Court File and Parties

Court File No.: FS-19-9694 Date: 2020-06-09 Ontario Superior Court of Justice

Between: V.R. Appellant – and – Catholic Children’s Aid Society of Toronto Respondent Mario Paiva Intervenor

Counsel: Jessica Gagné and Andrew Burgess, for the Appellant Chris Andrikakis, for the Respondent Susan Sack and Andrea Acri, for the Intervenor

Heard at Toronto: January 27 and May 19, 2020

On appeal from the decision of Justice Pawagi dated April 5, 2019.

C. Horkins J.

The Background

[1] The appellant is the mother of the child D.R. (“the child”). She appeals the final order of Justice Pawagi dated April 5, 2019 made at the end of four-day trial pursuant to the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”).

[2] The trial judge found the child in need of protection and placed the child in the extended care of the Catholic Children’s Aid Society (“Society”), with no order for access.

[3] The child’s father did not participate in the trial and is not participating in this appeal. He was in Canada illegally and has been returned to Portugal. The mother is also in Canada illegally. A removal order has been issued against her.

[4] The child suffered serious injuries while in the parents’ care. The first occasion was on November 18, 2017, when the child suffered a spiral fracture of her upper left arm. The child was just over one month old at the time of this injury. She was brought into the Society’s care on November 20, 2017. The child was treated at The Hospital for Sick Children.

[5] Dr. Shouldice is the Division head for Pediatric Medicine at the Hospital for Sick Children, and the overseer of the Suspected Child Abuse and Neglect unit. She was qualified to testify as an expert in the area of pediatrics and the assessment of suspected injuries to children. Dr Shouldice’s expertise was not challenged.

[6] The parents did not provide an explanation for the arm fracture injury until one week later when the father explained that he grabbed the child above the elbow as she slipped from his grasp. Dr. Shouldice concluded that the father’s explanation was consistent with the nature of the child’s injuries.

[7] The child was placed with her maternal grandmother on December 18, 2017, on an extended access visit, and then returned to her parents' care on a temporary supervision order on January 17, 2018.

[8] On February 12, 2017, the parents brought the child back to the Hospital for Sick Children. The child had suffered seizures, was not breathing well, and her eyes were rolled backwards. She was four months old.

[9] The child was admitted to the hospital. She had fluctuating levels of consciousness, and there was a period when she stopped breathing. Dr. Shouldice, concluded that the child had suffered subdural hemorrhages and multi-layered retinal hemorrhages. The child had no medical disorders that could account for these medical findings. Dr. Shouldice concluded that the most likely mechanism for the injuries was blunt force trauma, or inertial forces, or a combination of the two.

[10] A Court order placed the child in the Society’s temporary care on February 14, 2017. The child has remained in the Society's care since that time.

[11] On April 5, 2019, the trial judge found the child in need of protection and placed the child in the extended care of the Society with no access.

[12] The child’s foster parents wish to adopt her should she become free for adoption. It is the Society's plan to place the child with this family.

[13] This appeal commenced on January 27, 2020 and was adjourned to May 19, 2020, to allow the mother to obtain fresh evidence that she intended to rely upon.

Grounds of Appeal

[14] The mother raises the following grounds of appeal:

(1) Ineffective Counsel: Mario Paiva (“trial counsel”) did not request and/or review complete disclosure from the Society before trial. He did not properly request Legal Aid Ontario (“LAO”) for funding to retain a defence medical expert. As a result, he ineffectively cross-examined the Society’s medical expert at trial and failed to pursue avenues of cross-examination of the Society’s witnesses.

(2) The trial judge erred in adopting the “unexplained injury principle” contrary to s. 74(2) of the Children Youth and Family Services Act. The trial judge erred because she reversed the onus of proof and shifted it to the mother.

(3) The trial judge erred in law because she applied the wrong legal test for deciding the issue of the mother’s access to the child.

Standard of Review

[15] The standard of review on an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error.

[16] On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

[17] With respect to findings of fact, an appellate court “may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” (H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 4). The Supreme Court of Canada went on to say (at para. 55) that the language of “palpable and overriding error” and “clearly wrong” found in the case law “encapsulate the same principle: an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”

[18] In child protection cases, appellate courts owe a high degree of deference to the trial judge’s decision. As the court stated in P.(D.) v. S.(C.), [1993] 4 S.C.R. 141 at p. 192: “On issues of credibility, a trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings” (see also Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at para. 33; Children's Aid Society of Toronto v. S.A.C., [2005] O.J. No. 4718 (S.C.) at paras. 10 and 12; aff’d 2007 ONCA 474).

[19] Finally, as the court stated in Children's Aid Society of Toronto v. V. L., 2012 ONCA 890 at para. 15; leave to appeal refused [2013] S.C.C.A. No. 1112) “the court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.”

Summary of Decision Under Appeal

[20] This summary provides an overview of the trial judge’s Reasons for Judgment (“reasons”) that were delivered orally. The reasons are considered further as the grounds of appeal are addressed.

[21] The trial judge conducted a blended trial for the protection finding and disposition.

[22] The trial judge set out the facts and noted that they were not disputed. The child suffered serious injuries on two separate occasions (as set out above) while the child was in the care of the parents. There was no third party who had care of the child when the injuries occurred.

[23] Dr. Shouldice examined the child and prepared a report for each incident. When the trial judge qualified her as an expert in the area of assessment of suspected injuries in children, the trial judge noted that the doctor had previously been qualified in this area 70-75 times in family and criminal cases.

[24] The trial judge acknowledged that Dr. Shouldice accepted the father’s explanation for the first incident.

[25] The trial judge then reviewed the facts concerning the second incident. On the evening of February 11, 2018, the child was crying and would not sleep. The mother was frustrated and stressed. The child had a cough and a stuffed nose. On February 12, 2018 at 3 a.m., the mother decided to take the child out for a walk. The parents argued and the mother went outside on her own. She walked to the gas station to buy cigarettes and returned at 4 a.m. When the mother returned, the father told her that the child “had an attack” while she was gone. They later learned that it was a seizure. He said that the child’s body was stiff, she was not breathing well, her eyes had rolled backwards, and she was not responding. He had tapped the child and there was no response.

