WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,

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

87(8) Prohibition re 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.

87(9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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.

ONTARIO COURT OF JUSTICE

Date: September 13, 2018

Court File No.: Toronto CFO-13-10078-B3

BETWEEN:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

Applicant

— AND —

M.C.

Respondent

— AND —

J.F.

Respondent

— AND —

B.F.

Respondent

Before: Justice Alex Finlayson

Heard on: May 14, July 9 and September 4, 2018

Reasons for Judgment released on: September 13, 2018

Counsel:

• Lauren Stringer — counsel for the applicant society
• Michael Keyshawn Anderson — counsel for the respondent, M.C.
• Lance Carey Talbot — counsel for the respondent, J.F.
• Anthony Macri — agent for the respondent, B.F., for the purposes of this motion only
• Sheena Scott and Patric Senson — counsel for the Office of the Children's Lawyer, legal representative for the child, J.C. (a.k.a. H.C.)
• Jeffrey Costain — counsel for the Ministry of the Attorney General, Crown Law Office Civil, for purposes of this motion only
• Deborah Stewart — counsel for the foster parents, C.A. and E.A.

ALEX FINLAYSON J.:

PART I: OVERVIEW

[1] There is a protection application before this Court concerning a boy named H.C., who is now 4 years old. This proceeding began four days after H.C.'s birth. The Applicant, Catholic Children's Aid Society (the "Society") intends to bring a summary judgment to ask that H.C. be placed in its extended care, with H.C. having no access to his parents. Subject to comments that I make later in these reasons about next steps, the summary judgment motion is currently scheduled to proceed before me on two days in October. At this point, the parties and the foster parents anticipate that there will be a 5 day trial thereafter, which I have booked to proceed before me in December. What will be in issue at that trial may depend in part on the outcome of the summary judgment motion, if that motion proceeds.

[2] The child's paternal grandmother, B.F., brings this motion in advance of the intended summary judgment motion and the trial to ask the Court to grant her state funded counsel pursuant to sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11 (the "Charter"). Alternatively, the grandmother asks the Court to appoint amicus curiae. The grandmother has indicated that she intends to seek an adjournment of the currently scheduled summary judgment motion. She wants her intended counsel, Mr. Macri, to help her prepare for it, and she says he will need more time to prepare, if I appoint him as her counsel or amicus.

[3] The Attorney General for Ontario opposes the grandmother's request for state funded counsel. Counsel for the Attorney General argues that this case does not fit within the framework required for this Court to order state funded counsel as articulated by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 ("G.(J.)"). The Attorney General takes no position respecting the alternative request for amicus.

[4] Neither the Attorney General for Canada nor Legal Aid Ontario attended the motion, nor made submissions.

[5] By prior Order of this Court, H.C.'s foster parents are participating in this proceeding. They have also participated in this motion to an extent. The Society's and the foster parents' positions are partially and perhaps substantially aligned in this case. And as I will explain, it has come to light that the Society has been paying for the foster parents' lawyer. This is unusual. To date, the Society has paid the foster parents' counsel almost $50,000 in legal fees, and there is an ongoing commitment by the Society to continue the funding. This creates both a perception of unfairness, and actual unfairness.

[6] Neither the Society, the foster parents, nor the parents said they were taking a position regarding the grandmother's requests that the Court appoint either counsel or amicus. They had three opportunities to participate more fully in this motion but chose not to. Other than when I asked specific questions of them and except when I invited further submissions on certain points, they chose not to make oral submissions. Yet in essence they did take a position. Although they said they were not taking a position or making oral submissions, simultaneously, both the Society and the foster parents filed affidavits that were put before me for this motion, and they, along with the parents, participated in the creation of a Statement of Agreed Facts. I considered this written material. I address its impact later in these reasons.

[7] In her initial Notice of Constitutional Question, the grandmother asserted that her, and H.C.'s section 7 right to security of the person had been infringed. The Office of the Children's Lawyer (the "OCL"), who I appointed prior to hearing this motion, takes no position concerning the grandmother's claim respecting her section 7 right (nor concerning the request for amicus), but it filed a separate Notice of Constitutional Question on behalf of the child. The OCL says that the grandmother does not have standing to assert a claim on behalf of the child, and argues that it should do so.

[8] On the merits, the OCL argues that the child's section 7 right to security of the person has been infringed, but for different reasons than those stated by the grandmother. It argues for an interpretation of the child's section 7 right through the lens of section 15 of the Charter. And to remedy the breach of the child's right, it says that the Court should award the grandmother state funded counsel.

[9] A Charter claim must be decided in context.

[10] It is indisputable that the removal by a Society of a child from the child's parent may have a serious impact upon him or her, including to his or her psychological integrity. The Court must always ensure that its processes are fair. In the child protection context, this is particularly so when the state intervenes in a serious way into the life of a child, who is particularly vulnerable and who is entitled to enhanced procedural protections at law.

[11] In considering the issues raised by this motion, this Court must not ignore that members of some of the most disadvantaged and vulnerable groups in society are disproportionately affected by child protection proceedings. And there is a widely acknowledged, serious access to justice problem in Canada. Legal aid funding is only available to the poorest members of Society. Many in Canada make too much money to get legal aid, yet they cannot afford a lawyer. It is accepted that having legal assistance is correlated to better outcomes in a case.

[12] I agree with the OCL that the grandmother does not have standing to advance a Charter claim on behalf of the child on the facts of this particular case. However, I find that the OCL does have that standing. And I am finding that the child's section 7 right to security of the person will be infringed in a manner that does not accord with the principles of fundamental justice if state funded counsel is not made available to the grandmother. As I will explain, there is distinction in the law that limits who has standing to claim a Charter remedy. But if, as I find in this case, the child's claim is properly advanced and the breach is established, another person, in this case the grandmother, may benefit from the remedy in appropriate circumstances to the extent that it redresses the breach. As such, and based on the arguments that I heard and did not hear, I leave it for another day for another Court to determine whether an extended family member, such as a grandmother, has a section 7 right that is infringed.

[13] If I am wrong respecting the Charter analysis, then I would have appointed amicus to assist the Court, because ultimately I would have found it to be in H.C.'s best interests to do so. However, in the unique circumstances of this case, I find amicus to be an inferior remedy to state funded counsel.

[14] This decision is lengthy. I address the many issues raised on this motion in the following order.

[15] First, I begin by setting out the factual matrix in which this motion was brought, including summarizing the prior proceedings and providing an overview of the various positions taken, both in this motion, and to be taken in the next steps in the case.

[16] I then summarize the issues raised in the two Constitutional Questions before the Court and address whether the grandmother has standing to claim a remedy based on a breach of the child's Charter right.

[17] I then deal with and resolve the Court's concerns about the social and legislative context evidence put before it, the caveats that certain motion participants attempted to place on that evidence, and I consider the impact of some of the evidence proffered by two of the motion participants in anticipation of the context evidence.

[18] Next I set out the approach to analyzing section 7 that I have followed. In doing so, I consider the social and legislative context evidence before me and certain legal principles regarding the scope of section 7, and then I discuss generally how section 7 operates in a case where state funded counsel is claimed.

[19] Having done that, I address the arguments about the section 7 rights that have been claimed. Having found the child's section 7 security of the person right is engaged, I find that the section 7 infringement is not in accordance with the principles of fundamental justice and I also find that the Charter violation is not saved by section 1. I then determine that state funded counsel for the grandmother is required to redress the breach of the child's right.

[20] In awarding this remedy, I consider the apparent distinction at law that limits who has standing to claim a remedy, versus who may enjoy the benefit of the remedy if the claim is properly advanced and established. In these reasons, I find that the section 24(1) remedial power does not preclude the grandmother from benefitting from the remedy to redress the breach of the child's right. I find that awarding state funded counsel to the grandmother is consistent with the several criteria that apply when the Court crafts a remedy, as set out by the Supreme Court in Doucet-Boudreau v Nova Scotia (Department of Education), 2003 SCC 62, [2003] 3 S.C.R. 3.

[21] And finally, I address the alternative issue of amicus. I do so in case this decision is reviewed by an appellate court and that court decides that my decision to make an order for state funded counsel was wrong. I do so because I would have appointed amicus in the alternative.

PART II: IMPORTANT FACTS

A. The Child and His Biological Family of Origin

[22] It is common ground that H.C.'s parents are the respondent, J.F. ("the father") and the respondent, M.C. ("the mother"). When the Society commenced the proceeding, it was initially unaware that J.F. was the father, but this was revealed a few months later following a DNA paternity test.

[23] H.C. has two older half-siblings, J.Ca., now age 12, and A.C., now age 9. They were made crown wards in prior proceedings in 2011, after which they were adopted by the foster parents, C.A. and E.A.

[24] M.C. has a third child, N.C. (who was H.C.'s third older half-sibling), but tragically N.C. was killed on July 14, 2013, when he was just two years old. J.F. and M.C. were both charged with the second degree murder of N.C. Until recently, both have been in custody.

[25] In or around early 2017, the mother pleaded guilty to manslaughter. On January 5, 2017, she was sentenced to six years in prison following a joint submission of the crown and defence. She is now out of prison due to the credited time she received for her pre-trial custody. She may be deported back to the Dominican Republic, her country of origin.

[26] J.F. also pleaded guilty to manslaughter at the outset of his trial in the first half of 2017. On June 22, 2017, Molloy J. sentenced him to 9 years in prison, but he too was credited for pre-trial custody. He received an equivalent credit of 6 years.

[27] At the time of the motion before me, the father was still incarcerated. However, he may now be eligible for early release. What contact he will have with H.C. and the extent to which the grandmother is part of his release plan are important issues that are being raised in this case.

B. The Respondent Grandmother

[28] B.F. is H.C.'s paternal grandmother. She is 59 years old. She is from St. Vincent and the Grenadines. She comes from a large family with 9 siblings (herself included). Her extended family includes over 20 nieces and nephews and more great nieces and nephews.

[29] The grandmother came to Canada when she was 23 years old and worked as a nanny for 5 years. She then worked in a hospital. In 1998, she obtained a part-time job in the Ontario Public Service.

[30] The grandmother currently works as a Court Services Officer, Level 2, Deputy. She has held this position since 2003. She is guaranteed 28.75 hours per week at an hourly rate of $24.00 per hour. For the last three years, she has earned about $41,000 on average. She also does volunteer work as a chaplain and minister with inmates.

[31] The grandmother has a high school diploma that she obtained after coming to Canada. She took some college courses but did not receive a diploma.

[32] Initially, B.F. did not know she was H.C.'s grandmother given the lack of clarity about paternity when this case began. However, as set out above, paternity was confirmed a few months into this proceeding.

[33] In 2016, the Society completed its assessment of the grandmother for the adoption of H.C. The grandmother's adoption assessment was approved.

[34] However, the Society's plan in this case is to seek an order that H.C. be in its extended care for the purpose of adoption by the foster parents. They too have been assessed and approved to adopt H.C.

C. The Child's Background and Culture

[35] H.C. has a mixed heritage. The father (and the grandmother) are from St. Vincent and the Grenadines. Again, the mother is from the Dominican Republic.

D. The Foster Parents

[36] After H.C. was taken to a place of safety from the hospital at birth, he was placed with the foster parents. The mother had requested that H.C. be placed there because that is where H.C.'s older half-siblings live. And so the Society arranged for this. Consequently, H.C. has lived with the foster parents for most of his life.

[37] The foster parents are first generation Canadians of Caribbean descent. The countries of origin of their families are different from H.C.'s. The foster mother's family comes from Barbados and the foster father's family comes from Guyana.

E. The Grandmother's Involvement in these Proceedings and Her Relationship with H.C.

[38] A few months after this case began, the grandmother advised that she would like to present a plan of care for H.C. She also requested access to him.

[39] There has never been any order granting the grandmother specified access to H.C. and in fact, until January 23, 2018, there had been no access order at all concerning the grandmother. Rather, the grandmother's access has always been in the Society's discretion and for most of this case, this was entirely outside the ambit of a court order. Then, three years into the litigation, the grandmother launched an access motion that Justice Scully heard over two days in December 2017 and January 2018. The grandmother did so after the Society reduced her access for various reasons.

[40] On January 23, 2018, Scully J. continued the status quo leaving the grandmother's access in the Society's discretion, adding a term that access should also be in consultation with the foster parents.

F. The Grandmother's Access to H.C.

[41] In this legal framework, the grandmother had her first access visit with H.C., supervised by the Society, in September of 2014. The visits then changed to unsupervised visits, and then to visits in her home on a bi-weekly basis on alternate Saturdays for the full day. The grandmother also had visits in the community with H.C. in addition.

[42] Then, in or around the summer of 2017, the Society exercised its discretion to reduce the grandmother's visits to H.C. to once per month. As I will explain, the parents' criminal cases resolved in the midst of the first trial of this case, resulting in a delay of the trial. On June 28, 2017, the trial was not completed and the trial judge was retiring. A mistrial was declared.

[43] In the evidence before me on this motion, the grandmother says that the Society's decision to reduce her access was made when it became clear that a second trial was not imminent. She also says that there was no child focused reason to reduce her access. She feels that the Society reduced her access to bolster the foster parents' chances of having H.C. placed with them.

[44] Back in 2017, after the Society took this step to reduce her access, the grandmother brought motions to be added as a party, for access to H.C., for disclosure and for other related orders. There were also cross-motions before the Court launched by the other parties and the foster parents, all related to these issues.

[45] Later in these reasons, I summarize the prior proceedings in this case. As I will explain, leading up to the motions that were ultimately disposed of on January 23, 2018, the Court made broad orders prohibiting contact between H.C. and the father, both directly and indirectly, and prohibiting contact between the father and others involved in this case.

[46] In the evidence before me on this Charter motion, the Society explains its reasons for reducing the grandmother's access. The Society sets out the concerns it says it had about the grandmother's contact with H.C. back then. This includes the Society's allegation that the grandmother had allowed H.C. to have telephone contact with his father.

[47] According to Children's Aid Society worker Ms. Ianello's affidavit sworn June 29, 2018, after Justice Scully's access order of January 23, 2018, the grandmother stopped having access to H.C. for a few months. The Society says the grandmother refused to see the child unless the visits were unsupervised. However, some visits and telephone contact have since resumed.

G. The Foster Parents and the Grandmother Have Been Granted Participatory Rights and Party Status

[48] Both the grandmother and the foster parents have the right to participate in this proceeding as a result of three different Orders of this Court.

[49] Regarding the foster parents, although they are not full-fledged parties, by Orders of Justice Scully dated September 29, 2016 (made prior to the first trial) and February 9, 2018, they have been given various participatory rights, including the right to certain disclosure, and the right to cross-examine the father, the grandmother and a Society adoption worker. They may also cross-examine the mother if she presents an access plan at the access trial that is contemplated.

[50] Counsel for the foster parents said the foster parents will be calling their own evidence. They will be making submissions. I am told they have already filed material for the intended summary judgment motion. The OCL served a Request to Admit. The foster parents have responded to it.

[51] The OCL objected to their participation in this motion. I did not have to rule on whether they are entitled to participate, because at the outset of the motion, I was told that they would not be making submissions. Yet at the May 14, 2018 Court date, counsel for the foster parents told the Court that she would be drawing facts to the Court's attention for this motion. As I explained earlier, the foster parents have filed affidavit material for this motion and participated in the creation of a Statement of Agreed Facts. I come back to this later in these reasons when addressing certain evidentiary issues.

[52] Regarding the grandmother, on consent of the Society and the father, and not opposed by the mother and the foster parents, on July 17, 2017 (after the mistrial and after the Society reduced the grandmother's access), Justice Scully added her as a party to this proceeding.

H. The Grandmother's Efforts to Retain Counsel

[53] In the beginning of the case, the grandmother retained a lawyer to assist her. She paid him $3,000.00. The lawyer then told her he was changing the nature of his practice and they stopped working together.

[54] For a long period of time after that, the grandmother did not have counsel. Then in 2017, she called Legal Aid Ontario for assistance but she was told that she earned too much money to qualify for a legal aid certificate.

[55] In July 2017, the grandmother retained a different lawyer to assist her to gain party status, and to pursue increased access to H.C. She advised the lawyer that she only had $5,000.00 for legal fees, yet she says the fees quickly escalated to over $15,000.00 anyway. She has only been able to pay him $3,000.00 of his bill. They have since stopped working together.

[56] The grandmother has made inquiries of other lawyers, but cannot afford their retainers.

[57] On April 18, 2018, the grandmother spoke to Legal Aid Ontario on a second occasion and learned again that she is not eligible for legal aid. She obtained a Notice of Refusal from Legal Aid on or around that date. The Notice says that she had applied for a certificate for child protection proceedings on April 18, 2018 but that she failed to meet Legal Aid Ontario's financial requirements. The grandmother did not appeal Legal Aid's decision. It is not disputed that had she launched an appeal, it would not have been successful.

I. The Society Has Financed the Foster Parents' Lawyer

[58] During the prior proceedings, it came to light that the Society was financially assisting the foster parents to pay for their lawyer. This discovery became the subject matter of the motions that Scully J. disposed of in January, 2018. On January 23, 2018, Scully J. ordered various production, including that the Society shall disclose its "Fee Agreement" with the foster parents.

[59] Although it had been ordered produced previously, neither the grandmother, nor the foster parents, nor the Society provided me with a copy of this "Fee Agreement" initially for this motion. On August 14, 2018, I released an Endorsement and directed that it be filed along with an affidavit setting out the extent of the financial assistance provided, and whether that financing is ongoing. I also gave the motion participants an opportunity to re-attend before me to make submissions about certain points that the Court had concerns about, including about this additional evidence about funding.

[60] In compliance with my Endorsement of August 14, 2018, the Society filed the affidavit of Donacia Junor, the Supervisor of Administrative Services of the Society's Legal Department, sworn August 22, 2018, that attaches the "Fee Agreement". The "Fee Agreement" is actually a letter from Society counsel to counsel for the Foster Parents dated September 20, 2016. It was created prior to the first trial in this case.

[61] The additional attendance that I directed occurred on September 4, 2018, at which I heard very few submissions about this additional evidence.

