Editor’s note: Corrigendum released on June 9, 2015. Original judgment has been corrected with text of corrigendum appended
DIVISIONAL COURT FILE NO.: DC-14-625
DATE: 2015-06-03
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: K.R., Appellant
AND:
CAS, Respondent
BEFORE: DiTomaso, Harvison Young, Ellies JJ.
COUNSEL: Vicky M. Ringuette, for the Appellant
H. James Wood, for the Respondent
HEARD at Hamilton: June 1, 2015
ENDORSEMENT
[1] This is an appeal of a decision dated October 27, 2014 of Harper J. of the Ontario Superior Court of Justice. Following a motion by the Society, Harper J. granted summary judgment and ordered the child, M.R., born […], 2013, be made a Crown ward, without access. The appellant (the child’s mother) seeks to have this Order dismissed. The appellant also seeks to adduce fresh evidence.
[2] The appellant raises two grounds of appeal. First, she submits that her counsel at the summary judgment motion failed to provide effective representation which resulted in a miscarriage of justice. She submits that the representation was inadequate largely because counsel failed to request disclosure from the CAS prior to the summary judgment motion and also because she failed to request an adjournment of the date set for the motion due to the fact that the appellant mother was incarcerated at the time, making it hard to finalize documents necessary for the hearing.
[3] Second, she submits that the motion judge erred in failing to consider sibling access as a factor in the course of his access decision.
[4] The appellant seeks to admit fresh evidence in support of the ineffective representation ground. On behalf of the appellant, Ms. Ringuette submits that the fresh evidence, for the most part, consists of documents (such as case notes made by the social worker and emails) that would have been disclosed to the appellant’s counsel at the time had it been requested. Such disclosure would have, in her submission, enabled counsel to raise questions with the CAS counsel about the accuracy or completeness of the CAS material put before the motion judge.
[5] After hearing brief submissions from the parties, we advised the parties that we would admit the fresh evidence on the basis that it is relevant to the central submission of the inadequacy of counsel and that it would be difficult to assess this submission without it.
The standard of review
[6] The standard of review is as set out in Housen v. Nikolaisen 2002 SCC 33, [2002] S.C.J. No. 31.
The inadequacy of counsel submission
[7] There is no dispute as to the test to be met in establishing the ineffective assistance of counsel: see R. v. Archer 2005 36444 (ON CA), [2005] O.J. No. 4348 (OCA). Doherty J. set the test out in paras. 119 and 120 of that decision and it may be summarized as follows:
First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities;
Second, the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence; and
Third, the appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different.
[8] We are of the view that the appellant has not met this test. With respect to the second limb of the test, we are mindful of Doherty J.’s caution at para. 119:
Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997), 1997 2426 (ON CA), 114 C.C.C. (3d) 225 at 247:
An appellate court’s review of trial counsel’s performance should be deferential. … deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable.
[9] As Mr. Wood submitted for the CAS, there is no evidence before us as to the standards of practice that could ground the submission that the former counsel fell below it in failing to request disclosure from the CAS.
[10] Nevertheless, even if the appellant has met the onus of showing that the former counsel’s failure to request disclosure constituted incompetent representation, which we do not find necessary to determine, we are not satisfied that the appellant has established that there is a reasonable possibility that the result could have been different. Having reviewed the fresh evidence filed on this appeal, we are unable to conclude that there is any likelihood that it would have affected the outcome of the summary judgment motion for a few reasons.
[11] First, counsel for the appellant emphasized that the case notes contained in the fresh evidence contain a number of references to positive interactions that the appellant had with the child. However, the motion judge’s reasons take that into account. It is clear that the record before him did include such evidence. He considered it explicitly, and accepted that the visits with the mother were “noted by the Society to be good visits with the mother acting appropriately and the child interacting positively to the mother”. (Reasons for Decision, para. 11) In short, the motion judge had already taken this factor into account and we do not see any basis to support the view that the fresh evidence could have changed the result.
[12] Second, Ms. Ringuette took the Court to numerous drug test reports since April 2014 that showed negative results contained in the fresh evidence submitted. However, all but one of these (all of which pre-date the summary judgment motion) were before the motion judge. The motion judge was alive to these. He noted that she has had years of struggles with the use of cocaine, marijuana, various opiates and other addictive substances, and noted that over the years she has had “limited success” in being consistently compliant with her counselling and abstinence for addictive drug use. He found that despite her claim that she had been clean since April 2014 she had tested positive for high levels of marijuana in July 2014, something that he found concerning given that she spent many days during that period in custody. In short, we do not find that the missing test reports would have made any difference in light of the rest of the record and reasons given by the motion judge.