[26] The mother thought the father was overreacting because the child looked normal when she returned home. They put the child to bed, and she fell asleep. The mother went to work and told the father to take the child to the hospital if it happened again.

[27] Around 10 a.m., the father called the mother at work and said that the child had another seizure. When the mother got home, the child looked normal. The parents decided to take the child by taxi to the Hospital for Sick Children. While a nurse was checking the child, another seizure happened. The child had fluctuating levels of consciousness. At points, she stopped breathing and her heart rate dropped. The child was placed on a ventilator and moved to the Intensive Care unit.

[28] The trial judge reviewed Dr. Shouldice’s evidence. Dr. Shouldice concluded that the child had subdural haemorrhages (bleeding in the brain) and multilayered retinal haemorrhages (bleeding within the lining of the eyeball) that were more numerous in the right eye than the left eye.

[29] Dr. Shouldice watched four video clips that the father had taken during one of the seizures. The videos revealed a child with a reduced level of consciousness, abnormal breathing and seizures beginning at 10:23 a.m. on February 12, 2018. Dr. Shouldice explained that the videos revealed “abnormal movements typical of infant seizures”. The father told Dr. Shouldice that he hit the child on her back to try and revive her. The trial judge described the video clips as “disturbing to watch”.

[30] Dr. Shouldice stated that the recorded episodes, if viewed by a “medical provider would have prompted immediate emergency intervention to assess and support vital signs and treat the seizures to prevent coma, secondary brain injury and death”.

[31] The episodes occurred more than two hours before the child arrived at the hospital. Dr. Shouldice explained that the delay in taking the child to the hospital placed the child at a “higher risk for low oxygen damage to the brain … at increased risk for developmental delay, long term neurological problems and learning difficulties”.

[32] The child had no medical disorders to explain the medical findings. Dr. Shouldice considered and ruled out possible medical causes, such as bleeding disorders or metabolic disorders because the child did not have any of the symptoms that are associated with such disorders. The structure of the child’s brain was normal and there was no malformation to explain the bleeding. There was no injury on birth that could be the cause and a brain scan done at the age of one month was normal.

[33] Dr. Shouldice concluded that the most likely mechanism for the injury was blunt force impact or inertial forces or a combination of the two. She described inertial force as forceful acceleration and then deceleration from applied trauma or shaking. It was the doctor’s opinion that the injury occurred a few minute or hours preceding the onset of the symptoms.

[34] The trial judge reviewed the child’s progress. The child is doing well in the foster home and meeting her milestones and is “even advanced”. The Society intends to place the child for adoption with the foster family.

[35] After the child was removed from the parents’ care, the father was deported. The mother experienced some mental health difficulties. She expressed suicidal thoughts and was diagnosed with postpartum depression. The mother’s supervised visits with the child were going well.

[36] The trial judge accepted that the parents had provided an adequate explanation for the first incident (the arm fracture). Dr. Shouldice had accepted this explanation.

[37] What was in dispute at trial was whether the parents had provided an adequate explanation for the second incident. The trial judge carefully considered the parents’ explanations and the opinion of Dr. Shouldice. The doctor had rejected the parents’ explanations.

[38] The father only had one explanation. Between video clips he hit the child on the back to try and revive her. Dr. Shouldice explained that this alone would not cause the injuries. The trial judge noted that this attempt to revive the child occurred after the child had already displayed symptoms of harm on the video clips, so the father’s actions could not logically be the cause of the symptoms.

[39] The mother provided four explanations. The trial judge considered and rejected each explanation.

[40] First, the mother blamed the hospital for the seizures. She suggested that the child’s head was pressed up against the metal railings of the hospital crib. Dr. Shouldice explained that the baby was not mobile enough to cause injury to herself. More importantly, the seizures all occurred before the baby was placed in a hospital crib.

[41] Second, the mother believed the child had an an infection that caused the seizures. Dr Shouldice explained that there was no indication that the child had an infection. This explanation was rejected.

[42] Third, the mother said that the injury may have been caused when she shook the child while the child was in a car seat. The mother did not tell the Society about the car seat incident until February 21, 2108. She told the case worker that her mother saw her shaking the child in a car seat on one occasion. The mother told the Society worker that she did not recall doing this.

[43] The Society case worker then spoke to the maternal grandmother who described the baby crying and her daughter shaking the car seat with a lot of force. This happened on “some Sunday” before the seizures happened. The grandmother did not tell the Society about this incident because she said it would not make any difference, “it was not worth it” and “I felt it was a normal thing to happen”.

[44] The Society case worker then met the mother again. The mother revealed that she felt uncomfortable being alone with the child during access visits because she was afraid that she might shake the child.

[45] At trial, the mother testified that she did recall the car seat incident but did not think that she had applied the force to the car seat that her mother described.

[46] The trial judge rejected the car seat explanation. It was Dr. Shouldice’s uncontradicted evidence that the injury event had taken place within minutes or hours of the seizures. The mother testified that the child had no symptoms immediately after the car seat shaking and both she and her mother minimized the force that was used while the child was in the car seat.

[47] Dr Shouldice rejected the car seat explanation. The doctor explained that there was a paucity of detail about the car seat shaking and it happened days before the seizures. Further, the forceful impact and movement of the head required to cause the subdural hemorrhages, is typically minimized when a child is properly restrained in a car seat.

[48] After carefully considering the evidence, the trial judge concluded that the “car seat explanation not only is not an adequate explanation it does not even meet the threshold of any explanation at all because it is so hypothetical”.

[49] Four, the mother testified that the injury was caused by the father when she left the apartment between 3 a.m. and 4 a.m., or after she went to work on February 12, 2018. Since the father was charged with assaulting her, the mother testified that he had demonstrated a propensity to physical violence. The trial judge rejected this explanation. The father recorded the seizures and immediately showed the videos to the doctor. The trial judge found that if the father was responsible for the injuries, he was not likely to have video tapped the child and shown the tapes to the doctor. Further, the trial judge noted that the mother exhibited odd behaviour on February 12, 2018 because when she could not get the child to sleep, she left for a walk between 3 and 4 a.m.