[62] The "Fee Agreement" reveals the following:

(a) Prior to the first trial, there had been some degree of coordination between the Society and the Foster Parents regarding the conduct of the case, in addition to the financial payment of the foster parents' legal fees. The letter states that the Society was bringing a disclosure motion, a motion for leave to provide the foster parents with disclosure, and a motion for leave for the foster parents to cross-examine the adoption worker, the father and the grandmother. The letter specifies this was being done to "minimize costs, including disclosure";

(b) The Society confirmed that the solicitor-client relationship would be between the foster parents and the Society. It said its "only role" would be to pay the foster parents' legal bills;

(c) The Society agreed to pay the foster parents' counsel legal aid rates, to a "maximum" of $10,000, for preparation for, and attendance at a "maximum" five day trial, and for disbursements, to be billed at legal aid rates. Counsel was to provide interim bills at $1,500 intervals for the Society to monitor the expense. However, the $10,000 amount was not a hard cap. The letter states that if the trial exceeded five days, counsel may require additional remuneration; and

(d) The letter confirms that the foster parents were not then seeking to be added as full parties, only to participate in accordance with the Society's leave motion. But there was no agreement that they would remain participants with limited participatory rights only as a condition of the Fee Agreement. Rather, the foster parents agreed merely to keep the Society advised if their position about the extent of their participation changed.

[63] The letter concludes by saying, "[w]e do appreciate you taking on this trial for the [foster parents]. As I'm sure you understand, however, the Society has only a very limited budget for outside counsel and, should your fees exceed the above, we will have to enter into discussions about the limits of our budget and possible contribution by the [foster parents]".

[64] Ms. Junor's affidavit sworn August 22, 2018 goes on to advise that the Society has now paid the foster parents just under $50,000.00 for work billed by the foster parents' counsel for over the past approximately two years, despite the $10,000 maximum in the letter. This includes payment for:

(a) preparation for and representation at the five day trial;

(b) several settlement meetings and client meetings; and

(c) post-trial conferences and motions.

[65] Ms. Junor then justifies the increased expense by saying, "I am in fact advised that barely a month has gone by on this file without a court appearance".

[66] The affidavit concludes by advising that the financial assistance is expected to continue at least to the conclusion of the Society's summary judgment motion. And the affidavit advises that the nature and extent of the financial assistance has been reviewed by Senior Counsel on an ongoing basis, and will be further reviewed following the summary judgment motion.

[67] There was no evidence put before me as to the extent of any subsequent fee negotiations between the Society and the foster parents when the fees exceeded $10,000, nor was I provided with any evidence that the Society has required the foster parents to contribute to the fees. And there is no evidence to suggest any indication that the Society will stop funding them after the summary judgment motion.

[68] Although I did not have all these details when the motion came before me initially, the fact that the Society had paid for the foster parents' lawyer was in evidence initially. In her affidavit sworn April 20, 2018, the grandmother alleges that the Society made the decision to fund the foster parents' legal fees to further bolster their chances in the case, even though she says that she and the foster parents are in the "exact same position" as her in the litigation. She feels that she is being "ganged-up" on in an effort to "grind [her] down in the hope that [she] will consent to Crown wardship."

[69] In its responding materials initially filed, the Society acknowledges that it did in fact provide "financial assistance" to the foster parents for legal fees. According to Ms. Ianello's affidavits sworn April 30, 2018 and June 29, 2018, the Society made the decision to provide financial assistance just before the first trial commenced in the fall of 2016.

[70] The Society says it did this for three principal reasons:

(a) First, the Society says it did so once a "mediated settlement" became unlikely and because the foster parents disagreed with the Society on at least two points. It says the foster parents were "clearly not happy with some of the decisions that were being made by the Society", specifically its decision to undertake an adoption assessment of the grandmother and its decision about the amount of access it directed the foster parents to provide to the grandmother;

(b) Second, the Society decided to provide the foster parents with funding to protect their position respecting the grandmother's access at the trial. It says it funded the foster parents' lawyer when it became apparent that the Society and the foster parents would have a different position on the grandmother's access. The Society says it was not in a position to "properly represent the [foster parents'] interests" given this divergence of position. I will address later in these reasons the extent to which there is actually a divergence of position at this stage; and

(c) Third, the Society says it funded the foster parents' lawyer for reasons of fairness. It says that the foster parents had never been foster parents for the Society before, and they were involved only because the Society approached them to take H.C. As the case unfolded and become increasingly more involved, the Society says it "did not feel it was fair for the [foster parents] to shoulder the legal costs of a case they did not ask for and could not have predicted." [emphasis added]

[71] Three of the grandmother's reasons for seeking state funded counsel (namely that she disagrees with the Society's approach in this case, that she wants her plan properly before the Court, and because of fundamental fairness) are essentially the same reasons that the Society decided to fund the foster parents' lawyer.

[72] I understand the foster parents' perspective. They did not sign on for contentious or protracted litigation. But I also understand the grandmother's perception of unfairness. And as I will explain, the Society's decision to fund has created an actual unfairness that is the subject of this motion.

J. Prior Legal Proceedings

[73] The complexity of a case is a relevant factor to consider when deciding if state funded counsel is required. The prior proceedings in this case are lengthy and in my view, they speak to the complexity of this case. And I note that the Society relied on the case becoming more "involved" to justify its decision to fund the foster parents' lawyer. This in itself is a tacit acknowledgement of complexity.

[74] I therefore summarize this Court prior Orders:

(a) On February 18, 2014, on a without prejudice basis, Pawagi J. placed H.C. in the temporary care and custody of the Children's Aid Society of Peel and she transferred this proceeding to the Ontario Court of Justice at 311 Jarvis Street in Toronto;

(b) On March 11, 2014, also on a without prejudice basis, Cohen J. made an order placing H.C. in the temporary care and custody of the Catholic Children's Aid Society and ordered access at the discretion of the Society;

(c) Scully J.'s Endorsement of May 6, 2014 notes that the father was submitting to a DNA test. As set out above, paternity was later confirmed;

(d) On December 1, 2014, Scully J. made the statutory findings and found the child in need of protection pursuant to sections 37(2)(b), 37(2)(g) and 37(2)(l) of the former Child and Family Services Act, R.S.O. 1990, c. C. 11 (the "CFSA") as amended on the Society's summary judgment motion. The mother consented to this relief. The father neither consented to, nor opposed the motion;

(e) Scully J.'s Endorsements dated March 5, 2015 and April 7, 2015 note that the paternal grandmother's adoption assessment was underway;

(f) On June 3, 2015, Scully J. granted an adjournment on consent to September 14, 2015 because the parties were exploring resolution out of court;

(g) On November 5, 2015, Scully J. granted leave to the mother to serve and file an Answer and Plan of Care. He also endorsed that if the case did not settle, then it would proceed to Assignment Court;

(h) On January 25, 2016, Scully J. conducted a Trial Management Conference and adjourned the matter to Assignment Court on February 22, 2016;

(i) The matter went to Assignment Court on February 22, 2016. However the father's lawyer was not able to proceed. Cohen J. granted the father a lengthy adjournment, but made the matter peremptory to him. A five day trial commenced before Cohen J. on various dates in October and November 2016;

(j) Prior to trial, on September 29, 2016, Scully J. made an order for production of police records. He also granted the Society's motion referred to above for the expanded participation of the foster parents at the trial. Specifically:

(1) The foster parents obtained leave to cross-examine a Society adoption worker, the father and the paternal grandmother;

(2) The Society was permitted to provide the foster parents with disclosure of the father's and paternal grandmother's CCAS records and the adoption worker's notes; and

(3) The Society was permitted to provide the notes of the adoption worker for the foster parents to the parents' counsel;

(k) The trial did not complete in 5 days. On November 1, 2016, Cohen J. scheduled additional trial dates for January 9, 13, 27 and February 13 to 16, 2017;

(l) However, on January 9, 2017, the Court was advised that the mother had plead guilty to manslaughter and sentenced. The Court was also advised that the father's criminal trial was just starting. Cohen J.'s Endorsement notes that a transcript was being ordered. The matter was adjourned to a later date;

(m) On May 16, 2017, the Court was further advised that the father had now plead guilty to manslaughter. Cohen J. directed that the Court would want the reasons and granted a further adjournment;

(n) The trial was unable to be completed. On June 28, 2017, Cohen J. declared a mistrial;

(o) On July 17, 2017, on consent of the Society and the father, and not opposed by the mother and the foster parents, Scully J. added the grandmother as a party to this proceeding. He also ordered that the grandmother's adoption assessment be disclosed to all parties;

(p) On December 18, 2017 and January 19, 2018, Scully J. heard the access and disclosure motions referred to above. On December 18, 2017, a number of orders were made on consent to protect information about the foster parents from being provided to the father, and to prohibit the father from having contact with H.C., the foster parents, the mother, and also the grandmother when H.C. is in her care;

(q) On January 23, 2018, Scully J. ordered that access between H.C. and the grandmother was to continue to be in the discretion of the Society, in consultation with the foster parents. And he ordered disclosure of the "Fee Agreement" between the Society and the foster parents, disclosure from institutions in which the father had been placed since his arrest, disclosure of telephone and visiting logs for all institutions in which the father had been placed since his arrest, and disclosure of the grandmother's telephone records from June 2016 to the present;

(r) On February 9, 2018, Scully J. adjourned this matter to the Assignment Court to schedule a summary judgment motion on the issues of crown wardship (now extended Society care) and the parents' access, and to set a 5 day trial on the issue of access for the grandmother, contingent on the result of the summary judgment motion. Scully J. also made a number of trial directions, including that the foster parents may also cross-examine the mother, if she presents a plan for the access trial;

(s) At the Assignment Court on March 19, 2018, Justice O'Connell scheduled the two day summary judgment motion before me to be heard on July 9 and 10, 2018. She also granted leave to the grandmother to bring an "Amicus Motion" in the interim;

(t) The grandmother then brought this current motion. On April 19, 2018, Justice Scully scheduled it to proceed before me;

(u) On May 7, 2018, the Attorney General for Ontario requested a short adjournment to do written interrogatories of the grandmother. On consent, I adjourned the motion to May 14, 2018 to permit that to occur;

(v) For reasons relating to standing that I explain in more detail below, on May 14, 2018, I appointed the OCL and adjourned the grandmother's motion to be heard for a full day on July 9, 2018. I also rescheduled the summary judgment motion to proceed before me on two days in October, 2018;

(w) This motion proceeded before me on July 9, 2018. I reserved judgment; and

(x) By my Endorsement of August 14, 2018, I directed that certain additional information be filed and I directed the motion participants to re-attend before me to make additional submissions on certain points, prior to releasing this decision. That additional attendance occurred on September 4, 2018, the first date that all counsel could coordinate with the Court.

K. The Parties' and the Foster Parents' Positions at the Next Steps in this Case

[75] During the argument of this motion, I was told that at the summary judgment motion, the Society will be seeking an order that H.C. be placed in its extended care for the purpose of adoption by the foster parents with no access to the parents. It had yet to finalize its position concerning the grandmother's access to H.C. But the Society said that it would not be asking the Court to make an order that the grandmother have no access to H.C. at the summary judgment motion; rather it anticipated asking the Court to direct an access trial.

[76] I was told that the mother supports the Society's plan respecting H.C.'s placement. However, she will be seeking some form of access to H.C., whether he resides with the foster parents or with the grandmother.

[77] I was also told that the grandmother intends to oppose the Society's summary judgment motion. Her plan is to have H.C. reside with her and for H.C. to have generous access to his siblings. Alternatively, she intends to seek access to H.C.

[78] I was told the father intends to oppose the summary judgment motion. He wants H.C. to live with the grandmother and he wants some form of access to H.C.

[79] And finally, I was told that the foster parents support the Society's request that H.C. be placed in its extended care for the purpose of adoption by them. On this major issue, the foster parents and the Society are entirely aligned. They intend to argue that the father should have no access to H.C. and that the order should be silent as to access between H.C. and the mother. On these points, the foster parents are essentially aligned with the Society. At this time, they are not prepared to commit to a position respecting the grandmother's access to H.C. They have concerns that the grandmother might allow contact to the father. They need to know what the father's release plan from prison will include, to inform their position. On this point, it is unclear the extent to which they are aligned with the Society.

[80] As I have just explained, although the Society says this informed their decision to fund the foster parents' lawyer, it is not readily apparent to me exactly how, if at all, the Society's and the foster parents' positions respecting the grandmother's access will differ.

PART III: THE CONSTITUTIONAL QUESTIONS

[81] As set out above, both the grandmother and the child have filed Notices of Constitutional Question. Both allege that their right to security of person pursuant to section 7 of the Charter has been infringed, and both ask the Court to award the grandmother state funded counsel pursuant to section 24(1) of the Charter. They each seek the same remedy, but their reasons for claiming this remedy differ.

A. The Constitutional Questions

[82] The grandmother's initial Notice of Constitutional Question claimed state-funded counsel based on an alleged infringement of both her and the child's section 7 right to security of the person. But when this motion came before me on May 14, 2018, I inquired of her counsel about whether she could claim a remedy based on an infringement of someone else's (ie. the child's) Charter right.

[83] After some preliminary argument about the grandmother's standing to assert a claim on behalf of the child, the parties consented to the Court appointing the OCL to make submissions about the Charter issue from the child's perspective. I considered whether to appoint the OCL for the motion only or more broadly for the remainder of the case. In the result, for the reasons I gave in my Endorsement dated May 14, 2018, I appointed the OCL more broadly for the case pursuant to section 78 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 (the "CYFSA"). I then adjourned the matter to July 9, 2018 to permit the OCL to participate in this motion.

[84] As well and also for the reasons set out in my Endorsement dated May 14, 2018, I directed the grandmother to serve and file a re-stated (Amended) Notice of Constitutional Question, in accordance with the approach in G.(J.), for the July 9, 2018 return date.

[85] By the July 9, 2018 return date, the grandmother had done this and the OCL was ready to make submissions from H.C.'s perspective. The OCL served and filed its own Notice of Constitutional Question on behalf of H.C., as H.C.'s legal representative.

[86] Although the remedy the OCL seeks is the same as that claimed by the grandmother, the alleged section 7 infringement that the OCL asserts on behalf of the child is separate and distinct from that which the grandmother asserts, and the OCL's constitutional question effectively raises a question about the difference between standing to claim a remedy, and who may benefit from the remedy itself.

(1) The Grandmother's Standing

[87] I find that the grandmother does not have standing to claim a remedy based on a breach of H.C.'s Charter right. I agree with the OCL's submission that while any party may identify a child's constitutional rights, such rights should be asserted by an independent representative for the child, at least in the context of this case. The child's rights are the child's rights to raise.

[88] According to Professor Peter Hogg in Constitutional Law of Canada, 5th Ed., Volume 2 at page 201, "[s]tanding to apply for a remedy under s. 24(1) is granted to "anyone" whose Charter rights "have been infringed or denied." The section contemplates that it must be the claimant's own rights that have been infringed or denied. How then can the grandmother advance a claim based on a breach of the child's rights?

[89] As the Ontario Court of Appeal (OCA) has recently emphasized, children should have a say in proceedings that affect them, consistent with the United Nation's Convention on the Rights of the Child (the "CRC"). See Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at ¶ 62-64. While in the Information and Privacy Commissioner case the Court of Appeal articulated this general principle in a non-Charter context, it has application in a constitutional context too.

[90] I agree with the OCL that H.C.'s rights are not necessarily or completely aligned with the adults in his life and that the OCL is best suited to assert the child's right in this case. As Yukon Territorial Court Chief Justice Stuart said at Re R.A., [2002] Y.J. No. 48 ¶ 168, "[s]ection 7 protections cannot wait until a child is old enough to advise counsel. Child advocates can raise issues on behalf of young children that neither the department nor parents raise…. A child's rights and interests are different and need to be separately protected." This includes even young children.

[91] There is recent appellate authority of a Court appointing the OCL to pursue a Charter claim on behalf of the child. By way of example, in AMRI v KER, 2011 ONCA 417, the child, a Convention Refugee, had been sent back to her country of origin pursuant to the Hague Convention. On appeal, it was a parent who initially raised the child's rights. But then the Court of Appeal appointed the OCL to advocate for the child's section 7 rights.

[92] The question of who has standing to assert a Charter right on behalf of the child has also been dealt with in at least one other appellate decision in Ontario. In AI v. Ontario (Ontario Minister of Children's Services) (2005), 75 O.R. (3d) 663 (Div. Ct.) ¶ 74, the Court said it could not be done by foster parents, and so either the Crown (since the child was a crown ward) or the OCL would have assert the right.

[93] In my view, the OCL's proposed approach makes good sense here. It is difficult to see how the grandmother has any standing to assert rights on behalf of the child in this case. She does not have any decision making authority respecting the child and even if she did, their interests may not be aligned.

[94] I note that the Court in AI v. Ontario (Ontario Minister of Children's Services) did refer to Society as a possible entity who could assert a child's right. Neither the Society, the parents, the foster parents nor the Attorney General argued that the Society should do so in this case. That notwithstanding, I will address briefly why the Society is not the appropriate entity to do so in this case either, at least at this stage.

[95] In AI v. Ontario (Ontario Minister of Children's Services), the child was already a crown ward. This is not the case here. At this point, H.C. is only in the Society's temporary care. His interests are not necessarily aligned with the Society either. And on May 14, 2018, when I appointed the OCL, the Society conceded that it was in a position of conflict to assert standing respecting the child's rights.

[96] Therefore, I find that the only appropriate entity who has standing to assert the claim on behalf of the child at this stage of the case is the OCL. The grandmother may assert her own rights but should not be raising constitutional questions on behalf of the child.

(2) The Grandmother's Re-Stated Constitutional Question

[97] The grandmother's re-stated Constitutional Question is:

Would the failure of the Legal Aid Services Act, 1998, c. 26, as amended, or the Government of Ontario under its Legal Aid Ontario Program, to provide legal aid to the [grandmother] in child protection proceedings by a "society" under Part V of the [CYFSA] constitute an infringement of s. 7 of the [Charter] if the Respondent is not represented by counsel at the child protection proceeding.

If the answer is yes, is the infringement demonstrably justified in a free and democratic society pursuant to s.1 of the [Charter].

[98] To be clear, the grandmother is not challenging the constitutionality of the Legal Aid Services Act or the regulations made pursuant to it per se. Rather, she says it is the decision under that framework, not to provide her with funding, in the context of a court case launched by the Society asking that H.C. be placed in its extended care for the purpose of adoption, that engages her right to security of person. Like in G.(J.), the breach is an apprehended one. She says her security of person right will be infringed if she goes to trial without counsel.

[99] The grandmother further asserted that if the ratio in G.(J.) is that she must be a "parent" in order to bring a claim for state funded counsel, then this Court should expand the scope of the right and 'read in' "grandparent" into the definition of a "parent". Alternatively, this Court should create a new entitlement to state funded counsel, based on party status. She argues that once the Court saw fit to add her as a party, her s. 7 rights became engaged.

