“The standard of review on an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error.
On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
With respect to findings of fact, an appellate court “may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” (H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 4) [emphasis in original]. The Supreme Court of Canada went on to say (at para. 55) that the language of “palpable and overriding error” and “clearly wrong” found in the case law “encapsulate the same principle: an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”
In child protection cases, appellate courts owe a high degree of deference to the trial judge’s decision. As the court stated in in P. (D.) v. S. (C.), 1993 CanLII 35 (SCC), [1993] 4 S.C.R. 141 at p. 192: “On issues of credibility, a trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings.” (See also Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at para. 33; Children’s Aid Society of Toronto v. S.A.C., 2005 CanLII 43289 (ON SC), [2005] O.J. No. 4718 (S.C.) at paras. 10 and 12; aff’d 2007 ONCA 474).
Finally, as the court stated in Children’s Aid Society of Toronto v. V. L., 2012 ONCA 890 at para. 15; leave to appeal refused [2013] S.C.C.A. No. 1112: “the court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.””
N.P.B. v. Catholic Children’s Aid Society of Toronto, 2020 ONSC 5774 (CanLII) at 5-9