[50] In summary, the trial judge rejected the parents’ explanations. The judge relied on the “unexplained injury principle”. She found it was not necessary to prove which caregiver caused the harm, if one or the other ether caused the harm or failed to protect the child from the other parent. On a balance of probabilities, the child was injured in the care of the parents. There was no other reasonable explanation for the injures other than they were intentionally inflicted by the mother and/or father. They were the only ones with a reasonable opportunity to inflict this harm. As a result, the child was found in need of protection.

[51] Turning to the disposition, the trial judge identified the “relevant orders” that were available under ss. 101 and 102 of the CYFSA. She started with the least restrictive option, placing the child with the mother or maternal grandmother under a supervision order for no more than 12 months. The trial judge reviewed the factors in s. 74(3) of the CYFSA and explained why a supervision order was not in the best interests of the child.

[52] The trial judge reviewed the evidence of Dr Khan, the mother’s treating psychiatrist. He saw no reason why the mother posed a risk to the child. Dr Khan stated, “I am of the opinion that the mother’s denial and her not being present when the baby had the seizures and now given her present clinical status, I would say the mother is capable of parenting her child”.

[53] The trial judge found that Dr Khan was not qualified to give an opinion on the risk that the mother presented for the child. The trial judge placed no weight on this doctor’s evidence. It conflicted with Dr. Shouldice’s opinion that the injury preceded the seizures by minutes or a few hours. As a result, the mother’s lack of presence at the time of the seizures was “not determinative”.

[54] The trial judge concluded that it was not in the child’s best interests to be returned to her mother’s care. There was no condition of supervision that the court could impose that would protect the child from future harm, since the past harm remained unexplained.

[55] The trial judge considered and rejected placing the child with the maternal grandmother. The trial judge noted that the cornerstone of an effective supervision order is trust. As well, the person under the order must meet a minimum threshold of cooperation and reliability. The grandmother failed to meet this threshold. Her evidence was inconsistent. First, she was concerned about the force used to shake the child and then she was not. When she was concerned, she did not notify the Society. The grandmother did not understand the child’s injuries. She was also dismissive of the idea that she would have any concerns about the injuries and her daughter’s care of the child.

[56] This left the Society’s plan of care to consider. No other plans of care were presented. The trial judge found that the Society’s plan was in the child’s best interests. The child was doing extremely well in their care. The plan offered the child permanence and stability as part of a loving family.

[57] The Society worker reported that the access visits were going well but the child had no visible reaction on parting. The child had only been in the mother’s care for 2 non-consecutive months and there was no evidence of a beneficial and meaningful relationship between the child and mother.

[58] The child was placed in the Society’s extended care with no access, to free the child up for adoption by her foster parents. I will consider the access order further when assessing this ground of appeal.

The Fresh Evidence

[59] There are three sources of fresh evidence. The fresh evidence of Mr. Paiva and the Society’s fresh evidence is filed on consent. The fresh evidence that the mother seeks to file is disputed.

[60] Mr. Paiva’s fresh evidence responds to the ineffective counsel ground of appeal and will be addressed below, as needed.

[61] The Society filed an affidavit from Elizabeth Holloway that updates the court on the child’s health and circumstances since the trial. Ms. Holloway has been the child’s care worker since February 2018. In this role, she visits the child regularly at the foster home to monitor her growth and development, and to observe her relationship with the foster parents. Ms. Holloway has attended several medical appointments jointly with foster parents and the child. She has also supervised many access visits between the child and her family and facilitated plan of care meetings where the child’s health and well-being are discussed at length.

[62] Ms. Holloway’s evidence confirms that the child has not had any major health issues during the past two years, other than occasional coughs and colds. To the best of Ms. Holloways knowledge, the child has not had any seizures since her discharge from the Hospital for Sick Children following the injuries she suffered in her parents' home.

[63] The child is meeting and surpassing many of her developmental milestones. She is extremely bright, very social and engaging, and full of energy.

[64] The child gets along very well with the other children and adults in the foster home. Ms. Holloway states that the child has developed a strong positive attachment with both foster parents and their children. Ms. Holloway has consistently observed that when the child is distressed or needs something, she looks to her foster parents for support and comfort and is easily calmed with their support and presence.

[65] It is Ms. Holloway’s understanding from speaking to the foster parents that if the child is available for adoption, they would be happy to adopt her.

[66] On December 12, 2018, Ms. Holloway attended an appointment with the child and her foster parents held at the Hospital for Sick children, with her pediatrician, Dr. Brie Varna. On this visit, Dr. Varan discontinued the child’s prescription for Ativan (the drug had been prescribed after the seizures). The foster parents reported that the child had not suffered any seizures while in their care.

[67] In November 2019, Ms. Holloway attended another appointment with Dr. Yama at the Hospital for Sick Children. Dr. Yama was advised that the child was showing some sensitivity to light. Even with the low levels of sunlight in November, the light bothered the child. Dr. Yama suggested that this sensitivity could be due to the scarring in the child’s retina. The child now regularly wears sunglasses when she is outside, even in the winter, and this seems to be helping. The child was referred to a follow up with the pediatric ophthalmology clinic at the Hospital for Sick Children. This appointment is still pending.

Motion – Re Mother’s Fresh Evidence

[68] The mother seeks to file fresh evidence and the respondents contest her motion. Her fresh evidence consists of two reports from Dr. David Ramsay dated March 1 and March 3, 2020. The March 1 report has two appendices, a reference list of cited articles and Dr. Ramsay’s curriculum vitae. In the March 3 report, Dr. Ramsay answers questions that mother’s appeal counsel posed.

The Legal Framework

[69] Section 121(6) of the CYFSA provides that the court may receive further evidence relating to events after the appealed decision.

