WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: 242/08 Date: 2012-06-04

Ontario Court of Justice

Re: Children's Aid Society, Region of Halton v. K.C.M., N.M. et al.

Before: S. O'Connell

Counsel:

• D. Skrow, for the Applicant
• K.C.M. (Respondent mother) – acting in person
• Mr. D. Hotz - counsel for N.M. (Respondent father of E.M. & L.M.)
• J.C. (Respondent father of T.M.) - not present
• D.F. (Respondent father of L.F.) - not present

Heard On: May 31, 2012

Endorsement Released: June 4, 2012

Endorsement

[1] On May 31, 2012, a court date was set "to be spoken to" regarding the status of the respondent mother's ("K.C.M.") legal aid certificate for a lawyer to represent her in this child protection proceeding, which has been scheduled to proceed to a trial during the week of August 13, 2012.

[2] On that date, the court learned that K.C.M.'s legal aid certificate is in good standing, however, the Area Appeals Committee refused her appeal of the decision by this region's District Area Director, who refused to provide a new lawyer for the mother after her lawyer was removed as counsel of record. According to the Area Committee's letter dated May 3, 2012, "Legal Aid Ontario only allows a change of lawyer in exceptional circumstances. A breakdown in the lawyer and client relationship is not sufficient reason for Legal Aid Ontario to provide a change of lawyer."

[3] On February 9, 2012, K.C.M.'s lawyer, Mr. Jackson was removed as counsel of record by a court order at his request because there was a breakdown in the solicitor-client relationship, according to the evidence filed. He was no longer willing or able to represent K.C.M. The court granted Mr. Jackson's request on February 9, 2012, six months before the scheduled trial dates. The court considered this period a reasonable amount of time for K.C.M. to retain a new lawyer and for her new lawyer to prepare for trial. K.C.M. had no control over this decision.

[4] Neither K.C.M. nor the court anticipated that Legal Aid Ontario would refuse her request for a new lawyer, notwithstanding the fact that her former lawyer was removed as counsel of record at his request well in advance of the scheduled trial dates. The refusal to grant a change in lawyer has made it impossible for K.C.M. to retain a lawyer to represent her in this proceeding.

[5] K.C.M. has appealed the Area Committee's decision to LAO's provincial head office and was again advised that her request for a change of lawyer was denied. All of her requests to appeal this decision have apparently been exhausted.

[6] K.C.M.'s only source of income is social assistance and this matter has been set for a complicated crown wardship, no access trial for the purpose of adoption, estimated to be at least five days in length.

[7] K.C.M. needs counsel and she has a constitutional right to counsel in this proceeding. In my view, this court has jurisdiction to make an order appointing publicly funded counsel in a child protection proceeding, in light of the Supreme Court of Canada's decision in New Brunswick (Minister of Health and Community Services) v. J.G., [1999] 3 S.C.R. 46. In that case, the Court held that the principles of fundamental justice entitle a parent involved in child protection proceedings to a fair hearing, which may include a right to be represented by publicly funded counsel where this is necessary for effective presentation of the parent's case. See also Windsor-Essex Children's Aid Society v. Yvonne C. and David Vernon B., 2010 ONCJ 82; and Family and Children's Services of Guelph and Wellington County v. Kelly F. and Gavin F..

[8] In New Brunswick (Minister of Health and Community Services) v. J.G., supra, the Court held that publicly funded counsel is available when a parent can establish the following circumstances:

(a) the court might make an order that would infringe the claimant's right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms, Part 1 of Schedule B to the Canada Act 1982, c. 11 (U.K.);

(b) representation by counsel is necessary for the claimant to have a fair hearing;

(c) legal aid has been refused and all possible internal appeals have been exhausted; and

(d) the claimant does not have the means to employ counsel.

[9] All four criteria appear to exist in the circumstances of this case. However, before I make this determination, and consider appointing publicly funded counsel for the respondent mother in this proceeding, I invite representatives from Legal Aid Ontario and the Attorney General for Ontario, to make submissions on this issue.

[10] Therefore, this hearing is adjourned to June 21, 2012 at 10:00 a.m. in Milton Courtroom number 3, so that representatives from Legal Aid Ontario and the Attorney General of Ontario, if necessary, can attend to make submissions regarding the court's application to appoint publicly funded counsel for the respondent mother in this proceeding.

[11] Court staff is directed to immediately deliver a copy of this ruling to the District Area Director for Legal Aid Ontario for this region.

Justice Sheilagh O'Connell

Date: June 4, 2012