.'s need for stability.
In view of these factors and also the length of time that has elapsed since M. came to live with the foster parents, M. perceives his foster mother to be his mother.
Ms. MacPherson fully supports the position of the Society and the permanent custody by the foster parents.
Maureen Carew, a social worker, was asked by the Society to carry out an assessment in 1992 with respect to the care taking provided to M. in the foster home.
She testified that M. is very much a part of the home, he has strong attachments to the foster parents who are very committed to him, and that a separation of M. from the environment of the home could be not only detrimental to him, but have a disastrous affect upon him.
THE SOCIETY'S POSITION:
The Society opposes M.D.'s application pointing out M.D.'s long and continuing history of mental illness, her noncompliance with treatment, her lack of insight into her illness, her lack of competency to carry through on her promises, her projection of blame on others, her intellectualization of her illness, and her contradictory behaviour.
The Society stresses the excellent care M. has received in a loving, well adjusted foster home for five and one-half years and the fact that M.D. is essentially "a total stranger" to M..
FINDINGS OF JUDGE DALEY:
M.D.'s application for termination of the permanent care and custody order directed by Chief Judge Black obliged Judge Daley to consider:
(a) whether the circumstances have changed since the making of the order for permanent care and custody;
(b) the child's best interest (s. 48(10) of the Children and Family Services Act, supra).
Judge Daley took the position that:
"If there is no change of the circumstances of the person applying for termination or change of the circumstances of the child, then there are no grounds for terminating the permanent order. The change must be significant, relevant and a positive benefit for the welfare of the child to result in a termination order . . . section 48(10) is a two-step process. First is the proof of a change of circumstances. This requirement is based on the assumption that the original order was made on proper grounds and was made in the best interests of the child, and should not be interfered with, except by appeal, unless the circumstances have changed.
The second step is the application of the child's best interest rule to the change of circumstances. If it can be proven that the change has, or will have a positive effect on the child, then the requirements have been met for the Court to make an appropriate order. It is my view that a determination order requires proof of a change of circumstances before applying the best interests test."
The trial before Judge Daley commenced on February 15, 1993 and after two days of evidence, adjourned until May 25th for two additional days. M.D. was examined in chief and cross-examined on February 15th. By agreement of counsel, she was recalled to give the Court an update on May 25th when she was again examined both in chief and cross-examined. She, as well, gave rebuttal evidence on May 26th.
On February 15th, she testified that her hospitalization in United States at the age of 19 was the result of symptoms deliberately "faked" by her so that she could escape from parental control. During the course of the next seventeen years, up to and including November of 1989 she testified that she continued to fake symptoms of mental instability so that she could have a rest in the hospital, that she underwent eight shock treatments she did not really need "out of curiosity", that she stopped taking medication in order "to make it look real that I was having a breakdown" and that she had "faked symptoms" for such a continual period of time, that it became habit forming.
The evidence that she gave at the resumption of the hearing on May 25th was significantly changed. She testified that the answers she had given under oath on February 16th, a little over three months earlier, were not true and that she had not faked any symptoms over the last five years.
T. testified that he did not believe "she's ever faked symptoms".
M.D.'s ability to care for M. was one of the critical issues before Chief Judge Black in 1990, as well as Judge Daley in 1993.
In her dismissal of M.D.'s appeal from Chief Judge Black's decision (M.D. v. Children's Aid Society (1991), 104 N.S.R. (2d) 388), Judge Bateman (as she then was) stated at p. 396 that the:
"Issue of the mother's credibility is critical to the question of her commitment to maintain treatment which, in turn, was essential to the control of her illness."
