2013 ONSC 702

DIVISIONAL COURT FILE NO.: 12-DC-1807

DATE: 2013/01/31

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: M.F., Appellant

AND:

Family and Children Services of Lanark, Leeds and Grenville, Respondent

BEFORE: Reilly, Aston and Herman, JJ.

COUNSEL: M.F., self-represented

Cheryl Hess, for the Respondent

HEARD in Ottawa: January 29, 2013

ENDORSEMENT

Aston J.

Background and Issues

[1] Ms. M.F. appeals the November 18, 2011 judgment of Blishen J., rendered after a thirteen day child protection trial.

[2] Ms. M.F.’s three children (now 13, 10 and 8 years of age) were made Crown wards. There is no court ordered access to the two younger children, for whom adoption placement is planned. The judgment grants Ms. M.F. a limited right of access to the oldest child, at the Society’s discretion.

[3] As a preliminary matter, Ms. M.F. sought to introduce fresh evidence on this appeal. Her request was not supported by an affidavit attesting to when the evidence was discovered or discoverable, or explaining why it was not introduced at trial. However, during the course of her submissions it became apparent that, for the most part, this new evidence was available at the trial, or could have been. The material she asked this court to accept also included information to support a claim her parenting capacity has improved since the end of the trial.

[4] We ruled that the new evidence is not admissible on appeal without giving reasons at the time. We therefore first address our reasons for that ruling.

[5] Introduction of new material that was available at trial would be prejudicial to the respondent, who has no opportunity to cross-examine on it or to respond with evidence of its own. Introduction of new material of improved parenting capacity subsequent to the trial would turn this appeal process into a trial process. That is not our function. Moreover, most of the “evidence” tendered on the appeal is not in the form of admissible evidence. Rather it consists of publications, letters, notes and reports, some of which are not even signed much less under oath. Though mindful that one of the grounds of appeal relied upon by Ms. M.F. is the ineffective representation by her trial counsel, it is quite clear that the tendered evidence does not satisfy the legal test for the introduction of fresh evidence on appeal.

[6] Turning then to the appeal itself, the appellant’s grounds for appeal may be summarized as follows:

(i) the trial judge erred in law in allowing Dr. Lynch’s report to be entered as evidence and considering it;

(ii) the trial judge placed undue emphasis on the evidence from Dr. Lynch, while disregarding competing evidence from Dr. Brook-Williams and Dr. Bhatla;

(iii) the trial judge did not consider all the material evidence and\or misapprehended material evidence;

(iv) there is a reasonable apprehension of bias on the part of the trial judge;

(v) the appellant received ineffective and deficient legal counsel at the trial.

Standard of Review

[7] The standard of review on appeal from a trial judge’s decision is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. In summary: on a pure question of law the basic rule is that the trial judge must be correct and an appellate court is free to replace the opinion of the trial judge with its own. The standard of review for findings of fact is that such findings, including those that are based on inference, are not reversible unless it can be established that the trial judge made a “palpable and overriding error”. Matters of mixed fact and law lie along a spectrum, but unless a legal principle is readily extricable, the trial judge’s findings are approached with deference.

[8] In the context of a child protection case the Ontario Court of Appeal has stated that an appeal court “…can interfere with the trial judge’s conclusion only if he [or she] made an error in principle, misapprehended the evidence or arrived at a clearly unreasonable result”. See Children’s Aid Society of Toronto v. K.K., (2006) 22 R.F.L. (6th) 342, 2006 2755 (Ont. C.A.) at paragraph 11.

Did the trial judge err in law in allowing Dr. Lynch’s report to be entered as evidence and in considering it?

[9] In coming to her decision, the trial judge relied heavily upon a court ordered parenting assessment by Dr. Patrick Lynch. Though it was not the only evidence relied on by the trial judge, the decision cannot stand if that evidence was not properly admissible.

[10] The report from Dr. Lynch is the product of an order by Quigley J. pursuant to s. 54 of the Child and Family Services Act, made shortly after this proceeding started. It is important to note that it is a court ordered assessment authorized by the legislation, rather than simply an expert report presented by one of the parties. Under s. 54(6) the report “is evidence and is part of the court record of the proceeding”.