[100] The grandmother submits that the Court may extend the scope of section 7 in these ways, even though G.(J.) is binding on this Court and may be inconsistent with the approach she advocates for. If the Court extends the right, she says the Court will not run afoul of the principle of vertical stare decisis because there has been a "shift in the parameters of the debate" that warrants the reconsideration of a binding precedent.

(3) H.C.'s Constitutional Question

[101] H.C.'s Constitutional Question is:

The Child asserts that his right to security of the person in relation to his connections with kin and culture under s. 7 of the Charter (as informed by s. 15 of the Charter) are engaged and will be infringed in child protection proceedings under the [CYFSA] unless there is a fair hearing in accordance with the principles of fundamental justice. In the circumstances, a fair hearing may require state funded counsel for his paternal grandmother who has been denied Legal Aid. The s. 24(1) remedy claimed by the Child is an Order for state funded counsel for the Child's Paternal Grandmother, who is a party to the proceeding.

[102] The OCL submits that all children's security of the person rights are at risk when they face separation from their parents, and family, because of child protection proceedings. Moreover, the right of African-Canadian children to equal benefit of the law without discrimination on the basis of race and culture informs the child's s. 7 rights.

[103] The OCL argues that as an African-Canadian child, H.C.'s security of the person interest is further engaged by virtue of the state intervention shortly after his birth, which placed him at risk of losing contact with his kin and culture. Kin and culture are integral to the healthy development, well-being and positive identity formation for African-Canadian youth. The risks to H.C., as an African Canadian child, include loss of a potentially strong reciprocal relationship, loss of a principal, culturally significant connection to his kin and loss of a principal connection to specific culture. The OCL argues that grandmothers play a particularly important role for African-Canadian children.

[104] The OCL further submits that systemic anti-Black racism in Canada has contributed to the over-representation of African-Canadian youth in care, as opposed to with family, placing them at disproportionate risk.

[105] The OCL argues that H.C. cannot be deprived of his right to security of person except in accordance with the principles of fundamental justice. A core principle of fundamental justice is the right to a fair hearing. In this case, this means that the grandmother should have counsel to put forward a plan that counsel can then advocate.

[106] Finally, the OCL submits that the Court would benefit from being able to review that kin/cultural plan in comparison to the Society's plan. This will mitigate against the risk of "unacceptable error" by the Court in determining H.C.'s best interests.

[107] To be clear, the OCL's position on this Charter motion is distinct from what its position may be on the merits. In other words, when this case is heard on its merits, the OCL may or may not be supporting either a placement with grandmother or access. The OCL, which had only been recently appointed when this motion was argued, had not yet formulated its position. Regardless, the OCL says that the grandmother's position best comes from her, and she should be armed with the tools to fully present that plan to avoid "unacceptable error" being visited upon H.C.

B. The Society's and the Parents' Positions

[108] As set out above, neither the Society nor the parents take a position respecting this Charter motion (nor the request that the Court appoint amicus). But again, the Society (and the foster parents) did file materials and participated in the creation of the Statement of Agreed Facts.

C. The Attorney General's Position

[109] The only party to this motion who squarely opposes the Charter claims is the Attorney General. Again, the Attorney General takes no position on the motion for the appointment of amicus, so long as amicus is paid at Legal Aid rates.

[110] In this particular case, the financial impact on the government may be more or less the same if the Court were to award the grandmother state funded counsel versus if the Court were to appoint amicus. But interestingly, the Attorney General's opposition to extending the right to state funded counsel is not because of a broader concern about the financial implications of doing so. The Attorney General did not call any evidence or make any arguments pursuant to section 1 of the Charter at all and it does not make so-called 'floodgates' arguments. Rather, the Attorney General argues that the section 7 rights are just not engaged within the framework as set out by the Supreme Court in G. (J.). Simply, this case does not qualify.

[111] The Attorney General is content for the Court to appoint amicus if it sees fit. Counsel for the Attorney General concedes that the Court has the legal authority to appoint amicus, even if amicus takes on an adversarial role for the grandmother. The Attorney General submits that the Court has discretion to craft an amicus order in this fashion.

D. The Various Motion Participants Who Decided Not To Take A Position But Who Filed Materials And Inserted Caveats Into The Statement Of Agreed Facts

[112] In support of its argument, the OCL filed the affidavit of a proposed expert, Carol Grant sworn June 27, 2018 to provide social context evidence.

[113] The foster parents' position on the Charter motion changed between May 14, 2018 and July 9, 2018. As set out above, on May 14, 2018, when I appointed the OCL, the foster parents' counsel told me that they were not taking a position on the motion, but that they would be drawing to the Court's attention facts that might be relevant to the analysis.

[114] Both the Society (which also said it takes no position on this motion) and the foster parents did that by filing affidavits.

[115] After receiving the OCL's Notice of Constitutional Question, the foster parents and the Society served and filed further affidavits, in part, to respond to the issues raised therein. These affidavits essentially had the effect of responding to Ms. Grant's affidavit that the OCL later delivered. Society worker Ms. Iannello's second affidavit sworn June 29, 2018 specifically states it is was filed to ensure that the Court "has before it all of the facts accurately stated, in making its decision" on the Constitutional Question.

[116] In its factum, the OCL objected to the foster parents making submissions at this motion, because it says their participatory rights, either by statute or by this Court's prior Order, do not permit their participation. But then, based on a consent reached between all parties, the Attorney General for Ontario and the foster parents, the OCL withdrew Ms. Grant's affidavit and consented to some portions of its factum being struck. This happened at the outset of argument on July 9, 2018.

[117] As an apparent quid pro quo, all parties, the Attorney General for Ontario and the foster parents filed a Statement of Agreed Facts. In addition to specifying certain facts, the Statement of Agreed Facts states that the OCL would seek to introduce some of the literature that Ms. Grant had referred to in her affidavit.

[118] And then I was told that neither the Society nor the foster parents nor the parents would be making submissions. But the affidavits of Ms. Ianello and the foster parents remained before the Court. And they, along with the parents, had inserted caveats into the Statement of Agreed Facts.

[119] Given these developments, at the outset of the July 9, 2018 hearing, I inquired about whether I was still to consider the other affidavit evidence that effectively responded to Ms. Grant's. The OCL did not strenuously seek to have the foster parents' affidavit removed. Curiously, it indicated that similar evidence had been filed by the Society about kin and culture (which was hearsay) and it preferred that such evidence go in through the Society's worker rather than directly from the foster parents.

[120] In the end, I permitted the foster parents' and the Society's affidavit evidence to remain in the record, and neither the foster parents nor the Society (nor the parents) made oral submissions during the motion, except in specific instances when I asked questions of them.

[121] I have trouble with the accuracy of the Society's and the foster parents' statements that they were not taking a position. While they chose not to make arguments, they filed written material to bring facts to my attention. As it has been put before me, I considered their evidence. And upon further reflection about this material and the submissions I heard, I had concerns about the caveats that they, along with the parents, sought to insert into the Statement of Agreed Facts. Thus, I directed the parties to re-attend before me to make additional submissions. I address this next.

E. The Admissibility of the Statement of Agreed Facts and Certain Social Science Literature

[122] A section 7 analysis must be contextual. See Winnipeg Child and Family Services v. K.L.W. ¶ 71. Courts routinely take the social and legislative context evidence into account when considering Charter claims. Both the grandmother and the OCL have provided evidence of the social and legislative context in which the CYFSA and the court system operates. No issue was taken with the grandmother submitting such evidence, but as I referred to above, the other motion participants (meaning the Society, the parents and the foster parents) attempted to place limits on the OCL's social science evidence.

[123] Despite that, the Statement of Agreed Facts and two reports filed by the OCL were admitted into evidence on consent and marked as Exhibit 1 to the Motion. The Statement of Agreed Facts says that it had been submitted by the "participants" of the Charter motion. Paragraph "A" of it states that Ms. Grant's affidavit is withdrawn by the OCL. Paragraph "B" contains the purported caveats.

[124] Paragraph "B" states that the "statements to be submitted by the OCL" are for the Charter motion only, are "limited to be used only for this Charter motion and on behalf of the OCL" and the other participants in this matter (meaning the Society, the parents and the foster parents) "reserve their rights to challenge these statements and documents in any future proceeding whether within this court action or otherwise". Then, after specifying the agreed facts (I reproduce these below), paragraph 7 of the Statement claims that "the above [facts] are intended as general concepts and not necessarily connected to the child before this Honourable Court, but are presented as a basis by the OCL to support their request for state funded counsel for the paternal grandmother, B.F., and their use is limited to their motion in such regard. The participants in this action reserve their right to challenge the above in future aspects of this proceeding."

[125] The first of the two reports entered into evidence is the "One Vision One Voice: Changing the Ontario Child Welfare System to Better Serve African Canadians. Practice Framework part 1: Research Report, September 2016".

[126] The process resulting in the One Vision One Voice Report began in 2015, when the Ontario Ministry of Children and Youth Services funded the African Canadian community through the Ontario Association of Children's Aid Societies to facilitate the development of a Practice Framework that would support child welfare agencies in providing better service to African Canadian children, youth and families. This resulted in the hiring of a project manager and consultant to implement the project, and the formation of a Steering Committee and a Reference Group. Between September 2015 and March 2016, 16 community consultations were held to gather feedback from African Canadian service users, advocates, community agencies and service providers about the issues that bring African Canadians into contact with a Society, their experiences once involved and their recommendations for change. Over 800 individuals participated in the consultations.

[127] Part I of the One Vision, One Voice Report that was put before me is the Research Report. It contains references to literature. As it explains, it also highlights various issues that the African Canadian community experiences when coming into contact with the child welfare system, and it makes recommendations for change based on the community consultations.

[128] The second document I admitted into evidence on consent as part of Exhibit 1 is entitled "Civil and Political Wrongs: The Growing Gap Between International Civil and Political Rights and African Canadian Life. A Report on the Canadian Government's Compliance with the International Covenant on Civil and Political Rights (June 2015). As I will explain later in these reasons, at least one Court has referred to this report in taking judicial notice of anti-Black racism in Canada.

[129] In addition, the OCL included and referred to various United Nations Conventions and other UN documents in its Book of Authorities. Plus, the grandmother's Book of Authorities contained the report entitled "Access to Civil & Family Justice, A Roadmap for Change" dated October 2013 published by the Action Committee on Access to Justice in Civil and Family Matters (also referred to as the "Cromwell Report"). No one objected to the inclusion of these materials in the respective Books of Authority.

[130] After the motion, at my request, the grandmother's counsel supplied to me New Brunswick's child welfare legislation that was in force at the time of the G.(J.) decision and various versions of Ontario's Child and Family Services Act that had been in force at different times since the G.(J.) decision, right up to the enactment of Ontario's current child welfare legislation. Further to my August 14, 2018 Endorsement, he provided this legislation to support the grandmother's argument that there had been legislative evolution since the G.(J.) decision, which warrants a reconsideration of G.(J.). He also supplied to me a copy of the Legal Aid Services Act, 1998, Ontario Regulation 106/99 as amended, entitled "Administration of System for Providing Legal Aid Services" and Ontario Regulation 107/99 "General" and the applicable Financial Eligibility Tests, which had not been previously filed. No one objected to my being given this legislative material, and no one asked to make additional submissions about it, despite being given an opportunity to do so.

[131] I directed the parties to re-attend before me on September 4, 2018 because during the period after July 9, 2018 in which I reserved judgment, I had difficulty understanding how the other motion participants could take a position on the withdrawal of an affidavit with the quid pro quo of filing a Statement of Agreed Facts and certain social science literature referred to in the affidavit, only to then reserve the right to challenge any findings of fact that I may make based on this evidence that either does not like later on. So in my Endorsement of August 14, 2018, I specifically asked for submissions about how exactly the other motion participants might exercise their so-called reserved rights "to challenge these statements and documents in any future proceeding whether within this court action or otherwise". I invited additional submissions and input regarding what findings of fact the Court should make as a result of this material, and on what basis, if any, anyone may lead evidence in the future to challenge any such facts, once findings have been made.

[132] At the September 4, 2018 attendance, the OCL took the position that any findings based on the social and legislative context evidence that I might make now may not be challenged later on, but the parties and the foster parents would be free to make submissions about the weight to be attached to any particular finding when the merits of the case are decided. Both the Society and the foster parents agreed with this approach in part, adding that they may wish to challenge the relevance of any particular finding later on too.

[133] However on further exploration, it became clear that what the Society and the foster parents actually sought to do, is to preserve their ability to call specific evidence about this particular child's cultural and other needs to argue that those needs are being met, despite the context evidence. Curiously, it was the grandmother's position that any findings I might make now about the context evidence could be challenged entirely later on. Neither parent made any helpful submission on this point.

[134] Regarding the extent of the social and legislative context findings that I might make, all agreed that I need not make all of the findings of fact specified in the Statement of Agreed Facts. They also agreed that I may make other findings, based on the other context evidence put before me, but not expressly included as part of the Statement of Agreed Facts.

[135] Having further considered the matter, I make certain factual findings, some of which are based on the Statement of Agreed Facts, and some of which are based on the social and legislative context documents filed. My findings are set out later in these reasons. These findings will not be subject to re-litigation later on in this case. However, to be clear, the findings that I am making about the social and legislative context will not prevent any party or the foster parents from calling specific evidence about the child's needs, nor from making arguments about the weight that should attach to the findings I am making now when the merits of the case are adjudicated. I say this for the following reasons.

[136] To begin, it was known to all of the motion participants before the motion was argued on July 9, 2018 that the OCL and the grandmother intended to rely on social and legislative context evidence, as this material had been served and filed in advance and both referred to such evidence in their facta.

[137] The Attorney General, who will not be participating in this case further after this decision is made and who will therefore have no opportunity to challenge any findings later on, did not oppose the introduction into evidence of any of the facts in the Statement of Agreed Facts, or the social science literature. On September 4, 2018, the Attorney General also took no position about the effect of any findings that I may make to subsequent proceedings.

[138] Nor did the OCL, nor the grandmother oppose the context evidence that each sought to file. Yet the others sought to limit the use to which the Statement of Agreed Facts and the literature could be put in the future, while simultaneously choosing not to otherwise participate during the motion. In my view, this is inappropriate.

[139] According to Spoinka, Lederman & Bryant, "The Law of Evidence in Canada" 5th Ed. Toronto: LexisNexis Canada Inc., 2018 at 1393, judicial notice is the acceptance by a court without the requirement of proof, of the truth of a particular fact or state of affairs. Facts which are so notorious as to not be the subject of dispute among reasonable persons; or capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy, may be noticed by the court without proof of them by any party.

[140] At page 1407 of The Law of Evidence in Canada, the authors also write that "[r]esort to judicial notice of social context facts has been increasing to permit courts to interpret legislation and legal rules, particularly in the family law area." It is also used in Charter litigation.

[141] Willick v. Willick, 1994 CarswellSask 48 (S.C.C.), is a case that concerned a child support variation. Although she was writing about the correct approach to the statutory interpretation of the Divorce Act, in her concurring opinion at ¶ 44-58, L'Heureux-Dubé J. wrote about the importance of understanding the social realities experienced by those most effected in the family law context and the use of judicial notice of a tool for considering those realities.

[142] The majority opinion in Willick, written by Sopinka J., agreed with the contextual approach to statutory interpretation articulated by L'Heureux-Dubé J., but Sopinka J. did not find it necessary to decide "the thorny question of the use of extraneous materials, such as studies, opinions, and reports, and whether it is appropriate to take judicial notice of them and what notice to counsel, if any, is required." See ¶2. But by the same token, in obiter, he recognized that there is a wider latitude to take extraneous materials into account in Charter cases.

[143] Many Charter decisions at all levels of court have considered the social and legislative context in which the Charter challenge was brought. One example is Winnipeg Child and Family Services v. K.L.W., [2002] 2 S.C.R. 519. L'Heureux-Dubé J. once again referred to social science research as part of the analysis about context. In Constitutional Law of Canada, Vol. 2, at 809-810, Professor Hogg talks about the practice of US courts receiving a so-called "Brandeis brief" and whether the practice exists in Canada. A "Brandeis brief" is the practice of filing social science literature in a book of authorities, without having a properly qualified expert. Professor Hogg says this "seems to rest on an expanded notion of judicial notice", with courts taking notice of the "state of expert knowledge in a field of social science, even though the facts do not have the indisputable character that is the traditional prerequisite for judicial notice". In the Canadian context, at pages 812-813, Professor Hogg writes that courts often access this evidence, even if it is untested and the "relaxation of the rules for legislative facts in constitutional cases has certainly spilled over from references and appeals to trials".

[144] For example, Professor Hogg says that in R. v. Morgentaler, [1988] 1 S.C.R. 30, the majority of the Court referred to a variety of evidence "without questioning its admissibility of drawing any distinction between material adduced through sworn testimony and unsworn material." However, a different approach to the admission of this evidence may be warranted at the trial level versus when Charter issues are raised appeal. He distinguishes that when such evidence is received at the trial level as opposed to on appeal, witness testimony is an option and is the best evidence.

[145] Yet there is discretion to admit the evidence in unsworn form, even at the trial level. Professor Hogg writes, "[i]t seems clear that a trial court, when asked to make findings of legislative fact, has a discretion to admit unsworn evidence that is "not inherently unreliable". The court could take into account such matters as whether the legislative facts are essential to the case; whether they are disputed; and whether it would be impossible, or very costly, to prove them by conventional means. The court should also provide appropriate procedural directions so that there is the opportunity for each side to file reply material."

[146] At ¶ 48-56 of Canada (Attorney General) v. Bedford, 2013 SCC 72, the Supreme Court discussed whether to afford less deference to findings of fact made at trial from the social science evidence. In the result, the Supreme Court rejected the notion that there should be different standards of review on appeal depending on the kind of finding of fact made. In part, the Court's refusal to approve of different standards of review turned on the Court's "preference for social science evidence to be presented through an expert witness". This obiter passage suggests that social context evidence should be proven in the same manner as adjudicative facts.

[147] However, these comments of the Supreme Court are about whether there should be different standards of review. In saying the preferable approach is to have an expert witness, the Court in Canada (Attorney General) v. Bedford did not close off a trial Court's discretion to admit unsworn social context evidence. To be clear, in Bedford, like with Professor Hogg's comment about the evidence in R. v. Morgentaler, the application judge did not have entirely sworn expert evidence. Some of the evidence consisted of "documentary evidence in the form of studies, reports of expert panels and Parliamentary records." See ¶ 54. I also note that in R. v. Mamo-Levine, 2003 SCC 74 at ¶ 26-28, the Court held that it would be appropriate for a trial judge to take judicial notice of some facts, including government reports and documents, and require viva voce evidence about the more debatable facts.

