DATE: 20061004
DOCKET: C44477
COURT OF APPEAL FOR ONTARIO
WEILER, ROSENBERG and FELDMAN JJ.A.
B E T W E E N :
CHILDREN’S AID SOCIETY REGION OF HALTON Applicant (Respondent)
- and -
K.L.A. and J.J.M. Respondents (Appellants)
Counsel:
Gene Colman and Ian R. Mang for the appellants
Charlotte Murray for the respondent
Heard: September 7, 2006
On appeal from the judgment of Justice Michael Quigley of the Superior Court of Justice dated October 19, 2005.
ROSENBERG J.A.:
[1] In this appeal, the parents of two young children seek to set aside an order that the children be made permanent wards of the Crown without access so that they may be placed for adoption. Wolder J. (the trial judge) made this order on July 14, 2005 and Quigley J. (the appeal judge) dismissed the parents’ appeal on October 19, 2005. The parents appeal from the order on the basis of procedural errors by the trial judge that they say deprived them, especially the mother, of the ability to present their case that it was in the children’s best interests that they remain with the parents. The parents also argue that their trial counsel, who also represented them before the appeal judge, did not provide effective assistance. The parents have filed fresh evidence to demonstrate the kind of evidence that could have been presented to the trial judge.
[2] I would admit the fresh evidence, allow the appeal, and order a new hearing. I reach this conclusion on the basis of the procedural errors and the fresh evidence. In view of that decision, I need not deal with the issue of alleged ineffectiveness of counsel. However, at the conclusion of these reasons I offer some suggestions for how such an issue should be addressed in future cases before this court.
THE FACTS
[3] Since I have concluded that there must be a new trial, I intend to only briefly summarize the facts. The two children were born in August 1999 and December 2000 and are therefore seven and five years of age. The mother has had difficult mental health issues and has been hospitalized for depression on several occasions. The father, who also has some psychological issues, has had difficulty stepping into the principal parental role. Thus, on two occasions[^1] the parents asked that the Children’s Aid Society take the children into care. Family Service Workers with the CAS have had frequent contact with the family since 2001. The material filed by the CAS before the trial judge indicates that the mother has had difficulty coping with the children and, for example, has responded inappropriately to their behaviour by yelling. It is also alleged that the mother left the youngest child crying for hours and inappropriately disciplined the older child.
[4] On October 22, 2003, the CAS apprehended the children. The apprehension was triggered by a call from a therapist with Halton Child & Youth Services who had been working with the mother. She was concerned about the impact on the children of the mother’s failure to attend therapy sessions. The mother would only contact the therapist when she was in crisis. Although the CAS and Child & Youth Services had been involved with the family for almost two years, there had been little if any progress. The mother’s mental health problems were not being dealt with and the children’s behaviour was deteriorating. The therapist’s central concern is captured in a letter she sent to the CAS:
The most concerning aspect of [the mother’s] inability to sustain therapy and the chaotic environment they reside in is the effect that has had on both [children]. Both daughters’ behaviour is problematic for [the parents]. In addition, each girl presents with apparent lags socially, emotionally, cognitively and in expressive language. Although [the parents] state they love their daughters, the current situation places both [children] at risk of significant developmental concerns.
[5] The event that seems to have led the therapist to contact the CAS was a visit to the children’s home on October 21, 2003. On that day, the therapist saw the mother yell at and spank the older child on two occasions in an attempt to stop her temper tantrums. She also had concerns about the children’s physical environment. She believed (mistakenly as it turned out) that a hole in a pipe associated with the heating system represented a health hazard.[^2]
[6] On November 25, 2003, a temporary care and custody order was made in favour of the CAS. The procedural concerns in this case began in February 2004. On February 17, 2004, then counsel for the parents applied for an adjournment of the child protection hearing because the mother had just been admitted to hospital and was due to start electro-convulsive therapy for treatment of depression the following day. The trial judge refused the adjournment and ordered that the trial proceed the following week on the issue of whether the children were in need of protection. If the children were found to be in need of protection, the trial judge would adjourn the disposition stage of the hearing until the mother was released from hospital.
