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.

Court Information

Ontario Court of Justice

Date: 2018-10-18

Court File No.: Toronto CFO-16-14777-A1

Between:

Catholic Children's Aid Society of Toronto Applicant

— AND —

A.T. Respondent

— AND —

B.W. Respondent

— AND —

T.M. Respondent

Before: Justice Alex Finlayson

Heard on: October 16, 2018

Endorsement released on: October 18, 2018

Counsel and Parties

• Mei Chen — counsel for the applicant society
• A.T. — on her own behalf
• Tammy Law — counsel for the respondent, B.W.
• T.M. — on his own behalf
• S. Kermanshahi — counsel for the Office of the Children's Lawyer, legal representative for the child, A.T-W.
• J. Stanley Jenkins — counsel for Legal Aid Ontario
• Alyssa Armstrong — counsel for the Ministry of the Attorney General, Crown Law Office Civil

ENDORSEMENT

ALEX FINLAYSON J.:

[1] This is a child protection proceeding that concerns two children, C.T., who is 12 years old, and A.T-W., who is now 4. The mother is A.T. N.T.'s father is T.M. T.M. has not filed material in these proceedings. A.T-W.'s father is B.W.

[2] This Endorsement relates to two trial readiness issues. Regarding the second trial readiness issue, this Endorsement provides the Court's written reasons for appointing amicus curiae at the appearance before me on October 16, 2018.

A. The Pleadings In this Case

[3] This case commenced on December 2, 2016. In its initial protection application, the Applicant, Catholic Children's Aid Society (the "Society") sought a finding that both children are in need of protection and a 6 month supervision order with the children in their mother's care. There have been a number of developments in this case since it commenced, which I do not intend to repeat here in full.

[4] Most recently, on September 14, 2018, the Society amended the application to seek no orders relating to N.T. Before taking this step, the Society had intended to ask the Court for permission to withdraw the protection application as it pertained to N.T., but as the Office of the Children's Lawyer (the "OCL") intended to take a position on N.T.'s behalf, the OCL opposed the Society's request to withdraw. Counsel for the OCL said N.T. had views and preferences regarding the disposition respecting A.T-W. and as such she wished to participate in the trial. Consequently, the parties agreed that the Society's request to withdraw respecting N.T. would be dealt with at trial, when the issues concerning A.T-W. are dealt with. It was in that context that the Society amended the application to delete reference to the orders sought respecting N.T.

[5] Then, about two weeks later, on September 28, 2018, N.T. went to live with his father, T.M.

[6] As set out above, T.M. has not filed material in this proceeding.

[7] Thus, the Society is once again amending its application to address this development. Although the Society is hopeful that the claims concerning N.T. will settle, it needs to amend the application in case they do not. And the amended amended application will need to be served on the other parties, one of whom never responded to the previous pleadings.

[8] It is important that this case proceed to trial quickly. There have been a number of court appearances in this proceeding. The attendances have included two motions concerning A.T-W.'s temporary placement, one contentious access motion, and two separate contempt motions. Thrown into the mix are that issues have presented about the mother's and the father, B.W.'s lack of representation at times.

[9] So at a further TMC that I held on October 16, 2018, I indicated that the Society must amend its pleading in a timely fashion to ensure that the trial in this case is not delayed. As I will explain, the parties went to assignment court on October 16, 2018 after the attendance before me. At assignment court, O'Connell J. booked a number of trial dates in December. In keeping with the requirement that these procedural and housekeeping issues be addressed quickly, O'Connell J. made a scheduling order for the exchange of this new round of pleadings to avoid the trial getting delayed.

[10] I next deal with the mother's lack of representation.

B. Background Regarding the Amicus Order

[11] Unfortunately the mother is now unrepresented again. The mother has had three lawyers in this case. She was initially represented by Carolyn McNeill, then Deborah Lovinsky, and then Lisa McCullough. I was not the case management judge when the mother was represented by Ms. McNeill.