[70] The mother relies on the test for fresh evidence as out in Palmer v. The Queen, [1980] 1 S.C.R. 759. This test requires the appellant to satisfy four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[71] As noted in Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at paras. 35-36, the test for fresh evidence in a child protection matter is “undoubtedly more flexible than in other types of cases” where the Palmer test is applied. Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165, at p. 188 requires “a sufficiently flexible rule”. The elements of this flexible rule are set out by the Supreme Court in M.(C.) and in several recent appellate decisions (Children’s Aid Society of Oxford Country v. W.T.C., 2013 ONCA 491, 308 O.A.C. 246, at para. 43; Children's Aid Society of Toronto v. P.M., 2015 ONCA 695, 71 R.F.L. (7th) 44, at paras. 22-23; L.M. v. Peel Children's Aid Society, 2019 ONCA 841 at para. 84). Fresh evidence should be admitted in child protection proceedings if the following is satisfied:

(a) it could not have been adduced before; (b) it is highly relevant in that it enables the court to make determinations on an accurate picture of the situation at hand; (c) it is potentially decisive as to the child’s best interests; (d) it is credible; (e) it is uncontroverted; and (f) updates evidence submitted between the time of the prior hearing and the appeal

Position of the Parties

[72] The mother argues that the evidence should be admitted. First, she states that Dr. Ramsay’s evidence could not have been adduced at trial because her trial counsel was ineffective. Second, she says that the evidence deals with a decisive issue at trial, the cause of the child’s injuries and the degree of medical certainty around the diagnosis. Third, she states that Dr. Ramsay’s evidence is credible and points to the fact that he was not cross-examined. Lastly, she states that the evidence could reasonably be expected to have affected the result.

[73] The respondents argue that Dr. Ramsay’s reports do not meet the fresh evidence test and should not be admitted for the following reasons. Dr. Ramsay does not have the required expertise and so his evidence is not admissible. His reports are not potentially decisive on the issue of the child’s best interests. Assuming he is qualified, his evidence supports the opinion of Dr. Shouldice and could not be reasonably expected to have affected the result at trial.

Analysis

[74] Applying the flexible rule, the motion to admit the fresh evidence of Dr. Ramsay is denied. First, Dr. Ramsay does not have the expertise to opine on the cause of the child’s injuries. Second, Dr. Ramsay does not dispute Dr. Shouldice’s opinion. In fact, he defers to her expertise. Even if Dr. Ramsay’s evidence is admissible (assuming expertise) it is not “potentially decisive” of the child’s best interests, except to reinforce the opinion of Dr. Shouldice. My reasons follow.

Dr. Ramsay’s Qualifications

[75] The mother seeks to introduce Dr. Ramsay’s expert evidence on the issue of the cause of the child’s injuries and the degree of medical certainty around the diagnosis.

[76] Dr. Ramsay delivered an affidavit with two reports. The respondents did not cross-examine Dr. Ramsay. For this reason, the mother states that his qualifications have not been challenged and this court should accept his expertise. The respondents did not cross-examine Dr. Ramsay on his qualifications or his opinion because in their view it was not necessary. They say it is obvious from the reports that Dr. Ramsay does not have the necessary expertise, and in any event, he accepts the opinions of Dr. Shouldice.

[77] The absence of cross-examination does not mean that this court must accept Dr. Ramsay as an expert or assume that his opinions are unchallenged. It is the responsibility of the court to decide if a proposed expert has the degree of expertise to be qualified on the issues in question.

[78] Dr. Ramsay is without doubt a highly qualified doctor. He is a neuropathologist. As he explains, a neuropathologist is a specialist physician who identifies and interprets abnormalities in biopsies and autopsy samples of the brain, spinal cord, nerves and muscle.

[79] In both reports, Dr. Ramsay acknowledges the limits of his expertise as it relates to the diagnosis and cause of the child’s injuries. In the first report he states at page 2:

[The child] survived her illness; thus, the analysis of her illness depends on evidence from clinical sources. Since I have not examined living infants and children for many decades, my expertise in cases such as [the child’s] is restricted to applying basic principles to those of her findings that I also regularly encounter in my Neuropathology practice, specifically subdural haematomas, retinal haemorrhages and encephalopathies.

[80] Dr. Ramsay relies on the expertise of his clinical colleagues and specifically Dr. Shouldice. At page 4 of his first report, he states:

[The child] has no specific evidence of acute trauma and her parents eventually provided a plausible explanation for the fractured humerus. However, subdural haematomas, though not diagnostic of, are commonly caused by, trauma. In this situation, since there is no reliable test (i.e., a gold standard) to prove that a given triad case is the result of blunt force, the medical proof of trauma relies on the exclusion of any natural diseases that might have resulted in the findings (diagnosis of exclusion).

Since this is a surviving case of suspected child abuse, I rely on the expertise of my clinical colleagues to search for evidence of a natural disease that might explain [the child’s] findings. Dr. Shouldice describes this process in her Report and explains why she has excluded various conditions as the cause of [the child’s] findings. She concludes:

“[The child] …had scattered, mixed density subdural hemorrhages and diffuse, multilayered bilateral retinal hemorrhages when she presented to hospital with seizures at 4 months of age. There was no medical disorder… and no structural or blood vessel abnormality of the brain which would explain these findings…. The most likely explanation for [them]…is a significant, recent injury/ies to the head, resulting from blunt force impacts, inertial forces, or a combination of the two.”

[Emphasis added]

[81] Dr. Ramsay acknowledges that the “diagnosis of exclusion is widely employed and accepted in the assessment of illnesses by clinicians and pathologists.” He explains at page 4 that this is the approach Dr. Shouldice used to rule out the parents’ explanations and possible medical causes for the child’s injuries:

The diagnosis of exclusion is widely employed and accepted in the assessment of illnesses by clinicians and pathologists. Once the diagnosis is established and treatment started, the patient then followed up by their physicians, which allows the efficacy of treatment and the accuracy of the diagnosis to be confirmed and, if necessary, reconsidered if the disease in question is not behaving as expected.

The diagnosis of exclusion is also essential when analysing medicolegal cases of uncertain causation, including triad cases, because trauma will be excluded when a natural cause for the findings is found.

[82] At page 5 of his report, he answers this question: “Is the diagnosis of exclusion reliable for medicolegal purposes?”

The use of the diagnosis of exclusion in medicolegal cases has two weaknesses: (i) The reliability of proof of ‘nothing’ (i.e., of no evidence of a natural illness to explain suspicious findings) is ultimately uncertain (and subject to revision with advances in scientific knowledge) and (ii) the follow-up safeguard is not generally feasible.