[7] On February 20, 2004, the parents signed an agreement that the children were in need of protection. The basis of the agreement differed as between the two parents. With respect to the mother, she admitted that she was unavailable to exercise her custodial rights due to her mental illness and had not made adequate provision for the children’s care and custody (Child and Family Services Act, R.S.O. 1990, c. C. 11, s. 37(2)(i)). With respect to the father, he agreed that he was unable to care for the children and that the children were brought before the court with his consent (s. 37(2)(l)). On February 23, the trial judge made a finding that the children were in need of protection and adjourned the disposition hearing to March 23, 2004.
[8] On March 23, the parents signed a consent agreeing that Dr. Barry Cook would conduct a parental assessment. Dr. Cook had previously dealt with the family and two years earlier had recommended that the children remain with the parents. In the March 23 consent the parents agreed to be bound by Dr. Cook’s recommendations. The CAS did not give a similar undertaking.
[9] Thereafter, the disposition hearing was adjourned from time to time awaiting completion of Dr. Cook’s report. One of the endorsements made by the trial judge for one of the adjournments is instructive since it foreshadows future events. The trial judge wrote: “Trial not required because parties have agreed to accept Dr. Cook’s recommendations in his report to be released.”
[10] Dr. Cook’s final report was not completed until November 28, 2004. He recommended that the children be placed for adoption in different families. On December 16, 2004, the CAS, relying upon the March agreement and Dr. Cook’s report, brought a motion for summary judgment seeking an order that the children be made Crown wards without access. The mother filed an affidavit opposing the motion in which she challenged several of the facts upon which Dr. Cook based his conclusions.
The Summary Judgment Ruling
[11] The trial judge defined the issue on the summary judgment motion as follows:
Since the material in support of the motion is limited to the agreement of March 23, 2004 and to Dr. Cook’s report dated November 28, 2004, this motion for summary judgment is based strictly upon the enforcement of the written agreement of the parties. Therefore, the only evidence through which the respondents could raise a triable issue is that the agreement of March 23, 2004, upon which the applicant relies, either does not exist, or is no longer in force or effect or has been withdrawn or in some other way, either in fact or in law, is no longer binding upon the respondents, thereby requiring this court to deal with the issues on disposition on the merits by way of a formal disposition hearing. [Emphasis added.]
[12] The trial judge reviewed the mother’s affidavit and concluded that it did not “raise any triable issue on the questions of whether this court should enforce that agreement by making an order of Crown wardship as requested by the applicant”. Significantly, however, the trial judge held that “if the motion for summary judgment had been based on whether the evidence, as a whole, including the report of Dr. Cook of December 9, 2004, [sic] supports an order for summary judgment for Crown wardship without access, then the issues raised by [the mother] in her affidavit challenging the factual underpinning of Dr. Cook’s report and hence his conclusions, would raise a triable issue”.
[13] The trial judge went on to hold that he must consider whether there had been compliance with the Act. He found that since the father had obviously withdrawn his consent to the finding that the children were in need of protection he was prevented from making an order for Crown wardship without access against the father. However, the finding that the children were in need of protection with respect to the mother did not depend on her continuing consent. In view of her agreement to be bound by Dr. Cook’s recommendations, the summary judgment motion succeeded against the mother. The trial judge directed a trial to give the father the opportunity to persuade the court that the best interests of the children required them to remain in his care and custody, pursuant to his plan of care, which might or might not define a role for the mother.
The Trial
[14] At trial, Dr. Cook testified on behalf of the CAS. The father was the only witness to testify on his behalf. His plan of care depended on the mother, but the trial judge had already made a finding that the mother was unable to parent the children for the reasons set out in his ruling on the summary judgment motion. The trial judge found that the children were still in need of protection and that the father had been unable to present a viable plan that would allow him, in the absence of the mother, to parent the children effectively and to meet their challenging needs. The father could not parent the children effectively since his work schedule did not allow him to be available for the children at all times. The trial judge also found that the children were still in need of protection as against the mother. Accordingly, he made an order for Crown wardship without access to permit adoption of the children.