[148] Another way to get the evidence before the Court is by way of a Statement of Agreed Facts.

[149] In this case, the social science evidence was initially tendered in sworn form. The OCL could have sought to have Ms. Grant testify orally, and it could have sought to have her qualified as an expert. She signed an Acknowledgement of Expert's Duty Form. But the OCL did not seek to do this and instead agreed to withdraw her affidavit. And no one asked to cross-examine her. They could have done so.

[150] Nor did any of the motion participants object to the OCL filing the literature and the United Nations documentation, nor did they object to the inclusion of the Cromwell Report by the grandmother in her Book of Authorities. They could have done so.

[151] Rather, the motion participants agreed that the OCL would withdraw Ms. Grant's affidavit evidence and tender a Statement of Agreed Facts and literature in unsworn form instead. But it came with confusing caveats. Upon being given another opportunity to address the caveats, neither the Society, the parents nor the foster parents offered any serious dispute to the social science material and agreed facts put before the Court.

[152] The Court's concern about the proposed caveats in the Statement of Agreed Facts is about the prospect of the Society, one of the parents or the foster parents attempting to re-litigate findings of fact, or challenging the social science literature later on, thereby further prolonging this case. Complaints about delay in this case have been raised multiple times. As the case comes to its conclusion, the parties should be focusing the litigation, not expanding it.

[153] While there is a debate as to whether a fact which is judicially noticed forecloses any evidence on the point, at page 1410-1411 of The Law of Evidence in Canada, the authors say that the "modern view" of judicial notice is that it is intended to dispense with the evidence, if the criteria for its application are present. The authors argue that "no practical purpose is served by allowing evidence to be led to contradict a judicially noticed fact. If the process is carried out correctly, the judge will already have had the benefit of all available information on the subject and it is unlikely that putting it in the form of evidence will have any greater impact on his or her decision." The Court can also limit the circumstances where the conclusiveness of the fact will prejudice a party.

[154] I appreciate that the Supreme Court's expressed preference for social science evidence to be presented through an expert witness is to avoid miscarriages of justice flowing from flawed expert evidence. This Court must always be vigilant in its gatekeeper role when it comes to expert evidence. But in this case, the evidence that was tendered was offered to ensure that the necessary procedural protections are in place for the conclusion of this case. In other words, it was tendered as context for arguments about a fair process, to avoid the possibility of a miscarriage of justice.

[155] Moreover, regardless of whether there is a relaxed standard of judicial notice in a Charter case or not, the findings of fact that I am making as a result of the social science evidence and about the legislative context, set out below, are indisputable. I would also add that when a fact has been noted by a judge in another matter, it has precedential value: see R. v. Williams, [1998] 1 S.C.R. 1128 ¶ 54.

[156] The Report on the Canadian Government's Compliance with the International Covenant on Civil and Political Rights (June 2015) was referred to and considered by the Court as context in sentencing in R. v. Jackson, 2018 ONSC 2527, [2018] O.J. No. 2136 (S.C.J.). Various courts have referred to and considered the Cromwell Report when considering context in those cases: see for example Lelond v. Park West School Division, 2015 MBCA 116. And although it is not social science literature per se, treaty documentation is regularly used as an interpretive aid in Charter cases. See Constitutional Law of Canada, 5th Ed., Vol. 2 at 65-68. The Charter is expected to provide at least as much protection as international human rights instruments. See Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 ¶ 23.

PART IV: LAW AND ANALYSIS

A. The Applicable Sections of the Charter

[157] I now turn to the approach to a section 7 analysis. As well, I address the OCL's argument about section 15 values being a lens though which the section 7 analysis ought to be conducted.

[158] Section 7 of the Charter reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[159] Section 15(1) of the Charter:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[160] Although the Attorney General does not assert a defence under section 1 of the Charter, should this Court find a Charter breach that warrants a remedy, I will nevertheless address section 1 briefly. Section 1 of the Charter reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[161] Section 24(1) of the Charter reads:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

B. The Approach to Section 7 Analysis

[162] I begin with a number of general principles applicable in section 7 cases. Both the purpose and the effect of state action are relevant to determining its constitutionality. See R. v. Big M Drug Mart, 1985 CarswellAlta 316 ¶ 81. See also Doucet-Boudreau v. Nova Scotia (Department of Education) ¶ 43.

[163] The goal of Charter interpretation is to secure for all people "the full benefit of the Charter's protection". To attain this, courts must pursue a "purposive" analysis of the right guaranteed. The Charter right is "to be understood, in other words, in light of the interests it was meant to protect". See R. v. Morgentaler at 51-52 per Dickson C.J.

[164] Section 7 of the Charter requires a two-step analysis to determine whether state action infringes a protected Charter right. The first question is whether there is an infringement of the right to life, liberty and security of the person. And if so, the Court must then determine if that infringement is contrary to the principles of fundamental justice. See Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519 ¶ 70.

[165] The three distinct elements to the section 7 right, namely life, liberty and security of the person, are independent interests, each of which must be given independent significance. One must only establish an infringement of one of the three before determining whether the infringement accords with the principles of fundamental justice. See page 52 of R. v. Morgentaler per Dickson C.J., citing Wilson J. in an earlier decision of the Court.

[166] As the grandmother and H.C. allege only that their security of the person interests are infringed (as opposed to other interests protected by section 7), I focus on that particular aspect of section 7 only.

[167] I heard arguments about what is needed to ensure that the upcoming summary judgment motion and possible trial thereafter will be fair. But I note the Supreme Court's caution in Blencoe v. British Columbia, 2000 SCC 44 ¶ 47, against conflating the two steps of the test. I must first determine that the interests alleged to have been infringed fall within the ambit of section 7. If there has been no infringement of either the grandmother's or the child's security of the person, then the section 7 analysis stops there. Both branches of the two part test must be made out to establish a Charter violation.

[168] In looking at section 7 contextually, I note that R. v. Morgentaler was decided in the early days of Charter jurisprudence. Dickson C.J. rejected an interpretation of s. 7 that would have recognized a very wide ambit of the rights protected, at least at that stage in Charter history. The Court specifically left open the possibility that the scope of section 7 would expand over time. At page 51 of R. v. Morgentaler, Dickson C.J. wrote, "I do not think it would be appropriate to attempt an all-encompassing explication of so important a provision as s. 7 so early in the history of Charter interpretation. The Court should be presented with a wide variety of claims and factual situations before articulating the full range of s. 7 rights." In her separate opinion at page 162, Wilson J. referred to an attempt to delineate the full content of the section 7 rights as an "impossible task because we cannot envisage all the contexts in which such a right might be asserted".

[169] Some decisions have considered section 7 through the lens of section 15, importing the equality guarantee into the section 7 analysis. Indeed this is the approach that the OCL argues for in this case.

[170] At ¶ 112-115 of her concurring opinion in G.(J.), L'Heureux-Dubé J. held that equality issues were engaged because women, especially single mothers, and women and men who are members of other disadvantaged and vulnerable groups, and visible minorities, are disproportionately and particularly affected by child protection proceedings. She found it important that the section 7 analysis should take into account the equality guarantee. Writing for the majority in Winnipeg Child and Family Services v. K.L.W., at ¶ 72, L'Heureux-Dubé J. once again held that already disadvantaged members of society are frequent participants in child protection proceedings.

[171] R. v. O'Connor, [1995] 4 SCR 411, was another case in which one of the opinions, penned by L'Heureux-Dubé J., discussed the interplay between sections 7 and 15 of the Charter. R. v. O'Connor was a case in which an accused had been charged with a number of sexual offences. He sought access to the complainant's records in the possession of various third parties to mount his defence. While section 7 of the Charter did not apply per se as the records were not in the hands of the Crown, L'Heureux-Dubé J. considered the Charter value of equality as informing the analysis.

[172] At ¶ 105 of R. v. O'Connor, L'Heureux-Dubé J. wrote, "[n]onetheless, when deciding whether to order production of private records, the court must exercise its discretion in a manner that is respectful of Charter values". She went on to consider concepts of privacy and the trauma that complainants must experience when faced with the threat of disclosure of records containing "intensely private aspects of their lives". She held that the term "security of the person" should "be animated by the rights and values embodied in the common law, the civil law and the Charter". And finally, she wrote that sexual assault, "…is a crime which overwhelmingly affects women, children and the disabled" and said that "ample and meaningful consideration must be given to complainants' equality rights under the Charter when formulating an appropriate approach to the production of complainants' records." See ¶ 112-128.

[173] Although these comments were part of a dissent, the Court's disagreement with L'Heureux-Dubé J. was on other grounds and not about these principles. And McLaughlin J. considered similar Charter values in a strictly civil context involving a request for therapeutic records, in M. (A.) v. Ryan, [1997] 1 SCR 157 ¶ 19-23.

[174] I find that there is authority to take into account the equality guarantee in a section 7 case. And I do so as part of the context of this case.

[175] The scope of section 7 continues to evolve as new contexts are brought forward, and this even includes the evolution of the scope of section 7 in cases where state funded counsel is claimed. As the Manitoba Court of Appeal held in Winnipeg Child and Family Services v. A.(J.) et al., 2003 MBCA 154 ¶ 34, 43, there is no freestanding Charter right to counsel, but the extent of the right to state-funded counsel in child protection proceedings was not completely fleshed out in G.(J.).

[176] So as other Charter cases have done and because this information was put before me, I will first set out the social and legislative context in which the child protection proceeding is operating and in which the Charter arguments have been made, before turning to the specific security of the person rights claimed by the grandmother and the child.

(1) Social Context

[177] Winnipeg Child and Family Services v. K.L.W. was decided almost 20 years ago. It involved a Charter challenge to the apprehension process in Manitoba's child welfare legislation. Despite their age and the decision's factual differences, many of the Court's comments about the social and legislative context in which the Manitoba legislation operated apply here today.

[178] As L'Heureux-Dubé J. wrote, unnecessary disruptions of the parent-child bond by the state have the potential to cause significant trauma to both the parent and the child. Parents should be accorded a relatively large measure of free from state interference to raise their children. See Winnipeg Child and Family Services v. K.L.W. ¶ 72-75.

[179] By the same token children are vulnerable. The family does not always provide a safe environment for children. Protecting children from harm has become a universally accepted goal. "Because children are vulnerable and cannot exercise their rights independently, particularly at a young age, and because child abuse and neglect have long-term effects that impact negatively both on the individual child and on society, the state has assumed both the duty and the power to intervene to protect children's welfare." See Winnipeg Child and Family Services v. K.L.W. ¶ 73-75.

[180] And again, in both G. (J.) and again in K.L.W., L'Heureux-Dubé J. found that already disadvantaged members of society are frequent participants of child protection proceedings.

[181] In this case, the OCL submits that African-Canadians are over-represented in the child welfare system, and arguments have been made about systemic discrimination and anti-black racism, and how these factors should impact the analysis on this motion. But no one has actually argued that H.C. is in care because of the operation of any systemic factors or because of anti-black racism.

[182] Regardless of the reason for his coming into care, I understand the point to be that this Court must be rigorous in its application of the best interests test to determine the best outcome for him. This social and legislative context evidence has been put before me to inform that analysis. It is before me for this Charter motion to ensure that the best evidence is before the Court at the next stage of the case.

[183] Regarding the evidence of over-representation, there is a lack of province-wide and local data about the extent of the over-representation. The lack of data in itself is problematic. The One Vision, One Voice Report notes that the Ontario Human Rights Commission has called on the Ministry of Children and Youth Services to help all child welfare agencies collect and report this data. And the One Vision, One Voice Report recommends mandatory collection and reporting of disaggregated race-based data. The 2015 Civil and Political Wrongs Report expresses concern about the failure of most Children's Aid Societies to collect data on race, at least as of 2012, despite two previous recommendations that such data be captured.

[184] The best available data put before me is localized to one agency, within Toronto. It reveals that African Canadian children are indeed over-represented within the Children's Aid Society of Toronto. As of September 23, 2013, African Canadian children made up 40.8% of youth in care of the Children's Aid Society of Toronto, while making up only 8.5% of the population in Toronto (based on 2011 data from Statistics Canada about the population).

[185] The One Vision, One Voice Report talks of certain systemic forces that bring African Canadian families into contact with the child welfare system.

[186] And other courts have already taken judicial notice of the existence of anti-Black racism in Canadian society. For example, in R v. Jackson ¶ 27 and 81-91, citing other decisions and the 2015 Civil and Political Wrongs Report, Nakatsuru J. recognized the legacy of colonialism, the role of slavery in Canada, exclusion and segregation in housing, schooling, employment and public places, systematic and overt racism in education, policing and the justice system and the overrepresentation of African Canadian children in the child welfare system.

[187] As the One Vision One Voice Report notes, children, once involved in the child welfare system, are at risk. Involvement in the child welfare system can have lifelong implications, placing children at risk of emotional, behavioural and developmental problems. The 2011 data from the Ontario Association of Children's Aid Societies shows a high correlation between children in care and poor life outcomes.

[188] A child's ties to his or her culture are significant for African Canadian Children. As the Report also notes, race and culture play a significant role in the development of African Canadian youth in a predominantly white society. As early as age 2, children are aware of differences in skin colour and culture. As they age, children become increasingly aware that differences in skin colour have social meaning and become aware of social inequities based on race. They also encounter their first prejudicial experiences. These experiences need to be handled correctly, otherwise children can be put at risk of developing a negative self-image.

[189] The notion that connection to culture and heritage are significant factors in a child's development is well recognized. In Van de Perre v. Edwards, 2001 SCC 60 ¶ 40, Bastarache J. confirmed, "[r]ace can be a factor in determining the best interests of the child because it is connected to the culture, identity and emotional well-being of the child".

[190] As the One Vision, One Voice Report further notes, the ethnic, religious and linguistic diversity within the African Canadian population in Ontario is diverse. Many African Canadians come from societies where the nuclear family is not the norm and where more importance is placed on extended family. The Report emphasizes that a one size fits all approach is not appropriate.

[191] None of the motion participants have directly challenged the data or research in the social science literature put before the Court. Rather, as I have set out above, some of the participants in this case will be arguing later on how these concepts should apply in H.C.'s specific context. Yet for the purpose of bringing facts to the Court's attention after receiving the OCL's Notice of Constitutional Question, the Society and foster parents have attempted to place in issue certain specific evidence about the child's culture at this time too.

[192] The Society worker, Ms. Iannello, says she considers H.C. to be culturally matched. Yet she has no personal knowledge of the cultures of St. Vincent and the Grenadines, or Barbados. In making this statement, she says she looked on a map to see that St. Vincent and the Grenadines is approximately 110 miles apart from Barbados. Otherwise she seems to be relying on the foster mother's evidence to formulate her opinion that H.C. has been culturally matched. The balance of her affidavit sworn June 29, 2018 on this point is hearsay, the source being the foster mother. Her affidavit, and the foster mother's affidavit sworn July 1, 2018, essentially replicate each other.

[193] The foster mother's affidavit sworn July 1, 2018 points out the similarities between the cultures of the Barbados and of St. Vincent, and she talks about her efforts to expose H.C. to his culture.

[194] While the Court may find eventual merit to what the Society and the foster mother have said on this point, I cannot, and need not make a finding at this stage that H.C. is culturally matched. He may very well be but as the One Vision, One Voice Report says, there may also be distinct differences in culture in this particular case. The parties and the foster parents should call such specific evidence properly at the next step(s) of the case.

[195] Again, the findings that I am making about the social and legislative context in which this case is operating (set out below) will not preclude any of the parties, or the foster parents from tendering specific evidence about H.C.'s culture for the next steps of this case. This can include evidence of both the similarities and differences of the countries that make up the child's heritage. It may be that specific expert evidence is required.

(2) Legislative Context and Framework

(i) Ontario's Child Welfare Legislation

[196] The legislative context that I am taking into account is five-fold.

[197] H.C. has already been found in need of protection. Without intending here to limit the scope of anyone's positions on the merits of this case, what remains in issue in this case for the Court to decide will be whether to order that H.C. be in the Society's extended care pursuant to section 101 of the CYFSA, for the purpose of adoption by the foster parents, or whether he will be placed with the grandmother.

[198] The only alternative plan to the Society's respecting placement will be put forth by the grandmother. Regardless of which placement prevails in the result, the Court will also have to decide various access issues concerning H.C., either pursuant to sections 104 or 105 of the CYFSA.

[199] These decisions will be governed by the statutory best interest test in section 74(3) of the CYFSA, and the other specific applicable sections of the CYFSA respecting disposition and access.

[200] While this is the current legislative framework in which this case operates, it is understood that "Canadian child protection law has undergone a significant evolution over the past decades. This evolution reflects a variety of policy shifts and orientations, as society has sought the most appropriate means of protecting children from harm". Society has become more aware of the problems of child abuse leading to calls for greater state intervention into the lives of families. At the same time, the law has "increasingly emphasized individual rights to protection against state intervention." See ¶ 76 of Winnipeg Child and Family Services v. K.L.W. per L'Heureux-Dubé J.

[201] G.(J.) was decided in the context of New Brunswick's then existing child welfare legislation and legal aid regime. This was in the 1990's, almost 20 years ago. The case is of course governed by Ontario's current child welfare legislation, and this Charter claim must be decided with reference to Ontario's current legal aid plan.

[202] Ontario's current child welfare legislation is the culmination of continued legislative evolution over a number of years.

[203] Ontario's child protection legislation has undergone major revisions since G.(J.) was decided. The grandmother argues these changes recognize the greater importance of extended family members in the lives of children and decisions affecting their well-being. I note that the current legislation itself also recognizes what the Supreme Court first said almost 20 years ago, that child protection proceedings disproportionately impact the most disadvantaged members of society. As I will explain, the CYFSA recognizes, in both its preamble and elsewhere in the legislation, much of the very social context that I have highlighted above.

[204] Beginning with the arguments about the expanded participation of extended family, the grandmother points to certain amendments, first made to the CFSA in 2006 that were enacted towards this goal.