Despite these reservations, the diagnostic process used by Dr. Shouldice to assess Diana’s illness is generally regarded as reliable by Paediatricians and their professional associations [4, 10] (see also Page 10 of Dr. Shouldice’s Report).

[83] In his “Summary and Conclusions” at pages 5-6, Dr. Ramsay states:

[The child] presented at 4 months of age with seizures (indicating an encephalopathy), subdural bleeding and retinal haemorrhages (a combination of findings customarily referred to by Pathologists as the triad). She had no bruises, scalp haemorrhages or fractures and therefore no specific evidence of trauma although trauma is a common cause of subdural haemorrhage. The timing of the causal event, which may have been biphasic, is uncertain. She was discharged from hospital after 3 days and her development was normal 10 months later.

No natural explanation for her illness was found. Her findings were attributed to a non-accidental head injury. The nature of the trauma could have been shaking, an impact between her head and a soft surface that left no trace, or a combination. This conclusion was reached using methods that are widely accepted as reliable by Paediatricians and allied clinicians.

The supposition that Diana’s illness was the result of a blunt force head injury depends on how reliable the process of diagnostic exclusion is and whether it is correct to conclude that a case of the isolated triad is always the result of an inflicted head injury, once natural causes have been excluded using contemporary methods.

There remains significant controversy on this topic. All that can be determined from the medical literature is that some cases of the isolated triad are the result of abusive head injury but it is not yet possible to say whether a few, some, most or all such triad cases are traumatic in aetiology.

[Emphasis added]

[84] While Dr. Ramsay states that there remains a significant controversy, he does not relate this to the child’s case. To the contrary, he adopts Dr. Shouldice’s opinion.

[85] In his second report, Dr. Ramsay answers a series of questions that mother’s appeal counsel put to him. Counsel asked Dr. Ramsay to opine on alternative explanations for the child’s injuries. His answers reinforce that he does not have the clinical expertise to address questions related to the child’s injuries and he does not disagree with Dr. Shouldice.

[86] In answer to the following questions, Dr Ramsay replied that he does not have the expertise:

Could a lack of oxygen as a result of choking have caused the seizures experienced by Diana? …Could the administration of [antibiotics] have affected the subsequent blood test results (believed to have taken place the following day) which the hospital relied on in stating that the child did not have a blood infection?

[87] The questions that Dr. Ramsay did answer are not “potentially decisive to the child’s best interests”. Furthermore, none of the answers undermine Dr. Shouldice’s evidence.

[88] Dr. Ramsay was asked if “choking and/or lack of oxygen [could] result in sub-retinal hemorrhaging similar to that experienced by” the child. He replied that “[f]urther, data and opinions in the medical literature suggest that choking and coughing are not convincing causes of retinal haemorrhages although this is not universally agreed.”

[89] Dr. Ramsay was asked, “[c]ould violent vomiting have caused retinal hemorrhaging, subdural hemorrhaging, and/or seizures similar to those experienced by [the child]”. He replied that he could “find no evidence in the medical literature to support the “possibility”

[90] Dr. Ramsay was asked about thumping noises heard in the background of one of the father’s video clips. He replied that there was no evidence of bruises on her back or rib fracture and so it was “improbable that the putative force caused by these thumps resulted in the retinal and subdural bleeding.” He also found no evidence that she had chocked on a “ball-like thing” or that seizures were caused by the father doing CPR.

[91] Dr Ramsay was asked if the child “was shaken by a parent with such force as to cause the subretinal hemorrhaging, subdural hemorrhaging and seizures … is it likely that [the child] would have also had other signs of trauma (i.e. fractured spine)?” Dr. Ramsay replied, “not necessarily”.

[92] Given this force, Dr. Ramsay was asked “would it be unusual for [the child] to have no permanent brain damage” and what can be inferred from the child’s “near-complete recovery”? Dr. Ramsay explained that her degree of recovery means that her seizures were mild. It “does not however exclude trauma as the cause” of the injuries.

[93] I add that while the seizures may have been mild, the fresh evidence from the Society documents that the child still has symptoms. She is wearing sunglasses because of a sensitivity to light due to the retinal damage.

[94] Dr. Ramsay was then asked, “What is the nature and extent of the controversy in the medical community regarding “shaken baby syndrome”?” This answer set out below supports Dr. Shouldice:

The term shaken baby syndrome has been used to refer in general to abusive injuries in infants. However, it is misleading because not all abusive injuries are caused by shaking. Further, biomechanical analysis and biophysical modelling indicates it is impossible to shake an infant with enough force to tear the veins that result in the subdural bleeding (I do not have the expertise to comment on the reliability or otherwise of these studies). Regarding abusive infantile head injuries, autopsy studies suggest it is unusual not to find evidence of a head impact site (i.e., intrascalp bleeding) in infants with subdural bleeding, retinal haemorrhages and an encephalopathy, suggesting impacts alone or a combination of impacts and shaking as a cause of these injuries.

Semantic issues aside, the principal controversy centres on the question: Can subdural bleeding, retinal haemorrhages and/or an encephalopathy in an infant without definitive evidence of trauma (i.e., bruises, soft tissue haemorrhages, fractures) be reliably proven to be the result of an abusive head injury?

The majority opinion, held by most Paediatricians and some Pathologists, is that subdural bleeding, retinal haemorrhages and/or an encephalopathy in an infant without specific evidence of trauma is the result of an inflicted injury, provided that all alternative innocent explanations have been excluded.

The minority opinion, held by many Pathologists, is that subdural bleeding, retinal haemorrhages and/or an encephalopathy in an infant are nonspecific findings and that, in the absence of definitive evidence of head trauma (i.e., scalp bruises, intrascalp haemorrhage, and/or skull fractures), it is not possible to confidently determine that the findings are the result of an inflicted injury, even when all alternative innocent explanations having been excluded

[Emphasis added]

[95] Dr. Ramsay has made it clear that Dr. Shouldice has the experience and that she proceeded to assess the child in accordance with the majority opinion.

[96] The fact that there is a minority opinion is simply a statement by Dr. Ramsay without context. It is not related back in any way to the child’s injuries and the opinion of Dr. Shouldice. At no point does Dr. Ramsay suggest that there is a possible alternative explanation for the child’s injuries and he repeatedly acknowledges that he does not have the expertise to do so.