The Appeal to the Superior Court of Justice
[15] On the appeal to the Superior Court of Justice, counsel for the appellants (the same counsel as at trial) alleged that the trial judge had failed to apply the best interests test, to properly consider the father’s proposed plan of care, and to take into account the mother’s progress with respect to her mental health. The appeal judge carefully considered the issues that were raised before him. On the record before him, he properly disposed of the grounds of appeal that were raised by the appellants. Counsel did not attempt to introduce any fresh evidence and the grounds of appeal that were argued in this court concerning the summary judgment motion and related procedural issues were not raised.
[16] Counsel for the CAS, quite fairly, did not suggest that the failure to raise the summary judgment and related issues in the Superior Court of Justice precluded counsel from relying on those points before this court.
ANALYSIS
The Agreement and the Summary Judgment Motion
[17] The appellants challenge the trial judge’s jurisdiction to entertain a summary judgment motion once the trial had commenced. They submit that the trial commenced on February 23. I need not decide that issue since I am of the view that, even if there was jurisdiction to grant summary judgment, the process followed was fundamentally flawed.
[18] In my view, the trial judge misconceived the issue at the summary judgment motion and this led him to delegate the disposition decision, as it related to the mother, to Dr. Cook. I have set out the manner in which the trial judge framed the issue. In effect, he held that, in order to raise a triable issue, the parents had to show that they were no longer bound by the agreement of March 23. If they could not do so, there was no need for the “court to deal with the issues on disposition on the merits by way of a formal disposition hearing”.
[19] There are several problems with this approach. First, the burden was not on the parents to show that there was a triable issue. The burden was on the CAS, the moving party, to show that there was no triable issue. See F.B. v. S.G. (2001), 199 D.L.R. (4th) 554 (Ont. S.C.J.) at paras. 24 - 28; Children’s Aid Society of Toronto v. K.T., [2000] O.J. No. 4736 (Ct. J.) at para. 10; Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423 at para. 27.
[20] Second, the trial judge allowed the material filed by the CAS to determine the issue at the summary judgment motion. For convenience, I repeat the opening sentence of the paragraph where the trial judge defined the issue:
Since the material in support of the motion is limited to the agreement of March 23, 2004 and to Dr. Cook’s report dated November 28, 2004, this motion for summary judgment is based strictly upon the enforcement of the written agreement of the parties.
[21] The moving party cannot define the issues on a motion for summary judgment simply by the material it files in support of the motion. The written agreement may have been a piece of evidence upon which the CAS could rely, but that was not the issue on the summary judgment motion. In its notice of motion, the CAS sought: “An Order that the children … shall be made Wards of the Crown, without access, and shall be placed in the care and custody of the Children’s Aid Society, Region of Halton.”[^3]
[22] Thus, the issue was not simply whether the parents were bound by the March 23 agreement, but whether there were triable issues respecting the application for an order of Crown wardship with no access. That was the order the CAS sought in its motion, and the trial judge recognized that there were triable issues on that question:
On the other hand, if the motion for summary judgment had been based on whether the evidence, as a whole, including the report of Dr. Cook of December 9, 2004 [sic] supports an order for summary judgment for Crown wardship without access, then the issues raised by [the mother] in her affidavit challenging the factual underpinning of Dr. Cook’s report and hence his conclusions, would raise a triable issue.
[23] By limiting the issue, at least as it applied to the mother, to the agreement of March 23, the trial judge improperly delegated his jurisdiction to determine the disposition to the parties and Dr. Cook. He did not apply the criteria he was mandated to apply under the Act. As the above excerpt shows, the trial judge did not even examine the substance of Dr. Cook’s report, but simply accepted his conclusions regarding the mother because of the agreement. As the CAS concedes, irrespective of the position taken by the parents, the trial judge was obligated to satisfy himself on the evidence that Crown wardship was in the best interests of the children. See Children’s Aid Society of Hamilton-Wentworth v. B. (K.) (2002), 16 O.F.L.R. 113 (S.C.J.); M. (A.C.) v. M. (D.) (2003), 67 O.R. (3d) 181 (C.A.); Strobridge v. Strobridge (1994), 18 O.R. (3d) 753 (C.A.); Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 930 (S.C.J.) rev’d on other grounds (2005), 19 R.F.L. (6th) 267 (C.A.).