[12] However, soon after I became the case management judge following the prior case management judge's retirement, I intervened respecting representation for the parents in this case. The first time that I did that was on or around November 24, 2017. I did so to ensure that both parents, specifically A.T. and B.W. had representation. Just prior to this Court's intervention back then, Ms. Lovinsky had brought a motion to be removed as the mother's solicitor of record due to a breakdown in the solicitor-client relationship, which I granted. At the same time, there were serious issues about B.W. gaining access to A.T-W., but he was unrepresented and was having difficulty navigating the litigation.

[13] As such, I wrote an Endorsement and indicated that I was contemplating appointing counsel for both parents. I directed the Society to send my endorsement to Legal Aid Ontario ("LAO") and to the Attorney General for Ontario ("AGO"), and I adjourned the representation issue back then to give LAO or the AGO an opportunity to make submissions.

[14] On December 12, 2017, Mr. Jenkins from LAO and Ms. Armstrong from the Ministry of the Attorney General, Crown Law Office Civil, attended Court for the first time to make submissions. Mr. Jenkins advised the Court that LAO had approved a new certificate for the mother. As a result, A.T. was able to retain Ms. McCullough and no further Orders from this Court were made.

[15] But as the question of the father's representation did not resolve, I scheduled a Charter motion for the father only to seek state funded counsel. The father retained Tammy Law to bring that motion, and the issue later settled without the need for argument. Ms. Law has been B.W.'s state funded counsel since then.

[16] After the question of the father's representation was resolved, I heard motions concerning a change the child's placement and regarding the father's access. I declined to place the child with the father on a temporary basis as he asked, but I increased his access to A.T-W. I also heard a contempt motion concerning the mother's conduct around B.W.'s access to A.T-W. I found the mother in contempt of my prior access order.

[17] Those motions were disposed of in February and March 2018.

[18] Since then, the mother is no longer represented by Ms. McCullough.

[19] Despite the contempt finding, there have also been ongoing problems regarding compliance with this Court's orders. The mother's position is that the father has sexually abused A.T-W., which has been investigated and not verified.

[20] Even though she is now no longer working with her third lawyer, LAO has nevertheless authorized another change of lawyer so the mother may retain a fourth lawyer.

[21] To date, she has not done so.

[22] The Court attempted to have this case proceed to assignment court on September 12, 2018, but the parties were not ready to proceed. Leading up to that date, the Court attempted to complete a Trial Management Conference with the parties, without success for various reasons. There are Endorsements in the record that reflect what has transpired at prior attendances in this case, which I do not intend to repeat here.

[23] I was able to partially complete the Trial Management Endorsement with the parties on September 12, 2018. However it does not address the mother's case. Thus, I scheduled a further attendance before me to complete this Trial Management Conference, hoping that the mother would have counsel. But she did not.

[24] The difficulty getting this case ready for trial stems in part from the fact that the mother has been representing herself for several months. Based on how the conferences have unfolded during that period, I am worried that the trial will get derailed if the mother does not get assistance to present her case.

[25] Thus, on October 3, 2018, I intervened again regarding representation issues. After having given the mother opportunities to retain counsel with her new LAO certificate, I indicated that I was considering appointing amicus. I indicated I was considering this even though the mother has the legal aid certificate authorizing her to hire another lawyer of her own. Once again, I asked that my Endorsement of October 3, 2018 be sent to LAO and to the AGO.

[26] On October 16, 2018, Mr. Jenkins and Ms. Armstrong attended court for the second time.

C. The Parties' Positions

[27] At the October 16, 2018 appearance, the mother opposed to the Court appointing amicus. She wants to hire her own lawyer with her new legal aid certificate. At a prior attendance, I suggested that the mother speak to duty counsel about the role of amicus so she could get summary advice and be able to take a position about whether the Court should appoint amicus. She did in fact speak to duty counsel about this. However, she declined duty counsel assistance on October 16, 2018 when the question of whether to appoint amicus was argued.

[28] Neither the Society, the father, B.W., nor the OCL took a position about whether the Court should appoint amicus, nor about the terms to be included as part of the amicus appointment.