[97] To the extent that Dr. Ramsay refers to articles and journals in his reports, the content of these references is hearsay. He does not adopt the minority opinion or any statement in any article he refers to.

[98] The last question that Dr. Ramsay answers addresses a test that was not done on the child. At page 3 of his second report, he states:

What impact does this lack of testing [for rare inherited blood disorders and metabolic disorders] have on the court’s ability to rely on Dr. Shouldice’s opinion that Diana’s parents caused her February 2018 symptoms?

The lack of a history of any bleeding problems and [the child’s] normal development thus far suggests that she does not have blood clotting or metabolic problem to account for her illness, as the excerpt from Dr. Shouldice’s Court transcript in your Factum records. Otherwise I do not have the expertise to further analyse this question.

[99] As noted, Dr. Ramsay reviewed an excerpt from the transcript of Dr. Shouldice’s evidence at trial and relied on this when answering the question.

[100] In her trial evidence, Dr. Shouldice explained that the “most common cause of bleeding around the brain is injury to the head”. She ruled out the other possible causes: blood disorders and clotting. The clinical assessment did not reveal any sign of an infection or bleeding disorder. For example, there was no bruising on the child’s body, and no evidence of inherited blood disorders. The doctor tried to test her for a blood disorder, but they had difficulty getting enough blood to run the test. In the absence of such test, Dr. Shouldice explained that if a blood disorder was the cause then the child would have gone on to develop “manifestations of bruising, easy bruising or bleeding especially as [the child] got older and more mobile ... no such concerns have arisen”.

[101] At trial, Dr. Shouldice gave the same explanation for a possible metabolic disorder. She ruled this out because the child did not have any signs of this disorder and has not gone on to develop any manifestations of a metabolic cause.

[102] The mother argues that if her trial counsel had obtained a defence medical opinion, the result at trial would have been different. She relies on the reports from Dr. Ramsay to support this argument. She states that the reports of Dr. Ramsay would have been potentially decisive because Dr. Ramsay has raised the controversy between the majority and minority medical views noted above.

[103] This argument cannot succeed. Dr. Shouldice fully discussed the “current debate in the medical community” about whether shaking alone causes enough force to cause intracranial bleeding. She states that the majority view is as follows:

… the application of significant force to an infant resulting in single or multiple forceful acceleration/deceleration of the head with or without associated impact can result in subdural and other intracranial hemorrhage, brain injury and retinal hemorrhages.

[104] Dr. Shouldice explained that the majority view has been formally endorsed by the literature and a long list of medical associations.

[105] In summary, Dr. Ramsay relies on the expertise of Dr. Shouldice and accepts her opinion. He acknowledges that the diagnosis of exclusion is widely employed in the medical profession and in this case was properly done. There is simply no criticism in Dr. Ramsay’s reports of the steps Dr. Shouldice took to arrive at her opinion. The fresh evidence of Dr. Ramsay supports and confirms the evidence that the trial judge relied upon. It does not support an alternative explanation for the child’s injuries. Allowing the fresh evidence does not assist the mother and serves no purpose.

Analysis – Grounds of Appeal

Ground # 1 - Ineffective Counsel

[106] The mother alleges that trial counsel’s representation fell below the standard of care owed to her in three respects:

(1) Counsel failed to request, obtain or review the Society’s disclosure; (2) Counsel failed to properly seek Legal Aid funding for a defence medical expert, and; (3) Counsel failed to obtain favourable evidence or admissions from the Society's medical expert through cross-examination at trial.

[107] The mother states that if counsel had not failed as set out above, she would have been able to establish at trial an alternative explanation for the child’s injuries. In particular, the mother claims that counsel ought to have been able to establish that the child’s brain and retinal hemorrhaging observed at the hospital on February 12, 2018 following a serious of seizures was caused either by a pre-existing medical condition, and/or a combination of choking on an object aggravated by the father's attempts at CPR.

[108] The mother says that counsel should have been able to raise a serious question as to whether the child’s injuries were caused by a pre-existing medical condition or a choking/CPR combination. She argues that this would have undermined Dr. Shouldice’s opinion evidence such that the trial judge would not have found that the child’s injuries were most likely caused by the application of significant non-accidental physical force.

[109] The test that the mother must meet to establish ineffective counsel is set out in R. v. Archer, [2005] O.J. No. 4348 (C.A.) at para. 119. This test also applies on a child protection appeal when ineffective counsel is a ground of appeal (K.R. v. CAS, 2015 ONSC 3769 (Div. Ct.) at paras. 7-9). The three-prong test is as follows:

1. If the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities.
2. The appellant must demonstrate that counsel’s acts or omissions amounted to incompetence. Incompetence is measured on a reasonableness standard with a “strong presumption that counsel’s conduct fell within the range of reasonable professional assistance” (see R. v. G.D.B., 2000 SCC 22 at para. 27)
3. The appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice.

[110] The starting point in this analysis is the alleged miscarriage of justice. If the mother cannot prove a miscarriage of justice, then the ineffective counsel ground of appeal fails and there is no need to assess the adequacy of trial counsel’s performance. This approach recognizes that it is the “appellate court’s function to determine whether a miscarriage of justice has occurred and not to grade counsel’s performance” (see Archer at para. 121 and G.D.B. at para. 29).

[111] As stated in G.D.B. at para. 28, “[m]iscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised.”

[112] On this appeal, the mother does not argue that there was procedural unfairness. She states that a miscarriage of justice occurred because the verdict is unreliable.

[113] A verdict is rendered unreliable when the appellant demonstrates that if counsel had performed in a competent fashion, there is a reasonable possibility that the verdict could have been different.

[114] This ground of appeal rises or falls on the evidence of Dr. Ramsay. The mother argues that competent counsel would have requested funding to retain a defence medical expert and might have called this expert as a witness at trial or used the expert’s assistance to “more effectively” cross-examine Dr. Shouldice.