Judge Daley made express findings with respect to M.D.'s mental state and credibility. He stated:
"The evidence of the mother and the witnesses does not convince the court on balance that the state of her mental and physical health has improved to any significant degrees since the decision of Chief Judge Black . . . during the acute stage of her cycle, the mother is unable to care for herself . . . (M.D.) continues to suffer from mood disorder mental illness and exhibits the same symptoms as found by Chief Judge Black. She continues to be uncooperative and noncompliant with diagnoses and treatment. She lacks insight and the will to obtain treatment when she is relapsing and when she is ill she is unable to care for herself. She has not proven there are positive or significant changes in her mental condition and the relapses and hospitalizations continue . . . (M.D.) is not a credible witness and attempts to manipulate her evidence to her advantage. In this sense, she presented herself to the court as she did before Chief Judge Black."
After hearing the evidence of M.D. on three occasions, the evidence of two general practitioners, two clinical psychologists, a drug dependency worker, an ordained minister, two psychiatrists, two social workers, T., and three supportive friends of M.D.'s, Judge Daley dismissed M.D.'s application on the grounds that she "has failed to prove there are changes in circumstances to warrant the finding that the best interests of the child would be met by her".
That conclusion was, of course, sufficient to determine the application, but Judge Daley went on to say:
"Further, even if she had so proven, there is insufficient evidence from which I could conclude the child's interest would be best served by being in the custody of the mother . . ."
There was, of course, no burden on the Society to prove that its proposal was in the best interests of M., but it is of significance that Judge Daley went on to conclude:
"The Agency has proved that it is best for the child to remain in its care and be placed for adoption in the present foster home."
SCOPE OF REVIEW:
Clarke, C.J.N.S. in Routledge v. Routledge (1986), 75 N.S.R. (2d) 103, referred to the deference that should be paid to a decision of a trial judge in family matters, at p. 104:
"Competing claims for custody create difficult cases for trial judges. They are equally vexing on appeal. Of necessity, much weight must be given to the conclusions reached by the trial judge. In doing so, an appeal court must ascertain that he had not acted upon wrong principles and that there is evidence at trial to support the conclusions that he has reached. In 1951, Lord Simonds in McKee v. McKee (1951), A.C. 352 put it this way at 360:
'Further, it was not, and could not, be disputed that the question of custody of an infant is a matter which peculiarly lies within the discretion of the judge who hears the case and has the opportunity generally denied to an appellate tribunal of seeing the parties and investigating the infant circumstances, and that his decision should not be disturbed unless he has clearly acted on some wrong principle or disregarded material evidence.'"
Lord Simonds' words are particularly relevant in this case because M.D.'s credibility was very much a live issue.
DISPOSITION:
In the hearing before the Supreme Court of Nova Scotia, Appeal Division, almost two years ago, Matthews, J.A.'s comments on behalf of the Court, although applying to the hearing before Chief Judge Black have, in our opinion, equal applicability to the hearing before Judge Daley. Matthews, J.A. stated at p. 41:
"The trial judge in a lengthy trial, heard and evaluated the evidence. In his 31 page decision he set out the pertinent evidence and thoughtfully considered it. He demonstrated at trial and in his decision, consideration for the appellant and her desire to have custody of her child. He made findings of fact which demonstrated that he had an appreciation of the relevant evidence. He expressed concern about the appellant's credibility. He applied the applicable law."
Almost from the day of his birth, more than five and one-half years ago, M. has spent his life in a "legal limbo of uncertainty" (Y.L. v. Children's Aid Society of Halifax (1993), 122 N.S.R. (2d) 352).
It is in his interests that this uncertainty be brought to an end. It has been conclusively determined that it is in M.'s best interests that the adoption of M. by his foster parents be concluded as soon as possible. In Dr. Carter's words:
"This is his family, these are his siblings."
To paraphrase one of the recitals in the preamble to the Children and Family Services Act, M. has basic rights and fundamental freedoms and a right to special safeguards and assistance in the preservation of those rights and freedoms; the advancement of this appeal by M.D. suggests to us that she has ignored that principle as far as M. is concerned.
After thoroughly reviewing the record and the submissions of M.D. and counsel, both written and oral, we dismiss the appeal without costs.
Hallett, J.A.
Roscoe, J.A.
Pugsley, J.A.