[29] Mr. Jenkins advised that LAO will assist to source a lawyer to act as amicus if the Court appoints amicus. Normally LAO may provide more than one name, but in this case given the impending trial, LAO says that it may only be able to source one lawyer. It asked for about a week to do this.

[30] LAO took no position about the terms of the amicus order. At my suggestion, Mr. Jenkins did indicate that LAO was agreeable for the Court to set preliminary terms of the amicus order, subject to a further TMC with the trial judge at which the amicus might have some additional input about his or her mandate.

[31] The AGO took no position about amicus provided that amicus is paid at legal aid rates.

[32] After hearing submissions on October 16, 2018, I indicated that I was appointing amicus. I indicated that I would release written reasons later. These are the written reasons.

D. Analysis

[33] There are a number of challenging issues in this case. It will be very difficult for a lay person like the mother to navigate the trial in this matter on her own. As Justice Sherr recently said in Children's Aid Society of Toronto v. S.A., 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." I agree.

[34] The difficulty with the mother's position is that she has been unable to retain another lawyer since no longer working with Ms. McCullough. She has been without counsel for several months. The Court is very concerned that she will not be able to retain counsel for trial. As set out above, the Court is concerned that the trial will be derailed.

[35] Alternatively, given that she has had three lawyers, the Court is concerned that she will not be able to keep a lawyer if one is in fact hired. If she does hire another lawyer, the Court is concerned that there may be yet another breakdown in her solicitor-client relationship if the mother gives instructions with which the lawyer does not agree, or if there are issues/disagreements with the advice that may be given to her by the lawyer.

[36] The Court is not prepared to delay the trial any further. The case management process is no longer effective. The mother feels that the case management judge is biased. The mother has chosen to focus on her belief that the Court is biased at a number of attendances, rather than focusing constructively on coming up with solutions for a settlement, or at least on the Trial Management issues, so that this case can proceed to a final hearing.

[37] The children need finality.

[38] At the assignment Court on October 16, 2018, O'Connell J. allocated ten valuable days of trial time for this case in December.

[39] It is important that the case proceed in an organized fashion.

[40] The issues that the mother wants to raise are serious.

[41] The Court wants to ensure that the trial judge is in a position to fully hear from the mother, but also that the litigation is resolved for the sake of the children. It is in the best interests of the children that there be a full record before the Court and that will be best achieved if someone is assisting the mother.

[42] In summary, the Court is concerned that the trial will either not proceed in an organized fashion, that the mother's perspective will not be properly presented to the Court, that the trial will be chaotic given the absence of representation for the mother, or that the trial will not conclude in the time allotted if there is no legal assistance to present the mother's case. Ultimately, this will be contrary to the children's best interests if any of these things happen. It is for these reasons that I indicated to the parties, to LAO and to the AGO at the appearance before me on October 16, 2018 that I was appointing amicus.

[43] I appreciate that there is no solicitor-client relationship between the mother and amicus. The mother is not able to discharge amicus and the amicus will not be bound to follow the mother's instructions.

[44] Given these limitations, I pause to note that the mother is free to continue to try to retain her own counsel for the trial with the fresh legal aid certificate she has been given, if she can find a lawyer to represent her. Mr. Jenkins confirmed that her certificate will continue to be valid even if amicus is appointed. However, I note again that trial dates have been set. Subject to the trial judge, I have made my view clear that this trial should proceed without any further adjournments. The new lawyer, if the mother hires one, needs to be ready for trial. But as I cannot bind the trial judge, if the mother gets her own counsel then I leave it to the trial judge to decide that amicus may no longer be required or how, if at all, that impacts trial scheduling. Or the trial judge may decide to keep amicus involved even if the mother retains counsel.