[115] To provide some context, Mr. Paiva sent letters to Legal Aid Ontario in August and September 2018 requesting funding from Legal Aid Ontario to retain a defence medical expert. Funding was refused. Legal Aid Ontario declined Mr. Paiva's request for a defence medical expert stating that they "generally do not authorize the payment for a medical doctor to review and summarize the client's medical history", and told Mr. Paiva "Please note that we do not fund professionals to go on ‘fishing expeditions’ to look for something that may or may not help the client in her proceeding".

[116] On this appeal, the mother’s counsel was able to secure funding from Legal Aid Ontario and she obtained two expert reports from Dr. Ramsay. Based on my review of Dr. Ramsay’s evidence set out above, there is no possibility that the verdict could have been different if trial counsel had secured this evidence.

[117] Dr. Ramsay would not have been qualified to testify on the cause of the child’s injuries. I have already explained the nature of Dr. Ramsay’s expertise and his candid and professional admission that he relies on the expertise of clinical colleagues, including Dr. Shouldice to explain the child’s injuries.

[118] If Dr. Ramsay was qualified to testify about the cause of the child’s injuries, his reports do not establish a possibility that the verdict could have been different if trial counsel had secured his evidence. As I have already explained, Dr. Ramsay does not dispute Dr. Shouldice’s opinion. He clearly acknowledges that Dr. Shouldice’s reliance on the diagnosis of exclusion is “widely employed and accepted in the assessment of illnesses by clinicians and pathologists”. In his second report, Dr. Ramsay did not offer any support for the mother’s various alterative causes/explanations for the child’s injuries.

[119] While Dr. Ramsay states that there is “significant controversy” about the diagnosis of exclusion, he accepts that this approach is widely employed and accepts Dr. Shouldice’s opinion about the cause of the child’s injuries. Furthermore, Dr. Shouldice discussed the “debate” in her report about whether shaking a baby could generate enough force to cause intracranial bleeding. She states that this evidence shows that the application of significant force can cause such injuries, and this position is supported by numerous medical organizations.

[120] The mother argues that trial counsel could have used Dr Ramsay’s reports to assist in cross-examination of Dr. Shouldice. I fail to see how such reports would have assisted the mother since Dr. Ramsay is supportive and not critical of Dr. Shouldice’s diagnosis and opinion.

[121] In conclusion, the ineffective counsel ground of appeal fails.

Ground # 2 - Reversal of Onus of Proof

[122] The mother argues that the trial judge erred in adopting the "unexplained injury principle" contrary to s. 74(2) of the CYFSA.

[123] In the mother’s factum she states that the unexplained injury principle is “bad law” and has no basis in the CYFSA. This argument was abandoned during the hearing of this appeal. The mother accepts that the unexplained injury principle is recognized in law. Her revised position is that the trial judge applied the principle incorrectly, and as a result the onus of proof was shifted to the mother.

[124] The unexplained injury principle is a recognized principle in child protection matters. In British Columbia (Superintendent of Family and Child Service) v. G. (C.), [1989] B.C.J. No. 1577 (C.A.) at para. 31, the court set out the principle as follows:

When the facts disclosed by the evidence are considered, namely that each of the children suffered extensive rib fractures, that in the opinion of Dr. Hlady those injuries were not accidental and that the parents who had custody and care of these children gave no satisfactory explanation as to how those injuries had been sustained, the only conclusion open to the hearing judge on that evidence was that the safety and well being of the children required that they be placed in the custody temporarily of the Superintendent.

[125] In Prince Edward Island (Director of Child Welfare) v. A.H., 2009 PECA 19 at para 26, the court adopted the unexplained injury principle as explained in In re B (Children) (FC), [2008] UKHL 35 as follows:

Quite simply, it would be grotesque if such a case had to proceed at the welfare stage on the footing that, because neither parent, considered individually, has been proved to be the perpetrator, therefore the child is not at risk from either of them. This would be grotesque because it would mean the court would proceed on the footing that neither parent presents a risk even though one or other of them was the perpetrator of the harm in question. …

[126] In this case, the trial judge referred to the unexplained injury principle at para. 46 of her reasons as follows:

In child protection case law there is something called “the unexplained injury principle” and that is injuries suffered by an infant which are of a serious nature and which remain unexplained are in and of themselves grounds for removal of the child and for the continuation of that removal. Where there is no evidence of intervention by a third party, a failure to explain the cause of the child’s serious injury has been held to constitute grounds for finding a child in need of protection and for a refusal to return the child to previous caregivers.

[127] The mother argues that the trial judge erred in law because she started with the unexplained injury principle and then shifted the onus to the mother to prove why it should not be applied. I disagree.

[128] It is correct to say that the burden of proof in a child protection proceeding rests on the Society. When the trial judge’s reasons are considered in their entirety, it is obvious that the burden was not placed on the mother. The Society satisficed its burden of proof. The Society proved that the child was injured while in the care of her parents and the injuries were not accidental. The trial judge rejected the mother’s explanations. The Society’s evidence and, the evidence of Dr. Shouldice, provided the factual foundation for the trial judge’s finding at para 73:

I find on a balance of probabilities that the child was injured in the care of you and the father. There is no other reasonable explanation for the injuries other than that they were intentionally inflicted and that the only people who had a reasonable opportunity to inflict those injuries were you and /or the father.

[129] The fact that the trial judge reviewed and considered the explanations of the parents does not mean that the trial judge placed the burden on the mother. The Society presented their evidence and so did the mother. It was incumbent on the trial judge to consider all the evidence, as she did. The trial judge made findings of fact as noted above. The unexplained injury principle was relevant because the Society could only prove that the mother and/or the father were responsible.

[130] In conclusion, this ground of appeal fails.

Ground # 3 - Wrong Test Used to Decide Access

Trial Judge Applied the Wrong Test

[131] The trial judge found that the child is in need of protection and placed the child in the Society’s extended care with no order as to access.

[132] While the mother argues that the trial judge was silent on access, this is not correct. The trial judge ordered no access. At para 99, the trial judge stated:

However, given that your child suffered serious unexplained injuries in the care of you and the father and given that your mother has not been straight forward in her dealings with the society, I find that a supervision order with either of you would not be adequate to protect her from risk of future harm. Consequently, it would be in her best interest to be placed in the extended care of the society with no order as to access, so as to free her for adoption by her current foster parents.