[24] Even though the trial judge went on to hold a disposition hearing as it applied to the father, the procedural error continued to affect the proceedings. The trial judge found that the father’s parenting plan was not viable because it involved the mother and he had already determined the disposition issue against the mother on the summary judgment motion. However, as noted above, he did not make this determination on the merits. Rather, the trial judge delegated that decision to Dr. Cook, even though he recognized that in her affidavit the mother had raised a triable issue on that issue.
[25] I would make one last comment on this aspect of the appeal. I am mindful of the huge caseload facing the trial courts of this province in respect of child protection matters. Thus, nothing said here should be taken as an attempt to limit the courts’ attempts to expedite these difficult cases in appropriate circumstances. However, I adopt the comments of Himel J. in F.B. v. S.G., supra. In that case, Justice Himel outlined the history of the use of summary judgment in child protection motions culminating in the enactment of Rule 16 of the Family Court Rules. I agree with her that this jurisdiction must be exercised with caution. As Himel J. wrote at para. 23, “Considering the jurisprudence both before and since the enactment of Rule 16, it is clear that it remains appropriate that summary judgment jurisdiction be exercised cautiously since that is consistent with the principles of justice and the best interests of children.” Further, Himel J. wrote at para. 40: “Effective parental participation at the child protection hearing is essential to determine the best interests of the child in circumstances where the parent seeks to maintain custody of the child.”
[26] Unfortunately, the manner in which the trial judge in this case exercised the summary judgment jurisdiction deprived the parents, especially the mother, of their right to effective participation in circumstances where there were triable issues as to whether Crown wardship was in the best interests of the children.
The Fresh Evidence
[27] In light of the error respecting summary judgment, it becomes necessary to consider the appropriate disposition of this appeal. Because the mother was eliminated from the trial on the merits, the trial record is incomplete. It is therefore appropriate to consider the fresh evidence proffered by counsel for the appellants in this appeal. As the Supreme Court of Canada held in Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 at 166 - 167: “Although it might be more in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance.”
[28] Accordingly, I will briefly summarize what I consider to be the most important parts of the fresh evidence.
Elayne M. Tanner
[29] Ms. Tanner has a Master of Social Work and is a former employee of the Halton CAS, where she worked as an abuse investigator. For the past 15 years she has been a private practitioner providing counselling and psychotherapy to individuals, couples, families and children. She first met the appellants on April 18, 2005. This was their only meeting prior to the disposition hearing later that month. Ms. Tanner is mentioned in the father’s plan of care. The plan indicates that the parents would retain her services to work with the parents and children “in an immediate and/or transitory role”. The appellants’ trial counsel did not contact Ms. Tanner and did not call her as a witness.
[30] The material filed on the fresh evidence application indicates that Ms. Tanner is prepared to work with the family on a long-term basis to support the children’s reintegration into the family and to provide ongoing parenting guidance. She has continued contact with the parents and has provided parenting counselling to them. While Ms. Tanner concedes that she has never met the children, she did watch many hours of videotapes that the parents made of their supervised visits with the children prior to the order for Crown wardship. She states that, in her opinion, the parents can provide a “good, supportive, loving home for these girls where they will be properly cared for and raised” and that it is in the children’s best interests that they be returned to their parents.
[31] During the trial, the trial judge queried counsel as to whether Ms. Tanner was going to be called as a witness because, “you appear to be relying a lot on this counselling”. In his reasons for judgment the trial judge totally discounted the aspect of the plan relating to Ms. Tanner because she did not testify. He stated:
This court did not hear evidence from Ms. [Elayne] Tanner and that part of [the father’s] plan was not proven. His own evidence of his statement of intent can be given no weight without hearing from Ms. Tanner. It is clear, after hearing all the evidence, that, notwithstanding the suggestion in his plan of care that [the father] would become the primary caretaker of the children, in fact, [the mother] would be relied upon by him to assume the bulk of the child-care burden for these children. His plan is therefore unrealistic and unworkable. [Emphasis added.]