[45] In setting the terms of the amicus order (see below) I rely on the decision of Sherr J. in Children's Aid Society of Toronto v. S.A., 2017 ONCJ 553. I echo his comments at paragraph 60 of that decision, and I find that:

(a) It is in the best interests of the children that a final decision be made in a timely manner;

(b) There is a concern that the mother may not find another lawyer or be able to sustain a working relationship with another lawyer;

(c) The breakdown of the mother's relationship with any new counsel, if the mother is able to retain counsel and there is a further breakdown of her relationship with counsel, may derail the court process and leave the child in legal limbo while representation issues arise again;

(d) The mother will not be able to terminate amicus as only the court can do this. This will ensure that the process is not delayed;

(e) The court needs to have the merits of the mother's plan organized and properly presented to the court. Amicus will be able to do this;

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

(g) Amicus will be able to cross-examine witnesses presented by the Society, father and the child to ensure that the best evidence is before the court for it to make this important decision;

(h) Amicus will be able to focus on evidence that is relevant and will not be bound to follow the mother's instructions to explore irrelevant evidentiary areas. This restriction will be to her benefit;

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

(j) 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;

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

E. Terms of the Amicus Order

[46] Therefore, by this Endorsement, I will set some preliminary terms and conditions of the role of amicus in this matter. This is only being done in a preliminary manner because the Court will want to receive input from amicus. If these terms need to be changed or modified, this may be done at the TMC with Pawagi J.

[47] The preliminary terms are:

(a) Amicus is hereby appointed in this matter;

(b) Amicus shall be paid at legal aid rates;

(c) Amicus is appointed to assist the Court. He or she will not take instructions from the mother, but shall consider her views and preferences on any relevant matter;

(d) Only the Court can terminate amicus, or change the terms and conditions of the appointment;

(e) Amicus will be entitled to complete and continuing file disclosure from the society. The Society should prepare this disclosure to be delivered to amicus within 30 days of this date;

(f) The Society shall immediately attend at this Court and ensure the table of contents is up to date and accurate. It shall then obtain a table of contents to provide to amicus;

(g) The Society shall then provide amicus with copies of any documents it requests from the continuing records in this matter, including all 14B motions and all endorsements that are filed in the endorsement record, within 10 days of such request. If any documents are missing from the Society's file, then the Court shall provide copies to the Society or to amicus free of charge;

(h) Amicus shall attend at each court appearance and make submissions that are relevant to the mother's interests, taking into account her views. Amicus, and not the mother, will determine what submissions are appropriate;

(i) Amicus shall be able to prepare or amend pleadings, bring pre-trial motions (if any are necessary) and file relevant evidence supporting the mother's interests, if he or she deems it meritorious;

(j) If there are any motions brought prior to trial (which the Court is not envisioning at this time), amicus shall present relevant evidence, make submissions and take a position that best represents the mother's interests;

(k) Amicus is entitled to make opening statements, call, summon and examine witnesses who will support the plan put forward by amicus on the mother's behalf, cross-examine witnesses called by the Society, the father or the child and make evidentiary objections at any trial;

(l) Amicus is entitled to order the transcripts of any court appearance if amicus deems that to be necessary. In that vein, the mother has already ordered several transcripts of prior attendances. Thus, there should be transcripts that are readily (quickly) available to the amicus for several court attendances;

(m) A copy of this decision shall be sent to Ms. Chen, the mother, Ms. Law, the father T.M., Ms. Kermanshahi, Mr. Jenkins and Ms. Armstrong. The Court also asks that the Society forward this endorsement to the mother and to the father T.M. out of an abundance of caution to ensure that each receives it;

(n) LAO agreed to facilitate finding a lawyer who is willing to act as amicus within one week;

(o) LAO or the amicus it sources shall file a 14B with me advising who is the proposed amicus. I will then appoint the specific amicus by name;

(p) The next Court date is November 19, 2018 before Pawagi J. for the TMC;

(q) If there are any issues with the terms of the amicus order then they may be addressed with Pawagi J.; and

(r) Otherwise, the amicus should be ready to complete the TMC Endorsement referred to above, which forms part of the Court's September 12, 2018 Endorsement.

Released: October 18, 2018

Signed: Justice Alex Finlayson