[13] Similarly, the failure of the lawyer to provide all of the various certificates of attendance and completion of programs offered would not have made any difference to the outcome of the motion. The motion judge was clearly aware that the appellant had made or at least started to make attempts at changing the pattern of her substance abuse issues and other destructive conduct. The problem, as his reasons clearly recognize, is a pattern of relapse and failure to consistently comply with programs and abstinence.
[14] In summary, we do not find that any of the materials provided by way of fresh evidence would have had any likelihood of changing the result of the summary judgment.
[15] With respect to former counsel’s failure to request and adjournment of the summary judgment motion, we do not agree that this met the Archer test. First, given the importance of timely resolution of child protection matters and the fact that this child would have been already 17 months old as at the first scheduled date for the motion, it is not a foregone conclusion that such an adjournment would have been granted. Second, it is not at all clear, particularly given the fresh evidence submitted on this appeal, that an adjournment would have resulted in a record that would have led to a different result on the motion. We note in passing that the motion was in fact adjourned for 2 weeks beyond the originally scheduled date to October 2, 2014, apparently due to counsel’s vacation plans, so that there was in fact some extra time to prepare beyond that originally set in the timing order. In short, we do not find that there is any likelihood that a miscarriage of justice resulted from the motion judge’s failure to request an adjournment of the original motion date.
[16] In summary, we do not find that the appellant has established that the allegedly inadequate representation of appellant’s former counsel resulted in a miscarriage of justice because we are unable to find that any of the fresh evidence to which the court’s attention was drawn would have made any impact on the result reached on the motion.
Access
[17] Finally, the appellant submits that the motion judge erred in his treatment of access. She submits that he erred in failing to address the issue of sibling access. The older child, M., was placed in the custody of her maternal grandmother in April 2014 and the child M.R. has not seen her since that time.
[18] We do not agree that the motion judge erred with respect to his treatment of sibling access. Neither party raised the issue of sibling access before the motion judge. The appellant does not allege that counsel’s failure to raise this before the motion judge constituted incompetence. There is clear authority that failing to address the issue of sibling access is not an error of law that justifies interfering with a motion judge’s decision on crown wardship in such circumstances: see CAS of Toronto v. M.S. [2012] O.J. No. 6132 ONSC 6560 (Ont.S.C.); see also CAS of Toronto v. M.S. [2010] O.J. No. 2876 [ [aff’d, 2011] OJ No. 1614.
- The appellant also submits that the motion judge erred in failing to articulate his reasons for his decision that the mother should not have access. Again, we disagree. The motion judge did so at paras. 28 and 29:
This child needs permanency planning. He [sic] has been in care for approximately 15 months. He [sic] is doing well in his foster placement and there is every reason to believe that he [sic] will thrive in a permanent, loving and nurturing home.
Although the access that has taken place has shown to be appropriate and a positive, that alone does not amount to access that, would be meaningful and beneficial to the child. In my view access would impair permanency planning in the circumstances of this case.
[19] Similarly, we do not agree that the motion judge failed to consider the best interests of the child in the course of making his access determination. Although he did not specifically reference the child’s best interest when determining the access issue, it is very clear from a reading of the decision as a whole that this was central to his decision. He made reference, for example to “the underlying theme for child time sensitivity when considering the protection, safety and well-being of children.” The motion judge also found that “there are no details or no evidence that gives me any degree of comfort that the child’s needs can be met.” The motion judge further stated, “The risks of harm cannot be reduced from their high level within any reasonable period of time” and that the child required “permanency planning”. The term “best interest of the child” is mentioned repeatedly throughout the decision. This ground of appeal must fail.
[20] For the foregoing reasons, the appeal is dismissed. Having heard the parties’ submissions as to costs, we would make no order as to costs.
Di Tomaso J.
Harvison Young J.
Ellies J.
Date: June 3, 2015
DIVISIONAL COURT FILE NO.: DC-14-625
DATE: 2015-06-09
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: K.R., Appellant
AND:
CAS, Respondent
BEFORE: DiTomaso, Harvison Young, Ellies JJ.
COUNSEL: Vicky M. Ringuette, for the Appellant
H. James Wood, for the Respondent
CORRIGENDUM
Corrected decision: The following paragraph replaces the corresponding paragraph in the original endorsement issued on June 3rd, 2015.
[21] This is an appeal of a decision dated October 27, 2014 of Harper J. of the Ontario Superior Court of Justice. Following a motion by the Society, Harper J. granted summary judgment and ordered the child, M.R., born […], 2013, be made a Crown ward, without access. The appellant (the child’s mother) seeks to have this Order dismissed. The appellant also seeks to adduce fresh evidence.
Di Tomaso J.
Harvison Young J.
Ellies J.
Date: June 9, 2015