[205] There are five changes in particular that she points to:

(a) The additional purposes of the Act in subsection 1(2) were changed to recognize that children's services should be provided in a manner that "includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community where appropriate";

(b) Definitions of "extended family" and "relative" were included in section 3(1) of the Act, with a grandparent falling within both definitions;

(c) The statutory best interests test in section 37(3) of the CFSA was expanded to include a consideration of "the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's family or member of the child's community";

(d) Section 37(5) was amended to include a person's home as "a place of safety" if the person is a relative or extended family member and the Society had conducted an assessment of the home and is satisfied that the person is willing and able to provide a safe home environment for the child; and

(e) In making its first temporary care and custody order under section 51 of the CFSA, the Court had to consider whether it was in the child's best interests to place a child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community before placing the child in foster care.

[206] In 2017, the legislature passed the CYFSA, which ultimately repealed and replaced the CFSA in its entirety as it came into force at two different points of time in 2018. This new legislation affects and changes the way child protection cases should be managed and determined.

[207] The new CYFSA continues to recognize the greater importance of extended family members in the lives of children and decisions affecting their well-being.

[208] Although not entirely new, the importance of a child maintaining his or her connection with family, is emphasized in s. 10(1) which provides that a child in care has the right to speak in private with, visit and receive visits from members of their family or extended family regularly (unless an order for extended care is made without access or in the absence of an openness order or agreement).

[209] There expanded definition of "parent" in section 74 of the CYFSA has been amended to incorporate new concepts of a parentage, now contained in the Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended, as a result of the result of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016.

[210] And the presumption against access is no longer as strong where an order is made placing a child in the Society's extended care. The new test to rebut the presumption against access is now the statutory best interests test contained in section 74(3), with the previous "beneficial and meaningful" test and a modified consideration about the child's adoptability being added as considerations in the overall best interests' analysis. See sections 105(5) and (6).

[211] The preamble to the new legislation now acknowledges that Ontario passed the CYFSA with the aim of being "consistent with and build[ing] upon the principles expressed in the United Nations Convention on the Rights of the Child". It recognizes that services should be provided in a child-centered way, in a manner that builds on the family's strengths, and consistently with the Charter and the Human Rights Code.

[212] The preamble acknowledges that systemic racism and the barriers it creates need to be addressed. Awareness of racism and barriers should inform the delivery of services to children and families. And services to children and families should, wherever possible, help maintain connections to communities.

[213] Further, the additional purposes section of the legislation, section 2(2), has again been amended, now to specify that services should be provided in a manner that takes into account, "a child's or young person's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression" and "a child's or young person's cultural and linguistic needs".

[214] Similar language is incorporated into the statutory best interest test which governs decision making in child protection proceedings. Section 74(3) now directs the Court to consider the child's "race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression" and the child's "cultural and linguistic heritage".

(ii) Canada's International Obligations

[215] Canada has international obligations as a signatory to the United Nations Convention on the Right of the Child (the "CRC"). The CRC provides for core rights: the right to be free from discrimination in Article 2, that the best interests of the child be a primary consideration in all decisions in Article 3, and the right for children to have their views and wishes given due weight in all decision making in Article 12. It also provides for rights linked to healthy development; state parties must ensure to the maximum extent possible the survival and development of the child as set out in Article 6(2).

[216] The preamble to the CRC emphasizes the importance of family and of culture. And various articles recognize that considering children's identity, including their family ties, ethnic, and cultural background, is central to the proper application of the best interests of the child principle. For example, article 20 specifically requires that due regard be given to these factors in finding placements for children removed from their home environment. Article 30 further affirms the right of a child belonging to a minority group to "enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language."

(iii) Summary Judgment Motions

[217] The Court is also mindful that the Society is seeking to address the important issue of the child's placement and the parents' access to H.C. by way of summary judgment. Summary judgment is governed by Rule 16 of the Family Law Rules. It too has been amended relatively recently (in 2015) to provide for its expanded use, in part as a result of a "recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system." See Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87 ¶ 2.

[218] Summary judgment used to be a tool to weed out the weakest claims. This is no longer the case, but the law is unsettled regarding how summary judgment should operate. This continues to be the subject matter of debate in judicial decisions. Most recently, the Divisional Court commented on this in Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Div. Ct.). On August 24, 2018, the Ontario Court of Appeal granted leave to appeal the Divisional Court's decision.

(iv) Concerns About Access to Justice

[219] Concerns about access to justice are another piece of important context. As the Cromwell Report states, there is a "serious access to justice problem in Canada. The civil and family justice system is too complex, too slow and too expensive". That there is an access to justice problem is not the "subject of dispute among reasonable persons".

[220] The Cromwell Report notes that there are major access to justice gaps in Canada. For example, nearly 12 million Canadians will experience at least 1 legal problem in a given 3 year period. Individuals with lower incomes and members of vulnerable groups experience more legal problems than higher income earners and members of more secure groups. Problems multiply. Having one legal problem can often lead to other legal, social or health related problems. And unresolved legal problems can adversely affect people's lives and the public purse.

[221] To address the access to justice problem in Canada, the Cromwell Report sets out six guiding principles and recommended a 9 point "Access to Justice Roadmap". Increasing legal aid funding is a part of that roadmap.

[222] As the Cromwell Report notes, legal aid funding is available only for those of extremely modest means, and the length and cost of legal matters have continued to increase. Most people earn too much money to qualify for legal aid, but too little to afford the necessary legal services to meaningfully address any significant legal problem.

[223] And the cost of seeking legal assistance is a real or perceived deterrent for persons to seek legal assistance. Many people, often over 50% depending on the court and jurisdiction, are representing themselves in proceedings, usually not by choice. There is a correlation between having legal assistance and receiving better results, than those who do not have assistance.

[224] The Cromwell Report indicates that "[l]egal services provided by lawyers, paralegals and other trained legal services providers are vital to assuring access to justice in all sectors, particularly for low and moderate income communities and other rural, remote and marginalized groups in society. To assist with the provision of these services for civil and family legal problems, it is essential that the availability of legal aid services for civil and legal problems be increased."

(v) Ontario's Legal Aid Plan

[225] To properly consider the Charter arguments in this case, it is necessary to have an understanding about the manner in which Ontario's legal aid system operates. The grandmother is one of the many Canadians who cannot afford a lawyer, but who earns too much to qualify for legal aid.

[226] The provision of legal aid in Ontario is governed by the Legal Aid Services Act, 1998, Ontario Regulation 106/99 as amended, entitled "Administration of System for Providing Legal Aid Services" and Ontario Regulation 107/99 "General" made pursuant to section 97 of the Act, and the policies and other methods of administration that are provided for in the legislation and regulations.

[227] The legislation and regulations are comprehensive and deal with a number of matters related to the establishment, administration and operation of legal aid in Ontario.

[228] Section 1 of the Legal Aid Services Act, 1998 sets out the purpose of the legislation, which is, to provide access to justice throughout Ontario for low-income individuals by means of:

(a) providing consistently high quality legal aid services in a cost-effective and efficient manner to low-income individuals throughout Ontario;

(b) encouraging and facilitating flexibility and innovation in the provision of legal aid services, while recognizing the private bar as the foundation for the provision of legal aid services in the areas of criminal law and family law and clinics as the foundation for the provision of legal aid services in the area of clinic law;

(c) identifying, assessing and recognizing the diverse legal needs of low-income individuals and of disadvantaged communities in Ontario; and

(d) providing legal aid services to low-income individuals through a corporation that will operate independently from the Government of Ontario but within a framework of accountability to the Government of Ontario for the expenditure of public funds.

[229] Section 3 of the Legal Aid Services Act, 1998 provides for the establishment of the corporation called Legal Aid Ontario. The objects of the corporation set out in section 4 of the Act are six-fold, related to the administration of legal aid and the provision of legal services.

[230] Pursuant to section 12, Legal Aid Ontario's mandate is to establish and administer a cost-effective and efficient system for providing high quality legal aid services. However, this is to be done within the financial resources available to it.

[231] Section 12(2) obligates Legal Aid Ontario to determine the legal needs of low-income individuals and of disadvantaged communities in Ontario and to establish priorities and policies for the provision of legal aid services.

[232] Legal aid services are to be provided in the areas of criminal law, family law, clinic law and mental health law. See section 13(1) of the Act.

[233] Section 14(1) sets out the manner that services are provided. Generally, services are provided by means of certificates for an applicant to hire a lawyer, through agreements between Legal Aid and lawyers to provide services, through clinics and legal aid staff offices, by duty counsel, by law students, and by the provision of legal information. Section 14(1) reads:

14 (1) Subject to subsections (2) and (3), the Corporation shall provide legal aid services by any method that it considers appropriate, having regard to the needs of low-income individuals and of disadvantaged communities, the need to achieve an effective balance among the different methods of providing legal aid services, the costs of providing such services and the Corporation's financial resources, including,

(a) the authorization of lawyers, by means of certificates, to provide legal aid services to individuals or a group of individuals;

(a.1) entering into agreements with lawyers, groups of lawyers or law firms under which the lawyer, group or law firm provides legal aid services;

(b) the authorization of service-providers, by means of certificates, to provide legal aid services other than legal services to individuals or a group of individuals;

(c) the funding of clinics;

(d) the establishment and operation of legal aid services staff offices;

(e) the funding of student legal aid services societies;

(f) the funding of Aboriginal legal services corporations to provide legal aid services to Aboriginal individuals and communities;

(g) the provision of duty counsel;

(h) public legal education;

(i) assistance to individuals representing themselves, including the provision of summary advice, assistance in preparing documents, information packages or self-help kits; and

(j) the authorization of alternative dispute resolution services.

[234] Section 14(2) states that Legal Aid Ontario shall provide legal services in the areas of criminal and family law "having regard to the fact that the private bar is the foundation for the provision of legal aid services in those areas." Thus, in criminal and family law, the legislature made a policy choice to recognize the importance of the private bar in the delivery of services. This of course is applicable in child protection proceedings.

[235] Eligibility for legal aid is based on certain criteria. To qualify for legal aid services, the area of law and type of case must be one that Legal Aid will provide services. As well, a person must apply, be financially eligible, pay an application fee, if any, and be approved in accordance with the procedures set out in the regulations. This is all set out in section 16(1) of the Act as well as in section 6(1) of O. Reg. 106/99.

[236] Financial eligibility is a key component of Legal Aid Ontario's assessment. Pursuant to section 17(1), every application will be assessed with respect to the applicant's financial eligibility.

[237] Pursuant to section 25(1) of the Act, a Legal Aid Area director may issue a certificate to an applicant if he or she is of the opinion that a certificate is justified, based on financial eligibility, the applicant's ability to contribute and the policies and priorities of Legal Aid Ontario established by it under section 12 of the Act. Contribution from the applicant may or may not be required. Pursuant to section 29(1), the area direct may attach such terms and conditions as he or she considers appropriate.

[238] Various rules regarding the specific Legal Aid Certificates to be issued are set out in sections 8 to 16 of O. Reg. 106/99. The certificate will specify the services that a lawyer is authorized to take on behalf of a client. Lawyers who act pursuant to certificates are paid by Legal Aid Ontario.

[239] O. Reg. 107/99 sets out the fees and disbursements that are paid, the various services that are authorized and the allocated time that may be spent on tasks. A lawyer who exceeds the allocated time may ask Legal Aid for additional time, and ultimately to exercise its discretion respecting additional work undertaken. The regulation also specifies how disbursements are to be paid.

[240] Section 1(2) of O. Reg. 107/99 incorporates the "Financial Eligibility Test for Legal Aid Certificates", Version 1.2, that is available from Legal Aid Ontario, also on its website into the regulation. To be financially eligible for a certificate, Legal Aid Ontario will look at the number of persons in the family unit, the income of the family unit and the assets of the family unit. Income means the total gross income from all sources, subject to certain exemptions, which I do not need to list here as they are not really relevant, since the grandmother exceeds the income threshold that applies to her. Legal Aid considers assets to be liquid assets, meaning those that can be readily converted into case, and that are owned by the applicant and/or his or her spouse. This includes real estate in Ontario or elsewhere, but excludes certain pensions.

[241] The grandmother does not financially qualify for either a contributory or non-contributory certificate on both the income and asset test. The income and assets cut offs are very low, particularly for someone living in the City of Toronto. As of April 1, 2018, the total income for a family unit of 1 must be under $14,453 to be financially eligible for a certificate without contribution. Incomes between $14,453 and $16,728 financially qualify an applicant for a contributory certificate. But assets cannot exceed $1,338 for either type of certificate.

[242] A person may appeal from the refusal to grant a certificate pursuant to section 30 of the Act. Provisions governing the appeal are set out in sections 17 and 18 of O. Reg. 106/99. As set out above, the grandmother did not do this, but it is agreed that the outcome of an appeal would not be successful.

[243] In addition to certificates, duty counsel and advice counsel are available in this Court to provide some forms of assistance to certain litigants.

[244] Legal Aid Ontario is authorized to employ duty counsel pursuant to section 20(1) of the Act. But one must also apply for duty counsel services. As is the case with certificates, the applicant must be financially eligible (although pursuant to a different test) and be assessed in accordance with Legal Aid's policies and priorities established in accordance with section 12 of the Act.

[245] Section 1(3) of O. Reg. 107/99 provides incorporates the "Financial Eligibility Test for Duty Counsel Services", Version 1.2, that is available from Legal Aid Ontario, also on its website into the regulation. The same considerations as those for certificates apply, but the income and asset thresholds are slightly higher, and there is only one set of income thresholds for duty counsel services, not two.

[246] The grandmother does not financially qualify for duty counsel services on both the income and asset test either. Although higher than those for certificates, the income and assets cut offs are very low for duty counsel services also. As of April 1, 2018, the total income for a family unit of 1 must be under $22,720 to be financially eligible for duty counsel services. The assets cannot exceed $2,007.

[247] Moreover, the functions of duty counsel and advice counsel are generally more limited than the functions lawyers retained pursuant to certificates. The functions of duty and advice counsel are set out in sections 24(2), (7) and (8) of O. Reg. 106/99. I need not repeat those functions here.

(3) Findings of Fact Regarding Social and Legislative Context

[248] Based on this context evidence and the Statement of Agreed Facts, I make the following findings of fact, which I find are indisputable:

(a) Child protection law has undergone a significant evolution in past decades;

(b) It goes without saying that a court must balance competing interests in a child protection proceeding;

(c) A child also has the right to be protected from harm and this may necessitate state intervention. There have been calls over the years for greater efforts to protect children from harm;

(d) Perhaps inconsistently, there have also been calls for increased protection of individual rights against state intervention;

(e) I also recognize that a child's involvement in a child protection proceeding can also have lifelong impacts on him or her;

(f) Already disadvantaged members of society are frequent participants in child protection proceedings. This includes African-Canadian children;

(g) A child's ties to his or her heritage and culture are significant. Considering family, ethnic and cultural ties are central to the application of the best interest test. A positive cultural/ethnic identity is important to the healthy development of African-Canadian children;

(h) Extended family members are increasingly recognized as playing an important role in child protection proceedings;

(i) There is a serious access to justice problem in Canada;

(j) Legal aid funding is only available to those of extremely modest means; and

(k) There is a correlation between having legal assistance and better outcomes.

C. The Right to Security of the Person Protected by Section 7 and the Established Test to Obtain State Funded Counsel

(1) General Principles Concerning the Right to Security of the Person

[249] Before turning to the specific test articulated by the Supreme Court in G.(J.), I begin with some general principles concerning the right to security of the person.

[250] R. v. Morgentaler concerned a challenge to the constitutionality of certain provisions in the Criminal Code dealing with abortion. In that context and referring to Mills v. the Queen, [1986] 1 S.C.R. 863, specifically section 11(b) of the Charter, at page 55, Dickson C.J. held that security of the person is not restricted to physical integrity. It also encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation". "This includes stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. If state imposed psychological trauma infringes security of the person in the rather circumscribed case of s. 11(b), it should be relevant to the general case of s. 7 where the right is expressed in broader terms."

[251] In conclusion at page 56, Dickson C.J. held that "state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, [constitutes] a breach of security of the person". He declined to determine whether the right extends further, including to interests unrelated to criminal justice.

[252] As we now know, section 7 rights have extended into the non-criminal law sphere. Section 7 can be engaged where there is "state action which directly engages the justice system and its administration). See G(J.) ¶ 65, 66 and Blencoe v. British Columbia (Human Rights Commission) ¶ 45, 46.

[253] To this analysis in Morgentaler, at page 166 although speaking of the liberty interest protected by section 7, Wilson J. added that the "idea of human dignity finds expression in almost every right and freedom guaranteed in the Charter." However, dignity is not an autonomous Charter right; rather it is an underlying value. See Blencoe v. British Columbia (Human Rights Commission) ¶ 76-78.

(2) The Right to Security of the Person Recognized in G.(J.)

[254] The mother in G.(J.), who had been denied legal aid under New Brunswick's plan, faced an application by the Minister of Health and Community Services to extend an order granting it custody of her three children for a further six months. The issue, as stated by the majority opinion in G.(J.), was whether "indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents' custody of their children" [emphasis added]. Lamer C.J. concluded that when government action triggers a hearing in which the interests protected by section 7, it is under an obligation to do whatever is required to ensure that the hearing be fair. Depending on the circumstances, that may require it to provide the "indigent parent" with state-funded counsel. See G.(J.) ¶ 1, 2.

[255] At ¶ 59-60, Lamer C.J. referred to an attempt to "delineate the boundaries protecting the individual's psychological integrity from state interference" as an "inexact science". Citing R. v. Morgentaler, he said that the psychological stress must be "serious state-imposed" stress. There must be a profound effect on a person's psychological integrity, "assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility". The impact need not rise to the level of "nervous shock or psychiatric illness, but it must be greater than ordinary stress or anxiety."

[256] Bastarache J. echoed these comments in Blencoe v. British Columbia (Human Rights Commission) ¶ 57 and 83. It is only in exceptional cases where the state interferes in profoundly intimate personal choices where state action could trigger the section 7 security of the person interest.

[257] At ¶ 61-62 of G.(J.), Lamer C.J. went on to state that he had "little doubt that state removal of a child from parental custody pursuant to the state's parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent." This is because the parental interest in raising and caring for a child is "an individual interest of fundamental importance in our society". State interference causes obvious distress from loss of companionship. It is also a "gross intrusion" into a private and intimate sphere. The parent is often stigmatized as unfit. The status of a parent is often fundamental to personal identity and so the stigma and distress resulting from the loss of this status is a particularly serious consequence of the state conduct.