[Emphasis added]

[133] In reaching this decision, the trial judge shifted the onus to the mother to show that she should be granted access. This was the approach taken under the Child and Family Services Act, the predecessor to the CYFSA. In fairness to the trial judge, some courts continued to shift the onus onto the parent, after the CYFSA came into force.

[134] The trial judge released her decision 13 days before the release of Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316. Kawartha-Haliburton makes it clear that the burden no longer rests on the person requesting access to demonstrate that the “relationship is beneficial and meaningful to the child and will in no way impair the child's future adoption opportunities”. The Court in Kawartha-Haliburton stated at para 49:

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child's future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests.

[135] The parties agree that based on Kawartha-Haliburton, the trial judge erred in law when she decided access. I agree.

[136] The Society argues that the mother ought to have returned the matter to the trial judge immediately after Kawartha-Haliburton was released. The trial judge’s final order was not issued until July 4, 2019. Therefore, the trial judge was not functus and could have revisited the issue of access given Kawartha-Haliburton. The Society says that at this late date it would be unfair to send the access issue back to the trial judge, when the mother could have done so after Kawartha-Haliburton. In my view, either party could have returned the access issue to the trial judge. Neither did and it is unfair to rest the responsibility on the mother and suggest that any particular result should follow because the mother did not seek to reopen the access issue.

Should This Court Decide the Issue of Access?

[137] The Society asks this court to decide the access issue rather than sending the issue back to the trial judge. The mother wants the entire matter sent back for a new trial. Having failed on all other grounds of appeal, this is not an option. The sole question is whether this court should decide access or should the access issue be sent back to the trial court for a decision.

[138] This court has jurisdiction to apply the correct legal framework to the evidence. Section 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, authorizes an appeal court "to make any order or decision that ought to or could have been made by the court or tribunal appealed from".

[139] In my view, this court should exercise this jurisdiction. On the record, the court can reach a fair and just determination consistent with the purposes of the CYFSA, and consistent with the best interest, protection and well-being of the child. The transcripts from the four-day trial are available and as the trial judge noted, the “facts were not disputed”. As well, the child has been in the Society’s care since February 2017, well beyond the statutory time limits under s. 122 of the CYFSA. Given this delay, it especially important to give the child certainty as to her status as soon as reasonably possible: see Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 at p. 206.

Applying the Correct Legal Framework, Should the Mother Have Access?

[140] Following Kawartha-Haliburton, the court must undertake “a best interests analysis, assess whether the relationship [with the mother] is beneficial and meaningful to the child”. The failure of a parent to provide evidence does not mean that access is to be denied. Finally, adoption opportunities cannot be used to thwart a parent’s request for access. Under the CYFSA, access is to be ordered for a child with otherwise excellent adoptive prospects, if it is in her overall best interests.

[141] The statutory framework is set out in s. 105(5) and (6) of the CYFSA:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and (b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

[142] Section 74(3) of the CYFSA sets out the factors that the court shall consider when directed to make an order in the best interests of the child:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; (b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[143] The child is 2 years old and will be three in the fall. Her views and wishes cannot be ascertained. The child is not First Nations, Inuk or Métis.

[144] Under s.74(3)(c), the court must consider the relevant circumstances. In this case, the most significant circumstance is the degree of risk that led to the protection finding. There is no question that this child suffered serious injuries while in the care of her parents. These injuries are reviewed in detail above. The trial judge found that the parents “intentionally inflicted” the injuries on the child. There was ample evidence to support this finding.

[145] The trial judge rejected the evidence of Dr. Khan, the mother’s treating psychiatrist who testified that the mother had depression but was capable of parenting the child. She found that Dr. Khan was not qualified as an expert to give this opinion. Further, the evidence conflicted with Dr. Shouldice’s evidence that the injuries preceded the seizures by minutes or up to a few hours. Dr Khan’s evidence that the trial judge did accept was found to be “concerning”. Dr Khan testified that the mother does not remember if she may have harmed the child.

[146] The mother told the Society care worker that she felt uncomfortable being left alone with the child during access visits because she was “scared” that she might “shake the baby”.

[147] The trial judge found that the maternal grandmother did not appear to understand the injuries that the child suffered and was dismissive of the idea that she should be concerned about the mother caring for the child. As a result, the grandmother cannot be relied upon to manage the risk that the mother presents.

[148] Based on the facts, the trial judge found that there was no supervision order she could craft that would protect the child from the risk of future harm.

[149] While the child has made excellent progress in her recovery, she continues to be followed by the doctors at the Sick Children’s Hospital for problems associated with sensitivity to light. The child has benefited from the continuity of the care she has received. Her foster parents have fully supported this need for ongoing care. Such support and care must continue. In contrast, the trial judge was not satisfied that the mother and grandmother appreciated the child’s medical needs.

[150] The child has developed “extremely well” in the care of her foster parents. The trial judge found that they offer the child “permanence and stability as part of a loving family”. The evidence is that the foster parents are happy to adopt the child if this opportunity is available. There is no evidence that an order giving mother access would impede the adoption.

[151] The child has not been in her mother’s care since she was four months old. While the mother’s access visits with the child have gone well, there is no factual foundation to find that their relationship is beneficial and meaningful to the child. There is no evidence as to how the mother might provide for the child’s needs. The mother is currently the subject of a deportation order and, if implemented, she will be returned to Portugal.

[152] In summary, I find that it is not in the child’s best interests to order that the mother have access. I make no order as to access.

Conclusion

[153] I make the following orders:

(1) The appeal is dismissed on grounds #1 and # 2. (2) The appeal is allowed on ground #3. (3) There shall be no order as to access in favour of the appellant mother. (4) If costs are requested and cannot be agreed upon, the parties will serve and file brief cost submission by June 26, 2020. If no one is seeking costs or if an agreement is reached, the parties shall advise the court.

C. Horkins J.

Released: June 9, 2020

Court File No.: FS-19-9694 Date: 2020-06-09 Ontario Superior Court of Justice

Between: V.R. Appellant – and – Catholic Children’s Aid Society of Toronto Respondent Mario Paiva Intervenor

Reasons for Judgment C. Horkins J. Released: June 9, 2020