Gerry Kennedy
[32] Gerry Kennedy is employed as a social worker at the North Halton Mental Health Clinic. In 2004, he had provided a letter to the CAS that Dr. Cook referred to in his report. Mr. Kennedy was examined under oath for the purposes of this appeal.
[33] Mr. Kennedy first became involved with the mother at the request of the CAS in April of 2002. He attached to his 2004 letter a list of appointments that the mother missed and kept. That list shows that the mother missed many appointments. Mr. Kennedy explained that when the mother missed appointments she would sometimes call and reschedule. On some occasions she was hospitalized and missed appointments for that reason. Sometimes she came in on the wrong day. And, sometimes, she was in a great deal of distress and simply forgot. Mr. Kennedy would then call and follow up with her. On some occasions, the mother would walk from her home (an hour’s walk) when the buses were not running. In his view, it was apparent that the mother did want to come for the appointments and was committed to the counselling.
[34] In his report, Dr. Cook summarized the letter from Mr. Kennedy, in part, as follows:
He [Kennedy] hoped [the mother] could eventually overcome deficits in her parenting and emphasized that she did not want to repeat her own history with her children. However, the outline of scheduled appointments he provided to the Agency showed 28 attended, 19 missed, and 2 cancelled between June 11, 2002 and January 8, 2004, i.e., about 48% of her appointments were missed or cancelled prior to re-apprehension of the children. The most consistent period during the process has been since the children were re-apprehended—between October 30, 2003 and January 8, 2004. [Emphasis added. Footnote omitted.]
[35] Neither Dr. Cook nor the appellants’ former counsel contacted Mr. Kennedy and he did not testify at the trial. When examined in preparation for this appeal, Mr. Kennedy testified that simply looking at the list of missed appointments would not provide a proper understanding of the mother’s commitment to counselling.
Dr. John Esmond
[36] Dr. Esmond is the parents’ family physician. Neither Dr. Cook nor the appellant’s trial counsel contacted him. His only input at the hearing came through a letter to which I will refer later. Although a general practitioner, Dr. Esmond has had extensive training and experience in managing mental illness. He does both supportive therapy and cognitive behavioural therapy and he has counselled the mother for many years. Dr. Esmond was also the father’s physician and the physician for the children. He thus had an opportunity to observe them as well.
[37] Dr. Esmond prepared a brief report in support of the mother, which was relied on during the trial. However, ultimately the trial judge found that Dr. Esmond’s report was rebutted by Dr. Cook’s evidence and held that he could “give no weight to Dr. Esmond’s report”, in part, because it contained a serious error. Namely, the report stated that the mother’s depression had been under control since November 2003 and made no mention of her hospitalization in 2004. These statements were contradicted by the father’s own evidence.
[38] In the fresh evidence, Dr. Esmond explains how this error was made. The mother had come to his office on the eve of the hearing with “a frantic request” that he prepare a letter of support. He did not have a chance to consult his chart before doing so.
[39] The trial judge also held that he could give no weight to Dr. Esmond’s opinion because he is not a psychiatrist “and therefore his psychiatric evaluation should be given little weight”. The father had also “failed to demonstrate that Dr. John Esmond has the expertise to allow him to opine that he sees no medical reason why [the mother] cannot take care of the children on her own on account of her posing no danger to herself or anybody else at this point in time”. As I have indicated, it appears that in fact Dr. Esmond has considerable expertise in dealing with mental illness.
[40] Dr. Esmond prepared an extensive report in this appeal, which concludes that “he can see no reason that would prevent either parent from continuing in their parental role for these children”. With respect to the mother, Dr. Esmond explains how a change in medication for her in early 2004 was “in hindsight”, a tragically mistaken step”. This change, together with some external issues, led to a flare-up of her depression. Once the medication was corrected, the mother’s condition stabilized. Dr. Esmond also explains the reasons for the mother’s hospitalization in 2004. With respect to the father, Dr. Esmond has no concerns about his mental health. He disagrees with Dr. Cook’s suggestion that the father was a suicide risk. Further, he has no concern that the children were being abused and, in the past, he found the parents to be attentive to the health care needs of the children.