[258] At ¶ 64, the Court gave a number of examples of kinds of state action that would not infringe the right to security of person. Not every interference into the parent-child relationship is sufficient, even if significant stress and anxiety result. To trigger an infringement of the right to security of person, the state must be making a pronouncement on the parent's fitness or parental status, or usurp the parental role, or pry into the intimacies of the relationship. It is when the state interferes with the "psychological integrity of the parent qua parent" that the right is infringed.

(3) The Right of An Extended Family Member to State Funded Counsel

[259] Again, the Court in G.(J.) did not fully flesh out the extent of the right to state funded counsel in child protection proceedings. And courts may entertain different applications of section 7 as new contexts come forward.

[260] Catholic Children's Aid Society of Toronto v. J.R.C. and G.C.Q., 2015 ONCJ 729, is a decision of this Court, in which Justice Ellen Murray did just that. J.R.C. was different from G. (J.) because the Society was not seeking the temporary or permanent removal of the children; it only sought a supervision order. One question that arose in J.R.C. is whether that form of state intervention triggered the level of state-imposed stress required for there to be a section 7 infringement. Justice Murray decided that it did in allowing the mother's Charter application for state funded counsel. Despite the fact that the Society had not sought to remove the child from the mother's care, Murray J. found that the order claimed by the Society would nevertheless usurp and restrict the mother's role as a parent in very significant ways. Moreover, the potential of losing custody was not 'off the table' in J.R.C. case and could be a potential result, depending on how things unfolded.

[261] However, I note that while J.R.C. is an extension from the classic G.(J.) scenario, it still involved a claim for state funded counsel by a parent following the Society's intervention into the sphere of her parenting. From the perspective of the grandmother's claim in the case before me, this important feature that was present in J.R.C., is lacking.

[262] There is no Ontario decision that squarely addresses the right of a grandmother (or other extended family member) to claim state funded counsel. However, failed claims by extended family members have been brought in both New Brunswick and Newfoundland. Interestingly, both provinces have left open the possibility for applications by extended family members in "rare" cases, while simultaneously placing limits on the scope of the security of the person right.

[263] There is no Ontario decision that squarely addresses the right of a grandmother (or other extended family member) to claim state funded counsel. However, failed claims by extended family members have been brought in both New Brunswick and Newfoundland. Interestingly, both provinces have left open the possibility for applications by extended family members in "rare" cases, while simultaneously placing limits on the scope of the security of the person right.

[264] At least two cases from the New Brunswick Court of Appeal focus on G.(J.)'s reference to the word "parent". These two decisions seem to hold that an extended family member must fit within a legislative definition of a "parent" to have standing to bring an application for state funded counsel.

[265] Minister of Social Development v. T.S., 2009 NBCA 67, concerned a claim by the child's great aunt and her husband for state funded counsel in a child protection proceeding. The S.' had been acting as foster parents for the child, but the child was removed from their home after allegations were made against them.

[266] The New Brunswick Court of Appeal reversed the trial judge's Order granting their application for counsel. In so doing, the Court clarified that it was not their non-parental status, although important, that determined the outcome. Rather, the application was denied because the S.' were non-custodial relatives of the child. Specifically, they did not fit within the expanded definition of "parent" in section 1 of the Family Services Act, S.N.B., 1980 c. F-22.

[267] Minister of Justice and Consumer Affairs v. J.R. and C.R. and Minister of Social Development and S.M.R. and R.M., 2010 NBCA 81, follows this approach. This case concerned a claim for state funded counsel by maternal grandparents in connection with an application for permanent guardianship of the child. At first instance, the application judge ordered state funded counsel, apparently drawing a parallel between a parent-child and a grandparent-grandchild relationship. Like it did in T.S., the Court of Appeal reversed the decision. It relied on the reference to the word "parent" throughout G.(J.) and ultimately said the disposition of the appeal was a question of statutory interpretation. The grandparents did not qualify as parents within the meaning of the Family Services Act, nor did they stand in loco parentis.

[268] I would not follow this definitional approach. This approach seems to tie a litigants' ability to pursue a Charter remedy to a statutory definition of a parent. In my view, the Charter right, if it exists, should not depend on a definition in an ordinary statute. In any event, and with great respect, I do not read G.(J.) as requiring an extended family member to qualify as some sort of "parent" before he or she could launch a Charter claim for state funded counsel.

[269] Minister of Justice and Consumer Affairs v. C.M. and P.M., 2012 NBCA 45, appears to soften the approach taken in the earlier New Brunswick cases. It focuses less on parental status and statutory definitions, and more on a functional view of the extent of the caregiving role that the individual applying for state funded counsel had been in. This case concerned an application by two fathers of two biological children, who were not the parents from whom the two children were removed. Granted both applications for funding involved parents, but the outcome turns on the fact that they had not been in a caregiving role at the time of the state intervention as opposed to their parental status per se.

[270] In its analysis, the Court focused more on G.(J.)'s reference to the stigma that is associated with being a person being "relieved of custody". In so doing, the Court also took a functional view of what is "custody" and implicitly recognized that a non-parent could apply. A person need not have legal custody necessarily for section 7 to be triggered. Rather, the Court considered the realities of the child's day to day life and asked what adult was responsible for the child's well-being, with whom did the child reside, and who was expected to provide the necessities of life.

[271] At ¶ 34, the Court said, "[t]he answers to these questions provide a much more fulsome picture of custody, and are of critical importance to meeting the threshold for conducting a s. 7 Charter analysis pursuant to G." In conclusion at ¶ 36, the Court said that person seeking state-funded counsel must have been exercising "custody, care and control of the child" and "it must have been from that individual's "custody" that the child was taken into care by the Minister".

[272] At ¶ 37, the Court also said:

Recognizing that absolutism is often not entirely realistic in the challenging pantheon of family law, I accept there may be exceptional circumstances which could extend entitlement to state-funded counsel under the rubric of s. 7 of the Charter beyond the custodial individual or individuals with whom the child resides. Such cases would be rare. For example, a parent who sees his or her child on a regular basis, who spends considerable time with the child, who provides aspects of care and control whilst with the child, who perhaps participates in the making of significant decisions with respect to the child's health and/or education, and whose life is unquestionably interwoven with that of the child, may well qualify. Such is not the case with either of the respondents in this matter. If the child plays no significant and meaningful role in the life of the applicant, and the applicant plays no significant and meaningful role in the life of the child, s. 7 is not engaged and the application for state-funded counsel must fail.

[273] Finally, J.F. v. Newfoundland and Labrador (Child, Youth and Family Services), 2013 NLCA 27, concerned a grandmother's application for state funded counsel on appeal of a decision that a child be placed in the continuous custody of the Manager of Child, Youth and Family Services. Like the latter New Brunswick decision, at ¶ 45 of J.F., the Newfoundland Court of Appeal focused not on the parental status per se, but rather that "there should be a form of custodial relationship existing between the child and the person seeking funding; otherwise, it would be difficult, if not impossible in most cases, to be able to argue that there was a degree of stigmatization, distress and interference with the psychological integrity of the person that would engage section 7".

[274] Also like the latter New Brunswick case, at ¶ 46 of J.F., the Court of Appeal left the door open to a person who did not have physical custody of the child but who was involved in parenting the child or otherwise was involved in the child's life to a significant degree. However in J.F., the particular grandmother's involvement with the child was insufficient.

D. Does the Grandmother Have A Right to Security of the Person that Has Been Infringed?

[275] In this case, the grandmother makes two principle arguments as to why her security of the person has been infringed. First, she argues that this Court should not bar her from obtaining state funded counsel simply because she is not a "parent". She argues that in a case where a biological parent is not able to put forward a plan for a child, then the definition of a parent should be expanded to include an immediate family member who has a genuine role to play in a child's life. If necessary, she asks the Court to depart from G.(J.) based on Supreme Court authority allowing a lower court to diverge from its rulings in appropriate cases. And she says that there has been a "shift in the parameters of the debate" that warrant such an approach.

[276] Alternatively, she argues that once the Court saw fit to add her as a party, her section 7 right to security of the person is triggered.

[277] I will address her arguments in order.

(1) When May A Lower Court Reconsider a Higher Court's Ruling

[278] In a trilogy of recent Supreme Court decisions, Canada (Attorney General) v. Bedford, Carter v. Canada (Attorney General), 2015 SCC 5, and R. v. Comeau, 2018 SCC 15, the Court sets out the circumstances in which a lower court may depart from authoritative precedents. It is a high threshold that must be met. At ¶ 44 of Carter, the Court said vertical stare decisis is fundamental to the legal system. The rule exists as there is an interest in finality. "However, stare decisis is not a straitjacket that condemns the law to statis."

[279] In all three cases, but here I specifically cite ¶ 42 of Bedford, a lower Court may revisit the matter if "new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate". See also R. v. Comeau ¶ 29-34 on this point.

[280] Charter arguments not previously raised constitute a new legal issue. See Canada (Attorney General) v. Bedford ¶ 42.

[281] But I am not persuaded that it is either necessary or appropriate to depart from G.(J.) to essentially read "grandparent" into some kind of definition of "parent", even in a case like this where no parent is really independently planning for the child. Nor am I of the view that this Court should depart from established precedent and extend the scope of the security of the person right based on the grandmother's party status.

[282] In coming to these conclusions, I remain mindful of the Supreme Court's comments that courts must be concerned not to "[trivialize] what it means for a right to be constitutionally protected". See G.(J.) ¶ 59.

(2) Parental Status is Not A Pre-Requisite To Obtain State Funded Counsel

[283] In finding it neither necessary or appropriate to depart from G.(J.) in relation to the grandmother's arguments, it is important to look closely at what G.(J.) did and did not do. In my view, the references to "parent" in G.(J.) do not mean that only parents may bring claims for state funded counsel. The reference to a "parent" in G.(J.) rests at least in part on the fact that it was actually a parent from whom the child was removed in that case and it was a parent who had applied for state funded counsel.

[284] From the mother's perspective in G. (J.), the infringement of her security of the person right arose not merely because she was a mother, but because the state interfered into her relationship with the child in a fundamental way that impacted her psychological integrity as a mother – hence the reference to the terms "parent qua parent" in the decision. As two of the subsequent appellate decisions that I have referred to clarify, the focus of G.(J.) is not on parental status per se, alone, nor on a rigid view of who had "custody" either. Rather the focus must be on the actual nature and extent of the relationship being interfered with, and the impact of the state intervention on the psychological integrity of the parties to that relationship.

[285] In most cases, this will involve a parent. But this could include a grandmother (or other relative or person) who in reality, had been involved in a significant relationship with the child.

[286] While I agree that there has been a shift in the legal landscape resulting in the new CYFSA (which I have highlighted above), I am not prepared to find that the shift brings grandparents onto an even keel with parents (and based on my reading of G.(J.) I would not need to do that in any event). I need look no further than the definitions in the CYFSA themselves on this point to see that while there is certainly a broader notion of who is a parent at law today, it does not include grandparents.

[287] Although there can be some overlap in certain instances, the definitions in the CYFSA still distinguish between parents and grandparents. The meaning of "parent" in section 2(2) of the CYFSA means person(s) having "lawful custody" of the child. This would include a grandmother, only if she had lawful custody of the child.

[288] The expanded meaning of "parent" in section 74 of the CYFSA includes both legal parents, an individual with custody of a child, and an individual whether by written agreement or court order, who "is required to provide for the child, has custody of the child or a right of access to the child". This expanded definition would only include a grandmother if she had a legal entitlement to custody, or access.

[289] Then there are separate definitions of "relative" and "extended family" in section 2(1), both of which would include a grandmother, even if she had no involvement with the child in a caregiving role.

[290] Grandparents are not considered "parents" within other family law statutes in Ontario, such as the Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended. As Fryer J. stated in M.R.R. v J.M., 2017 ONSC 2655 ¶ 30, "the definition of parent and family has been undergoing seismic change in recent decades". See also A.A. v. B.B., 2007 ONCA 2. But while many of these seismic changes culminated in amendments to the Children's Law Reform Act as a result of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, none of the amendments go so far as to equate grandparents to parental status. To the contrary, grandparents are still treated as "any other person" under the Children's Law Reform Act. See for example Part I generally and see also section 21.

[291] Just because the CYFSA calls for the expanded participation of others, including extended family members, in the provision of services, in planning for the child, and sometimes in child protection proceedings, this does not mean that each of those added participants necessarily have security of the person rights that are engaged by the state intervention.

[292] And again, it is not necessary or appropriate for me to re-define "parent" to include a "grandparent" for the purposes of this Charter motion in any event. It is not necessary because grandmothers are already included within the ambit of section 7, if the circumstances warrant. To focus on definitions of who is a parent and who is not a parent (which I have only done to address the grandmother's argument that there has been a "shift in the parameters of the debate") risks missing the very point of what the section 7 right was designed to protect against from the adult claimant's perspective, as articulated in G.(J.) and subsequent cases, namely serious state imposed stress flowing from state interference into an important, established relationship between an adult and a child.

(3) Being Added As A Party Does Not Entitle A Person to Claim State Funded Counsel

[293] At the time the grandmother brought a motion to be made a party to this proceeding, that issue was governed in part by predecessor section 39 of the CFSA. As section 39 said, the grandmother was not a statutory party to this case. However, it was open for the grandmother to be added as a party to this proceeding by Court Order pursuant to Rule 7(5) of the Family Law Rules, O. Reg. 114/99, as amended and she brought a motion for that accordingly.

[294] There are generally 5 criteria that a Court will consider when asked to add a party to a child protection proceeding. These criteria are summarized in Children's Aid Society of London and Middlesex v. H.(S.) ¶ 22-24; see also A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 ¶ 22-24. They are:

(a) whether the addition of the party is in the best interests of the child;

(b) whether the addition of the party will delay or prolong proceedings unduly;

(c) whether the addition of the party is necessary to determine the issues;

(d) whether the additional party is capable of putting forward a plan that is in the best interests of the child; and

(e) whether the person seeking to be added as a party has a legal interest in the proceedings (ie. whether an order can be made in their favour or against them).

[295] While the Court obviously considered necessity when adding the grandmother as a party to this proceeding, I cannot conclude that, once a person is added as a party, their security of the person rights are somehow engaged by virtue of that party status alone. The Order adding the grandmother as the party did little more than put her in the same shoes as the other parties. She acquired the same rights and obligations as the others. And not all parties have a Charter right to state-funded counsel.

[296] As the summary of the established jurisprudence in Winnipeg Child and Family Services v. A. (J.) et al. at ¶ 34 tells us:

There is no freestanding "right to counsel" protected by the Charter. Instead, the Charter recognizes the right of a person to receive a fair hearing when confronted by the state, which, in some cases, will require the assistance of counsel. In those cases where a court decides that a person requires the assistance of a lawyer to ensure a fair hearing, a limited right to state-funded counsel arises under s. 7 of the Charter. This right allows provision of publicly funded counsel to guarantee a fair trial in serious and complex cases where the accused cannot afford to pay and has been refused legal aid.

[297] If parents, who are statutory parties in this case, do not have a freestanding right to counsel solely by virtue of their party status (ie. an access parent for example), then why would the grandmother have such a right, just because the Court added her as a party as a result of a motion that she herself brought? I do not see that there has been a "shift in the parameters of the debate" that would warrant this Court extending a freestanding right to counsel based on party status alone.

[298] That being said, as set out above, the New Brunswick and Newfoundland Courts of Appeal decisions refer to the rare future case in which where state funded counsel might be extended to a non-parent or non-custodial adult based on a breach of that adult's own section 7 right. The opined rare circumstances whereby such a case might succeed all relate to the extent to which that adult was involved in a caregiving or parenting role, short of being the primary parent. But I do not read those cases as foreclosing other "rare" circumstances. I just do not accept that being added as a party in itself qualifies.

[299] When the child came into care, the grandmother did not have a relationship with the child. However, she developed relationship through Society facilitating contact. Yet there are factual disputes about the nature and extent of that relationship. These factual disputes will have to be resolved at the next stages of this. But at the same time, I cannot ignore that the Society decided to pay almost $50,000 for a lawyer for the foster parents and it has committed to continue to pay.

[300] It may be that these factors, combined with the fact that the grandmother was added as a party after the Society exercised its discretion to reduce the grandmother's access, interfered with the grandmother's psychological integrity to the necessary degree to engage her security of person. But the grandmother did not advance her claim in this fashion. In any case, the more clear right holder in this case is the child and I prefer to decide the issue from the child's perspective.

E. Does the Child Have A Right To Security Of The Person That Is Engaged?

[301] I find that the child's security of the person right is engaged. In obiter in G.(J.), Lamer C.J. held that the separation of parent and child as a result of the application would "unquestionably have profound effects" on the child too. See G.(J.) ¶ 57. However, there is very little case law in Canada that considers the scope of the child's right to security of the person when there is state intervention into the family as a result of a child protection proceeding.

[302] In her opinion, dissenting in the result but not on this point in K.L.W., Arbour J. focused on the section 7 interest from the perspective of the child (albeit again with reference to the parent-child relationship). At ¶ 12-14, she wrote:

12 In my view, not only should the Court recognize the child's interest in being protected from harm, but we must also recognize the interest of a child in being nurtured and brought up by his or her parent. While the appellant's apprehended child was not independently represented on the appeal, nonetheless, arguments relating to a child's interest in being protected against undue state interference in the parent-child relationship were made in the appellant's written submissions, at paras. 73-76.

13 My colleague, L'Heureux-Dubé J., has emphasized in her reasons the importance of the child's interest in being protected from harm (paras. 73-75). Although I, too, acknowledge the great significance of this aspect of the child's interest, it is equally important to recognize the child's interest in remaining with his or her parents and that harm may come to the child from precipitous and misguided state interference. Lamer C.J. explicitly recognized the child's security interest where the parent's custody of the child is removed by the state in G. (J.), supra, at para. 76:

Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent's right to security of the person at stake, the child's is as well. Since the best interests of the child are presumed to lie with the parent, the child's psychological integrity and well‑being may be seriously affected by the interference with the parent‑child relationship. [Emphasis added.]

14 If we fail to give sufficient weight to this aspect of the child's security interest, we may also fail to recognize that removing children from their parents' care may have profoundly detrimental consequences for the child. Professor Nicholas Bala makes this point in "Reforming Ontario's Child and Family Services Act: Is the Pendulum Swinging Back Too Far?" (1999-2000), 17 C.F.L.Q. 121, noting that children are not always placed in a foster care environment that is better than the care the child would have received in the home….

[303] This passage was cited with approval in Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309 (S.C.) ¶ 385, a decision that concerned certain inmates' challenge to the government's decision to cancel a program that permitted mothers to have their babies remain with them while they served sentences in provincial jails.