[11] The appellant submits that Dr. Lynch’s report does not comply with rule 53 of the Rules of Civil Procedure. However, this case is governed by the Family Law Rules. Rule 20.1 of the Family Law Rules, the companion to rule 53 of the Rules of Civil Procedure, came into force September 1, 2011; that is to say after Dr. Lynch had presented his report and had testified at trial, but before the end of the trial. The record indicates that the trial judge and counsel all turned their attention to the new rule respecting the form and content of expert reports and its requirements. There is an apparent conflict between the new rule and s. 54(6) of the Child and Family Services Act, mentioned above. We do not need to address that issue in this case because Dr. Lynch was cross-examined at length before rule 20.1 came into effect but with the requirements of the rule in mind. It was open to the trial judge to admit his report and his evidence notwithstanding any defect of form, even assuming rule 20.1 could be said to apply to a s. 54 report.

[12] Though Dr. Lynch incorrectly addressed his written report to the Children’s Aid Society instead of addressing it to the court, nothing turns on that in our view. In and of itself that error does not infer any bias on his part. The issue was covered in his cross examination. We would not interfere with the trial judge’s finding that Dr. Lynch’s mistake with the address was essentially of no consequence. Counsel for the appellant had a copy of the report well in advance of the trial. The trial judge did not err at law in admitting the report into evidence and giving it consideration in her decision making process.

Did the trial judge err in giving undue weight to the evidence of Dr. Lynch?

[13] The appellant introduced reports from Dr. Brook-Williams and Dr. Bhatla that were intended to contradict or undermine some of the seminal aspects of Dr. Lynch’s report, in particular Dr. Lynch’s diagnosis of Ms. M.F. as a person with a borderline personality disorder. The trial judge took into account the limited qualifications of these two competing medical reports and the fact that neither Dr. Brook-Williams nor Dr. Bhatla was made available for cross-examination. Moreover, their reports were based entirely on self-reporting from Ms. M.F., whereas Dr. Lynch’s report was based upon not only Ms. M.F.’s input, but extensive collateral information from other witnesses, documents which included official records, and actual psychological testing. Dr. Lynch gave credit to Ms. M.F. where he thought credit was due. Moreover, Dr. Lynch’s evidence was tested by cross-examination.

[14] It was open to the trial judge in the fact-finding process to disregard the reports from Dr. Brook-Williams and Dr. Bhatla.

[15] Dr. Lynch’s report is not just lengthy and thorough, it is clear in its conclusions. In giving his conclusions very significant weight the trial judge did not commit any reversible error.

Did the trial judge ignore or misapprehend material evidence?

The appellant’s oral submissions highlighted evidence not specifically referred to in the reasons of the trial judge. She also cited examples of evidence she contends the trial judge misapprehended. A trial judge is not required to reference or resolve every piece of evidence. Notwithstanding the specific references of the appellant in her Factum and in her oral submissions, we are unable to identify any significant evidence that was ignored or misapprehended.

Did the trial judge demonstrate bias in favour of the Society?

[16] Though this ground of appeal is set out in the Notice of Appeal and in the Factum of the appellant, she did not rely upon it in her oral submissions. There is nothing we can see that would satisfy the well known legal test for reasonable apprehension of bias. On the contrary, the trial judge was flexible in the way she dealt with the appellant and her counsel throughout this lengthy trial. The record demonstrates that the trial judge gave patient, conscientious and serious consideration to any solicitor and client issues brought to her attention.

Should a new trial be ordered because the appellant received ineffective and deficient legal counsel?

[17] It is readily apparent to us that there was friction between the appellant and her counsel during the trial and that she was dissatisfied with some aspects of his representation. However, the appellant has failed to establish that her counsel’s acts or omissions rise to the level of professional incompetence. The trial judge on occasion took breaks so that the appellant and her lawyer were afforded sufficient time to communicate over issues of evidence, strategy and the like. A trial is not a rehearsal for a re-trial. The appellant had a fair trial.

Conclusion

[18] The trial judge applied the correct legal test and did so in a manner that took into account relevant factors and principles. The findings of fact are supported by evidence, and there is no demonstrated error that would permit appellate intervention. The rationale for the decision is explained in a transparent and intelligible fashion.

[19] The appeal is dismissed. The Respondent does not seek costs. None are ordered.

Aston J.

I agree Reilly J.

I agree Herman J.

Date: January 31, 2013