[304] And another case, RE R.T., 2004 SKQB 503, concerned a Charter challenge to a government policy that First Nations children not be placed for adoption without the consent of the band and First Nations agency, if any. In deciding the Charter claim, Ryan-Froslie J. cited both G.(J.) and K.L.W. And then at ¶ 67, she wrote:

By analogy, impairment of the right to security of the person can be extended to children apprehended pursuant to child protection legislation. Removal of a child from parental custody constitutes a serious interference, not just with the parent's psychological integrity, but with the child's as well. Children are deeply impacted by their removal from their homes. Not only is such removal a traumatic experience, but if that removal lasts for an extended period of time, it may adversely affect the child, causing behavioural issues and affecting their feelings of self-worth and their ability to cope. In very young children, it may affect their ability to form relationships and their development of self-identity.

[305] Murray J.'s decision in J.R.C. is perhaps the only case, other than G.(J.) itself, that considers the section 7 right from the child's perspective in the context of a request for state funded counsel. But it is done in obiter.

[306] In J.R.C., Murray J. found that the supervision order sought by the Society, if granted, would result in the children being raised by a single parent, being denied the daily support and love offered by a father, and having their contact with the father restricted and monitored. She found this could amount to a "serious effect on the children's psychological integrity". See ¶ 77. It was not just the interference in the mother-child relationship that led Murray J. to this conclusion; she considered the broader impact upon the child's other relationships.

[307] I find these comments, and the additional sources of material provided to me by the grandmother and the OCL, to be instructive.

[308] I find that H.C.'s section 7 right to security of the person is engaged as a result of his being taken to a place of safety in this case and the Society's application. It is not only the potential that H.C. will not be raised by his parent(s) per se that may have profound effects on him. In this case, the state intervention may potentially result in the loss of strong reciprocal relationships with his grandmother and the loss of a connection to his kin, heritage and culture.

F. The Principles of Fundamental Justice

[309] Just because one's security of the person right is engaged does not mean that the Charter claim is established. To make out the claim, one's security of person right must be deprived in a manner not in accordance with the principles of fundamental justice and the section 7 violation must not be saved by section 1 of the Charter.

[310] Principles of fundamental justice "are to be found in the basic tenets of our legal system". They can relate both to procedure and substance. See R. v. Morgentaler at 53, 70.

[311] It is well established that the Court must ensure that the process is fair. This is the principle of fundamental justice involved in this case. At ¶ 55 of J.R.C., Murray J. provided a succinct summary of what is required by G.(J.) in this respect. She writes:

(a) A parent must have an opportunity to present his or her case effectively, so that the court may assess the best interests of the child based on all the relevant evidence;

(b) Whether a parent must have counsel in order to do this depends on the circumstances. Factors to be considered include the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent; and

(c) Protection proceedings are adversarial in nature, and the parties are responsible for planning and presenting their case. A parent must adduce evidence, cross-examine witnesses, make objections on evidentiary issues, and present legal defences "in what is to many a foreign environment, at a time when they are under significant emotional strain".

[312] She also writes that (and as G.(J.) holds) that the party claiming counsel must also be "indigent". I address this concept of indigence momentarily.

[313] But it is clear that what will be required, if anything, is contextual. By way of further example, in AMRI v. KER ¶ 98, 120, 155 and 128, the Court of Appeal decided what was required to ensure a fair process in a contextual way, consistent with international human rights obligations and having regard to the context and facts of that case. The Court recognized that given the "potentially life-altering effect on all interested parties", it is "axiomatic that the courts must be vigilant in ensuring procedural fairness for all concerned."

[314] I am making an order that the grandmother receive state funded counsel. I am finding that without the grandmother receiving counsel, the child's section 7 right to security of the person would be infringed in a manner that is not in accordance with the principles of fundamental justice.

[315] I say this for the following 7 specific reasons. I would not have decided the Charter issue based on any one of these factors alone. It is the combination of a myriad of factors that has influenced my decision. The absence of any or several of these factors may very well have led to a different outcome.

(1) The Interests At Stake Are Serious

[316] There are no more important decisions in family law than those impacting a child. There is no real debate that issues at stake in this case are serious. The Society seeks the most severe dispositional order that is available under the CYFSA. And it seeks to do so by way of summary judgment. The question of the child's access to various interested persons is also an important issue.

(2) The Court Needs All Available Evidence About Best Interests

[317] To properly assess H.C.'s best interests and to fairly consider all of the elements of the best interest test, including the important issues raised about the child's connection with his kin and culture in an African-Canadian context, the Court needs the best available, relevant evidence before it, presented properly. This includes all elements of the grandmother's plan, including any aspects of H.C.'s culture that she may wish to include.

(3) The Merits of the Grandmother's Plan

[318] Decisions in which claimants have sought state funded counsel at first instance have not specifically required that their plans have underlying merit as a pre-requisite to obtaining state funded counsel. By contrast, Children's Aid Society v. L.M., 2018 ONSC 3633 (S.C.J.), is a recent decision in which a party sought state funded counsel for the purposes of advancing an appeal. In awarding state funded counsel for the appeal in that case, Price J. held that there is an added requirement, in the appeal context, that there be sufficient merit to the appeal. While the threshold is a low one, it still exists. Price J. focused on the fact that there are finite resources available, that unmeritorious appeals place strain on the court system, and that children should not be left in limbo pending appeals that lack merit as reasons for this added requirement.

[319] This is a case at first instance. While low threshold merit may not be a specific requirement, nevertheless, if the grandmother's claims lacked any threshold merit, then this might very well militate against awarding her state funded counsel because it would be hard to see how it would serve H.C.'s interest in having her plan put forth.

[320] If some threshold merit should be a requirement in an unusual case at first instance like this one, then I find that the Court has already made this decision. The test that Scully J. had to have applied when he added the grandmother as a party included necessity and that it was in H.C.'s interests to hear from her.

(4) The Case is Complex

[321] The complexity of the case is a factor to consider when deciding if state funded counsel is needed. Even though I have found that the Court needs the grandmother's evidence and plan for H.C.'s sake, a lawyer is not always necessary to ensure the Court gets that evidence.

[322] I accept the grandmother's evidence that she will have difficulty preparing materials, that she does not know the law, practice or procedure, that she does not know the rules of evidence, that she does not understand how to read the disclosure from the Society, that she is not familiar with what documentation is required, that she does not know how to present legal principles in court, research law or draft a factum, and that she needs to work to earn a living and does not have the time to devote to running the litigation.

[323] These problems become even more accentuated in a complex case like this one.

[324] It is widely accepted by the motion participants that this case is complex. All counsel, except for counsel for the Attorney General, agree on the descriptor "complex".

[325] The Attorney General avoided commenting about the seriousness or complexity of this matter given what it referred to in its factum as the absence of a "full record". Orally, counsel for the Attorney General submitted that a reasonable person might find this case complex.

[326] Counsel for the foster parents conceded that this case is complex from the grandmother's perspective. But she also said that the case is not particularly complex for a lawyer.

[327] I disagree that there is an insufficient record before the Court to assess complexity. And I intend to make certain comments about the complexity of this case in light of the submissions made.

[328] First, the grandmother is not a lawyer, so assessing the complexity of the case from a lawyer's perspective is not the test. I must consider the complexity issue from her perspective. But I would also add as Justice Sherr recently said in Children's Aid Society of Toronto v. S.A. and M.M., 2017 ONCJ 553 ¶ 48, "[e]ven in the most straight-forward cases, child protection matters can be very difficult to navigate. It is a complicated area of the law." And this case is not anywhere near "straight-forward" as a descriptor.

[329] I have no hesitation in concluding that this case is complex procedurally, factually and legally for a lay person, or for that matter, for a lawyer. There is an adequate record before the Court for me to make this finding. This case has a lengthy history of prior proceedings. The child's parents have been convicted of manslaughter. The foster parents have already adopted two older siblings. There are competing adoption assessments. There are divergent positions. There are allegations that the grandmother will not adequately protect the child before the Court. Her position is not necessarily aligned with her son's. The case has been delayed. There was a mistrial. There is now new legislation and a new best interests test for extended care and for access under CYFSA, which has yet to be consistently interpreted. Subject to my comments below, the case is now set for a summary judgment motion and there is a debate in the case law about the correct approach to summary judgment. The scope of the subsequent trial is in issue. There are issues about H.C.'s connection to his kin, culture and heritage, and questions about whether expert evidence is needed. This Charter motion itself contained novel issues that never before been decided in Ontario and it was argued over three different court appearances, one on which consumed a longer than normal full court day.

[330] In my view, it is important for H.C. that his grandmother's position not be prejudiced by her lack of representation in this case. From H.C.'s perspective, it is important that the Court have the grandmother's evidence. But it not only the obvious things, like formulating a position, gathering and marshalling relevant evidence, making and responding to objections, understanding the rules and the rules of evidence, cross-examining and making legal arguments, about which counsel will provide invaluable assistance to the grandmother. Counsel also provides more subtle advice that will undoubtedly be necessary in a case of this nature.

[331] Mr. Macri is competent, senior child protection counsel. He will be alive to the nuances in positions taken and will be able to give strategic advice. He will be able to advise the grandmother about the strengths and weaknesses of her position, what she might do to strengthen it (or conversely not do to weaken it) and about whether to advance an alternative position. He will be able to advocate for the grandmother if complex evidentiary issues come up.

(5) Only the Grandmother Can Advance Her Plan in this Case

[332] The only person who can truly advance the grandmother's position and plan is the grandmother. This is not a case where either parent is really planning independently for the child. Rather the mother supports the placement with the foster parents. And while the father supports the placement with the grandmother, his plan also includes him having access, and in this respect, he and his mother diverge.

[333] The father's interests are clearly adverse to the grandmother's on this point. I have already been told that, and it will certainly be argued by the Society and the foster parents, and perhaps by others, that contact between the father and the child is a non-starter from their perspective. If the grandmother is likely to permit access, or if she is likely unable to stop it, they will argue that this undermines her position respecting both the child's placement and access. There have already been allegations in this case that the grandmother allowed contact between H.C. and the father, which were the subject of access and disclosure motions that followed.

[334] I note that the Attorney General, the only party who actually opposed the Charter motion, made very few submissions about the scope of the section 7 right claimed by the child. The Attorney General focused its submissions heavily on the fact that the grandmother did not qualify for state funded counsel in her own right. But concerning the child, the Attorney General argued that the adversarial model itself is sufficient to protect the child's rights, because on the merits, the Court must balance the child's best interests.

[335] This argument, while attractive, only works if the Court is actually able to balance properly the child's best interests within the adversarial system. To do so, the Court must have evidence and options, properly and fully presented to it.

[336] I do not see any alternatives that would suffice in this case short of appointing counsel to get the grandmother's position and plan properly and fully before the Court. The grandmother is not financially eligible for legal aid. Nor is she eligible for duty counsel. Even if she were in between the financial ranges such that she were entitled to duty counsel assistance, the limited assistance that she would receive would not suffice. Duty counsel would not have time to review the matter in full at each court appearance. There may be different duty counsel each time. There would be no consistency of representation.

[337] Duty counsel may or may not make arguments at the intended summary judgment motion for the grandmother, or assist her at trial. Even if they would do so, without adequate preparation in advance, I find it hard to conceive how duty counsel could parachute into a case like this for the next step(s) that are coming soon.

[338] Nor would saying the grandmother should go retain counsel on an "unbundled services" basis do justice in a case of this nature either. The amount of time that would be required for a lawyer, even on a limited retainer, to be properly in a position to review this file and prepare for even part of the next leg in the case (such as preparing materials) will be significant too. And, without adversely commenting on the importance of duty counsel or unbundled services to the justice system, neither of these services will provide the comprehensive advice and representation to the grandmother that the H.C. deserves to ensure that the Court makes the right decision about his life.

[339] Counsel for the Attorney General argued that the Court could provide some form of assistance to the grandmother. For example, counsel for the Attorney General argued that I could afford the grandmother extra time to produce and respond to material so that she may see the format of others' material, or that I might intervene to make sure that she understands the procedure in Court and to clarify arguments for her benefit.

[340] I reject the suggestion that direction from this Court will be sufficient to assist the grandmother.

[341] I appreciate that a trial judge is under a duty to ensure a fair hearing and should assist, but this must be done within the limits of his or her judicial role. See G. (J.) ¶ 82. I agree that judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices. And judges must not use procedural and evidentiary rules to hinder the legal interests of self-represented persons. See the decision of Justice Laura Fryer in Gray v. Gray, 2017 ONSC 5028 ¶ 31, citing the "Statement of Principles on Self-represented Litigants and Accused Persons (2006)" endorsed by the Supreme Court in Pintea v. Johns, 2017 SCC 23.

[342] However, the trial judge cannot step into the role of an advocate for the grandmother. The Court cannot give the grandmother legal or strategic advice. Even if I gave the grandmother extra time to file material, the Court cannot assist the grandmother with her documentary preparation. The Court cannot assist the grandmother to review and understand the disclosure from the Society. The Court cannot elicit the grandmother's evidence in chief, or cross-examine on her behalf. The Court cannot call evidence for the grandmother. The Court cannot make arguments for the grandmother, either at the summary judgment motion or at the trial. And ultimately, the Court cannot, with the goal of making the process fair for one self-represented person, render the process unfair for others.

[343] Assistance from the Court must be constrained by the functions of the judicial role. In some cases, what is permissible assistance from the Court will suffice to ensure fairness. But not in this case.

[344] The involvement of the OCL is another option that might in many cases obviate the need for counsel. As set out above, on May 14, 2018, I appointed the OCL to get input about the Charter issue before the Court. At that time, I also considered whether to appoint the OCL for just the Charter argument or for the case more broadly. I decided to appoint the OCL more proudly pursuant to section 78 of the CYFSA. I note that pursuant to section 78(3), the Court shall direct that legal representation be appointed for a child if it determines that legal representation is desirable to protect a child's interests. I then wondered whether the OCL appointment alone would suffice. In my May 14, 2018 Endorsement, I indicated that if the Court later declined to appoint state funded counsel or amicus after hearing argument, the OCL may provide valuable input into the ultimate decision the Court must make from the child's perspective.

[345] I have seriously considered whether the OCL appointment is sufficient in this case. However, I cannot make this finding, based in part on the role of the OCL, and based in part on the positions to be taken (or not to be taken) on the merits of the case.

[346] According to Jeffrey Wilson in "Wilson on Children and the Law", Toronto: Lexis Nexis Canada Inc., 1994, at pages 3-55 and 3-66 (citing various authorities on these points), once appointed, the OCL has the full power to act for the child as though it was a party to the proceedings. This includes the right to production and discovery, to appear and participate in the proceedings, to examine and cross-examine witnesses, call evidence and make submissions to the court, and to take appeal proceedings. Moreover, pursuant to rule 4(7) of the Family law Rules, the child has the rights of the party, unless the Court orders otherwise (which I did not order). Where the child is unable to instruct counsel (as is the case here given his age), the OCL may nevertheless represent the child and make legal argument about the child's best interests.

[347] In this case, the OCL has not yet taken a position on behalf of the child. The OCL may or may not support the grandmother's position on the merits, either respecting placement or respecting access. The OCL advanced arguments about the importance of the child's connection to his family of origin, heritage and culture to ensure that the grandmother would be armed with the tools to present that perspective on behalf of the child. Based on the materials it filed, it is obvious that the OCL understands the importance of these factors, but that notwithstanding, the OCL is still free to take a different position on the merits of this case after it has fully considered all of the facts. The context evidence the OCL provided to the Court was just that, general information for context. But later on, the OCL may decide that this child's specific circumstances may warrant a different position.

[348] At the time I am releasing this decision, I have no assurance that the OCL will put before the Court any missing pieces of the evidence. This statement is not intended to be a criticism of the OCL. The OCL was appointed late in the case, by me, in part for a specific purpose. In a very short time frame since the appointment, the OCL got sufficiently up to speed to provided helpful evidence and submissions to the Court about the child's Charter right that the grandmother had improperly raised. But in a different case, perhaps one in which the benefits of a child's connection to kin, heritage and culture were being presented to the Court through a parent, or perhaps where the OCL had been appointed earlier and therefore had sufficient time to formulate a position, the remedy I am ordering, or even the OCL appointment itself, would not have been necessary.

[349] This case is at the cusp of pivotal next steps. Given the length of the prior proceedings, the Court does not want to take a 'wait and see' approach with the OCL or run the risk of there being missing evidence at the upcoming court events, or cause a further delay.

(6) The Playing Field Is Not Level Due to A Funding Decision Made by the Society

[350] There should be an "equal playing field" in this case, and I find there is not.

[351] Although the Society argues that it decided to fund the foster parents' lawyer in part because its position may not be fully aligned with that of the foster parents, as I said earlier, it is unclear to me the extent to which the positions diverge. In the end result, they may be fully or significantly aligned, or they may not be.

[352] Regardless, if the positions do indeed diverge, the foster parents are nevertheless armed with the financial and other tools they need to present their perspectives, as they have already received the Society's assistance to secure enhanced participatory rights in this case, followed by significant funding. And they will continue to receive significant funding, paid for by the Society.

[353] I appreciate that the foster parents have cared for H.C. essentially since his birth. This is obviously an important factor in this case and is relied upon by the Society in deciding to fund the cost of a lawyer for the foster parents. Yet it is surprising that the foster parents, who have fewer participatory rights in this case than the grandmother, and who are aligned with the Society on several of the major issues in the case, were put in a better position to advance their interests in this case by the Society's voluntary financing. The fact and extent of the funding the Society is providing is a significant factor that has influenced my decision in this case. The effect of the Society's decision to fund the foster parents that has led to the playing field being now, not level.

[354] The Society, the parents and the foster parents are all represented by competent, senior child protection lawyers, well known to this Court. They are all state funded. The OCL is of course state funded. The grandmother is the one person with different evidence, a different plan and a different perspective, and she is not state funded.

[355] I find that it is in H.C.'s interests that the grandmother be armed with the tools to put her best foot forward too. She wants to hire Mr. Macri, but she cannot afford to do so. Without legal assistance, I am concerned about the grandmother's ability to get her position and plan fully before the Court in an effective way. I am concerned that there will be a real imbalance.

(7) The Grandmother is "Indigent"

[356] Again, to qualify for state funded counsel, the beneficiary must be "indigent". Murray J.'s decision in J.R.C. at ¶ 81-104 provides the most comprehensive analysis in the case law of what qualifies as indigence in this context. There is a split in the case law that she analyzes. Some cases adopt a "strict approach" and others adopt a less stringent standard.

[357] In the former, an applicant must exhaust all options for raising funds and his or her prudence in managing finances during the pre-trial period can be considered. The Attorney General's arguments concerning indigence essentially follow the strict approach in the case law. Counsel for the Attorney General argued that the grandmother makes more than 2 ½ times the legal aid cut-off, and that she should have either gotten a full time job, or negotiated a repayment plan with her former lawyer.

[358] According to the less stringent approach, cases consider whether parents had little wiggle room to meet expenses beyond a basic budget.

[359] In the result in J.R.C., Murray J. preferred the less stringent approach. Albeit in the case of a parent, she found that the Court should not adopt a standard that applications for state funding should only be granted in "rare" or "exceptional" circumstances, and she held that it is important to remember that unlike in the criminal context, which cases tend to adopt the strict approach, the interests of children are also involved. An adherence to overly rigorous standards may put a timely and fair determination of children's best interests at risk.

[360] I find that the grandmother is "indigent" for the purposes of this application. The grandmother has had counsel at times previously in this case, but she cannot afford counsel in the long run. She is currently without counsel and owes an account receivable to her former counsel. She tried, but she is not eligible for legal aid.

[361] As set out above, the grandmother earns about $41,000 per year. She has a high school education and some limited college courses.

[362] She also lives in Toronto. It is expensive to live in Toronto and this is another contextual factor that necessarily impacts what indigence means.

[363] The grandmother's financial statement sworn April 20, 2018 reveals that her budget exceeds her income by about $14,000. She has a piece of land in St. Vincent and the Grenadines worth about $15,000 that she inherited, she has about $5,000 in various bank accounts and in the cash surrender component of a life insurance policy, and she an interest in a pension. She has debts of $51,781.27. This includes unpaid fees to the second lawyer. In the result, she has a stated negative net worth in excess of $20,000.00.

[364] Prior to argument, counsel for the Attorney General questioned the grandmother by way of written interrogatories. The answers obtained do not support the Attorney General's arguments that the grandmother can either afford to retain counsel or that she can take steps to better her financial position for this purpose. She is not able to liquidate the land she has in St. Vincent and even if she could, the money would mostly be paid to her previous lawyer and her other debts. Entering into a payment plan with her former lawyer might address the money she owes, but not the future legal costs.

[365] It is not fair for the Attorney General to argue that the grandmother, a government employee who gets only part-time hours, should work more. To do that would require the very government now arguing that she should work more to give her full time hours. Her evidence is that she does not control how many hours she works. That is up to the Court's (in which she works) discretion and case load. As set out above, in the past three years her average income was just over $41,000.00. She thought about trying to get additional employment elsewhere but did not pursue that given the commitment she wished to devote to the litigation. Even if she did pursue other employment, I do not see how additional employment would significantly improve her financial circumstances to be able to afford the cost of the litigation, which I address next.

[366] The cost for Mr. Macri just to attend at a 2 day summary judgment motion followed by a 5 day trial at the legal aid rate (assuming 5 hours of Court time per day) at the legal aid rate will exceed $5,000 (inclusive of HST but exclusive of disbursements). I accept the estimate that he could easily spend over 100 hours to respond to a summary judgment motion in a case like this, including reviewing disclosure, and that he might need an equal amount of hours needed to prepare for trial. This could cost another $25,000 (inclusive of HST but exclusive of disbursements) at the legal aid rate. At a lawyer's regular hourly rate or even at a reduced rate somewhere in between, the fees would be much higher.

[367] It is difficult to estimate the cost of the next step(s) in this case with precision. But I agree with Mr. Macri's submission that the concept of indigence may be considered with reference to what has been spent in fees to date. The grandmother budgeted $5,000 for a party status and an access motion in the past. Her costs then spiralled three-fold. Again, the Society has already paid almost $50,000 to the foster parents' lawyer at the legal aid rate for work in relation to the prior trial and then the subsequent events. The Society had only initially agreed to fund the foster parents up to $10,000. The Society's payments then increased five-fold.

[368] I was not given a breakdown by the Society as to how much of this $50,000 amount was allocated to what steps. I accept that some of the fees charged related to meetings and other steps that are in the past and that such steps may not again occur between now and the end of the case. But I nevertheless agree that the evidence that I do have about past spending is a good benchmark against which to assess both the cost of the future steps in this case, the fact that such costs are unpredictable, and to whether the grandmother can afford them.

[369] Clearly, the grandmother cannot afford the cost of the next steps in this case.

[370] No one has argued that the grandmother should be required to contribute towards the cost of state funded counsel.

G. Section 1 of the Charter

[371] Before addressing the jurisdiction to order this remedy, I wish to briefly address section 1 of the Charter. At ¶ 99-100 of G.(J.), Lamer C.J. holds that section 7 violations "are not easily saved by s. 1". This is because the rights protected by section 7 "are very significant and cannot ordinarily be overridden by competing social interests" and rarely will a violation of the right to a fair hearing "be upheld as a reasonable limit justified in a fee and democratic society".

[372] The Attorney General did not call any evidence nor make any arguments concerning section 1 of the Charter. Nor did the Attorney General argue that there would be floodgates concerns if the right was extended.

[373] Consequently, I need not say anything further about section 1. The section 7 violation is not saved by section 1.

H. Remedy

[374] Ordering state funded counsel is an available remedy under section 24(1) of the Charter. However, it is usually bestowed upon an applicant to redress a breach of that applicant's own right.

[375] I have found the child's section 7 right to security of the person would be violated if the grandmother does not receive state funded counsel. In coming to this conclusion, I also had to consider whether this Court may make an award that someone else, the grandmother, receive state funded counsel to redress the breach of the child's right. I have decided that this Court should make such an order. This is why.

[376] Standing to claim the remedy, and the remedy itself once the breach is found are two separate concepts.

[377] Section 24(1) does not limit the range of remedies that the Court may order once a breach is found. There is wide discretion given the wording of section 24(1).

[378] However, the Court's broad discretion must be exercised judicially and carefully.

[379] In R. v. O'Connor ¶ 68-69, when discussing whether to order a stay of proceedings if a breach of section 7 is found, L'Heureux-Dubé wrote:

……. It is important to remember, however, that even if a violation of s. 7 is proved on a balance of probabilities, the court must still determine what remedy is just and appropriate under s. 24(1). The power granted in s. 24(1) is in terms discretionary, and it is by no means automatic that a stay of proceedings should be granted for a violation of s. 7. …….

It is important to recognize that the Charter has now put into judges' hands a scalpel instead of an axe -- a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system……

[380] Professor Hogg suggests that the Court's discretion should be governed by the need to redress the wrong suffered by the applicant; to encourage future compliance with the Constitution, to avoid unnecessary interference with governmental power and perhaps based on the court's ability to administer the remedy awarded. See Constitutional law of Canada, 5th Ed., Volume 2 at page 210.

[381] At ¶ 23-25 of Doucet-Boudreau v Nova Scotia (Department of Education), the Supreme Court confirmed that section 24(1) should be given a "large and liberal" interpretation as a remedial statute, with 'the widest possible discretion on a court to craft remedies for violations of Charter rights." The Court must avoid a narrow, technical application that could "subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter". "[A] right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach".

[382] The Court declined to define the words "appropriate and just" in section 24(1) but it did set out some "broad considerations that judges should bear in mind when evaluating the appropriateness and justice of a potential remedy". These are set out at ¶ 55-59 of the decision and they are:

(a) A remedy must meaningfully vindicate the rights and freedoms of the claimant. It must take into account the nature of the right that has been violated and the situation of the claimant;

(b) A remedy must respect the separation of the functions among the legislature, executive and judiciary. It might touch upon the functions typically assigned to another branch, but the Court should not unduly or unnecessarily depart from its adjudicative role;

(c) A remedy must be within the competence of the court granting it;

(d) A remedy must be fair to the party against whom the order is made; and

(e) A court must be flexible and remember that remedies evolve, and may have novel or creative features which depart from historical remedial practice.

[383] British Columbia/ Yukon Association of Drug War Survivors v. Abbotsford (City), 2015 BCCA 142, was an appeal of a decision refusing to strike out claims in a statement of claim. The plaintiff association is a group that advocates for homeless persons. It claimed that its members were affected by the actions of the City and the police. The association was given public interest standing in the case. But the City argued that only individuals could claim remedies under section 24(1) of the Charter. Faced with that argument, the Court of first instance still declined to strike the association's claims.

[384] While the law was unsettled, in dismissing the appeal of the lower Court's refusal to strike the claims, at ¶ 16-19 the British Columbia Court of Appeal noted the apparent difference between claiming a remedy for oneself based on a breach of an independent third party's rights (there is no standing to do this), versus granting to someone a remedy on behalf of others affected by the unconstitutional state conduct. The Court of Appeal would not say that the latter is not possible, and it allowed the claim to proceed.

[385] The issue before me is similar. Having considered this matter fully and in context, in my view the concerns I have about fairness to H.C., about the pressing need to make the correct and important decision regarding his future, and about the integrity of the justice system, require an order that the grandmother receive state funded counsel to redress the breach of the child's section 7 right. I find that I may craft such a remedy applying the Doucet-Boudreau v Nova Scotia (Department of Education) criteria.

[386] Specifically, I find that state funded counsel is within the competence of this Court to order. State funded counsel is already an existing remedy that has been ordered by this Court albeit in different contexts (ie. in child protection cases, but on different facts, and in the criminal law context). And bearing in mind the goals of flexibility and tailoring a remedy to the specific circumstances of this case, I do not find that ordering this remedy is a major departure from previous practice. It is done to redress a child's section 7 right in a very specific and frankly unusual context in this case.

[387] As I have already explained, and in keeping with the Doucet-Boudreau v Nova Scotia (Department of Education) criteria, ordering this remedy is fair to the other participants in the case. It does not create an unfair advantage to anyone; rather it levels the playing field.

[388] And finally, the Court appreciates that an Order requiring the government to pay for a lawyer does indeed touch upon functions typically assigned to another branch of government. But it does not do so significantly. The Order is tailored to remedy avoid the breach of a Charter right. And again, the government did not make any section 1 arguments.

I. Should the Court Appoint Amicus in the Alternative?

[389] In the alternative, if this decision is reviewed by an appellate court and it concludes that my decision to make an order for state funded counsel was wrong, then I would have appointed Mr. Macri as amicus in the alternative. In so doing, I rely on the decision of Justice Keast in Morwald-Benevides v. Benevides, 2015 ONCJ 532, specifically ¶ 43. I also rely on the decision of Justice Sherr in Children's Aid Society of Toronto v. S.A. ¶ 60 and 63. And I rely on the Attorney General's submission that an amicus order is within my discretion to order.

[390] That said, there are two aspects of an amicus appointment that I view to be inferior in the context of this case. First, I note that Sherr J. chose amicus over state funded counsel in Children's Aid Society of Toronto v. S.A. because the mother was unable to maintain a solicitor-client relationship with her counsel. Two main benefits to appointing amicus curiae as opposed to state funded counsel in Children's Aid Society of Toronto v. S.A. were that the mother would be unable to discharge amicus, and the Court was able to have input into and direct the amicus as to what assistance it needed. In short, amicus was preferable in a case involving an ungovernable litigant.

[391] In this case, amicus is not the preferable choice, precisely because there would be no solicitor-client relationship. There is no issue with the grandmother hiring and firing lawyers, or with her ability to instruct counsel. I note that all counsel for all other parties, the foster parents and the child in this case, who are all essentially state funded in one way or another, have full-fledged counsel, in authentic solicitor-client relationships. By appointing amicus for the grandmother, she is put on a different footing in respect of her representation. If I accept the Attorney General's argument that the adversarial system will flesh out H.C.'s best interests, then full representation provides the most robust presentation and testing of the evidence in this case.

[392] The Court prefers not to have to delineate what role counsel should take on in this case, which would be required in an amicus situation. In my view, the most appropriate role for counsel in this case approximates that of an advocate. I accept that counsel for the Attorney General has conceded that I may craft an amicus order to closely resemble an advocate. And I also appreciate that if I appoint a lawyer rather than amicus the grandmother may chose not to call the very evidence and aspects of a plan that are currently missing. While the Court could direct that such evidence be called under the ambit of an amicus order, I decline to do so.

[393] It would be unwise and indeed surprising if the grandmother does not adduce this evidence, given that this was a major part of the argument in support of awarding her state funded counsel. Indeed, as a result of this motion, all of the parties and the foster parents are well aware of each other's positions and what evidence will be required. But I can also monitor this to some degree at the Trial Management Conference. Below, I am directing the parties to attend before me for a Trial Management Conference at which any evidentiary issues for the next step(s) in this case can be dealt with.

[394] Moreover, it may very well be in H.C.'s best interests for the grandmother to get strategic advice from a competent lawyer about the strength and weakness of the various positions she intends to take, and how to best advance her case. This should also serve to focus the trial and limit the evidence to that which is necessary. It is the Court's expectation that the appointment of counsel will make the conduct of the trial more efficient and although Mr. Macri will be in a solicitor-client relationship with the grandmother, he (along with the other counsel) is an officer of the Court and has an obligation under Rule 2 to assist the Court to deal with this case justly, which includes helping the Court to conduct an efficient and timely hearing of this case on its merits.

[395] But irrespective of these comments, if state funded counsel turns out not to have been an option, then I find that despite the limitations of amicus in this context, many of the other reasons that Sherr J. articulated in Children's Aid Society of Toronto v. S.A. for appointing amicus become applicable. So if an appellate court ever decides that I was wrong in appointing state funded counsel, then I would have appointed amicus because:

(a) I find it is in the best interests of H.C. to appoint amicus for the similar reasons to those that I have articulated above, namely to ensure that the Court has the best evidence before it so that it makes the right decision about H.C.'s life;

(b) More particularly, the court needs to have the merits of the grandmother's plan organized and properly presented to the court. Amicus will be able to do this;

(c) The court needs to have the grandmother's reasonable concerns about the society's plan properly explored and presented to the court. Amicus will be able to do this;

(d) Amicus will be able to cross-examine witnesses to ensure that the best evidence is before the court for it to make this important decision;

(e) Amicus will be able to focus on evidence that is relevant;

(f) Amicus will be able to ensure that the grandmother's voice is properly heard at any hearing;

(g) The participation of amicus should increase the likelihood that the court will have a fuller appreciation of the evidence and make the best decision for the child;

(h) The participation of amicus should ensure a fair trial process, the orderly conduct of proceedings and the proper administration of justice.

[396] Also, I would have ordered the conditions set out in paragraph 63 Children's Aid Society of Toronto v. S.A. and M.M. had I made an amicus order.

PART V: ORDER

[397] I make the following Orders:

(a) I have found that H.C.'s section 7 right to security of the person is engaged by the Society's application. I have found that there will be a breach of H.C.'s security of the person unless state funded counsel is made available to his grandmother;

(b) I therefore find that constitutional principles require that B.F. have a lawyer in order that the summary judgment motion and the trial be fair;

(c) I find that B.F. is indigent for the purpose of this application;

(d) I order the Attorney General to provide Mr. Macri (or another lawyer if Mr. Macri declines to act) as B.F.'s counsel to complete the remaining steps in this case, which at the present include a possible summary judgment motion and a trial, and any other steps incidental to completing the case;

(e) Mr. Macri (or the other lawyer) shall be paid at Legal Aid rates and pursuant to Legal Aid policies; and

(f) If there are any issues arising out of this ruling, about costs of this motion or concerning Mr. Macri being paid for the work he did in connection with this motion to secure this appointment, then I may be contacted.

[398] At the September 4, 2018 attendance, I raised with counsel, without deciding, whether having essentially a bifurcated proceeding about disposition consisting of a summary judgment motion about the child's placement and some access issues, followed by an access trial about other access issues, was the preferable procedure to follow, for the resolution of this case. I did so for a number of reasons.

[399] First, the Court is aware that the grandmother will be seeking an adjournment of the summary judgment motion to permit Mr. Macri to prepare for it now that he has been appointed. Second, the evidence to be adduced on the summary judgment motion and at the trial will likely overlap. Third, the nature of any evidence required for the summary judgment motion, particularly about the child's specific culture, may impact their respective positions about an appropriate process. Or it may not. And fourth, if the Court directs a trial on any issues raised on the summary judgment motion, then the trial will be further delayed.

[400] The parties and the foster parents were not prepared to address this issue in full on September 4, 2018. In fairness to them, they did not have advanced warning when I raised the issue. I also indicated that the parties and the foster parents should consider this fully, after receipt of this decision.

[401] Regardless, I also booked December 3, 4, 5, 6 and 12, 2018 for the trial of this matter, and I fixed those dates. It is important to all involved, and particularly to H.C., that this case be completed in a timely fashion going forward. Therefore, if more than 5 trial days are required, I will also make arrangements to offer up to 5 additional days during the week of December 17, 2018. I will be making Orders at a Trial Management Conference to assist focusing this case to ensure that the case is completed within this time frame. I am not saying that 10 days are needed. I will be expecting the parties and the foster parents to come to the Trial Management Conference with suggestions about how to focus the trial.

[402] The parties and the foster parents should take the availability of this extra trial time into account when considering what position to take respecting how the next steps in this case should be resolved.

[403] I booked another Court date for September 28, 2018 at 2 pm to address the next steps in this case. If the parties are unable to agree about whether the next step should be a summary judgment motion or not, or whether there should be an adjournment of it to allow Mr. Macri more time to prepare for it, then Court will need to hear submissions about next steps and/or a plan as to how to ensure that the summary judgment motion is heard prior to the trial, without jeopardizing the fixed trial dates.

[404] To ensure that argument proceeds on this point on September 28, 2018, all counsel should have discussions about these process issues and their respective schedules, and if necessary, they should contact the trial coordinator to get any additional scheduling information, prior to attending on September 28, 2018.

[405] The parties shall also complete the Trial Management Endorsement attached hereto and be prepared to finalize it on September 28, 2018.

[406] Finally, now that the grandmother will be represented by fresh counsel, the Court recommends that the parties consider re-attending before Justice Scully, who was the case management judge, for a final Settlement Conference. As the case management judge who was involved with this case and the parties for quite some time, Justice Scully will be very knowledgeable about the history of this matter, the competing positions, and their merits. I am prepared to schedule that date too at the September 28, 2018 attendance.

Released: September 13, 2018

Signed: Justice Alex Finlayson