Dr. Sean McHugh
[41] Dr. McHugh is a psychiatrist and began treating the mother in October 2005 after a referral from Dr. Esmond. He has provided an extensive report concerning the nature and status of the mother’s mental illness. He concludes as follows:
What may have not been appreciated previously was that while [the mother] has a mental illness, this illness has responded to treatment. As her illness has been controlled for the past two years, there is every reason to believe that her continued well-being can be maintained.
I believe that further relapse prevention can be implemented to satisfy the courts and CAS that the children can be returned to her care without significant future risk for their safety.
[42] The appellants’ trial counsel did not call any expert psychiatric evidence. Dr. McHugh’s evidence was, of course, not available for the April 2005 trial.
The Grandmother’s evidence
[43] The father’s mother has provided an affidavit as part of the fresh evidence application. She was not contacted by the trial counsel or Dr. Cook. This is perhaps understandable since the father was previously estranged from his mother. At the time of the trial, the grandmother lived a considerable distance from the parents. In August 2005, she moved closer to the parents and she now has frequent contact with them.
[44] The father is one of six children. One of the grandmother’s sons, Robert, continues to reside with her. Contrary to a suggestion in Dr. Cook’s report, the grandmother’s health is generally good and she operates a business with Robert. The grandmother states that she and Robert have flexible schedules and are available to assist with the care of the children whenever called upon. She notes that in the past the parents placed the children in foster care. She states that there was no need for that, that she and Robert would have been able to take the children. She believes that the parents were too proud to ask for help. She believes that the parents have now learned that they can rely upon the father’s family to assist when help is needed. Finally, the grandmother points out that she and her late husband were previously approved foster parents for the Toronto CAS and fostered four children.
[45] As I have said, the grandmother was not called to testify at trial and the only information about her at the trial was a concession from the father that he was estranged from her. In his reasons, the trial judge stated as follows:
I find that the children need a knowledgeable, stable, adult person in the home almost 24-hours per day in order to attempt to meet their needs when the respondent [father] is not physically available and when the respondent [sic] [mother] is not emotionally or psychologically available for her children.
[46] The fresh evidence shows that in fact there are other competent people available to the parents to assist with caring for the children. In addition, of course, the children are now of school age and would not be in the home 24 hours a day.
Other members of the father’s family
[47] The balance of the fresh evidence adduced by the appellants consists of affidavits from other members of the father’s extended family, including his brother Robert and the father’s own adult children from a prior relationship. None of these people were contacted by Dr. Cook or the appellants’ trial counsel. They provide some support for the father’s parenting ability.
The CAS fresh evidence
[48] The CAS relies upon an affidavit from Nancy Godwin. She has been the Residential Service Worker with the CAS for the children since October 2003. She states that both children lived with the same foster parents from the date of apprehension until February 2006. At this time the CAS placed the older child with a family that is prepared to adopt her, should she become available for adoption. This family is also prepared to adopt the younger child. The younger child remains in the same foster home she has lived in since October 22, 2003. The older child is receiving ongoing speech therapy and may need physiotherapy for a gross motor delay. The younger child does not have any unusual medical problems.
[49] The older child is doing well in school and is actively participating in several extracurricular activities. The younger child attends junior kindergarten at the same school as her sister and they attended the same summer camp.
[50] The parents have had no contact with the children since the decision of the trial judge in July 2005.
[51] Attached to Ms. Godwin’s affidavit is a report from Dr. Robert Seim, a clinical psychologist. Dr. Seim disagrees with Dr. Cook’s recommendation that the children be placed in separate homes. In his view, there was nothing in Dr. Cook’s report to support this recommendation. However, he does agree with Dr. Cook that the children had developed a very dysfunctional attachment relationship with their mother. In his view, given the age of the children, it is imperative that they be placed in a permanent setting immediately if they are to have any opportunity to develop “the critically needed attachment relationship with the new parenting figures”.
Analysis of the fresh evidence
[52] The fresh evidence from the parties suffers from certain inherent defects. The appellants’ expert witnesses have had little, if any, opportunity to observe the parents with the children[^4] and, of course, the parents have had no contact with the children for over a year. These experts have similarly not had recent access to the children. The CAS experts have not taken the opportunity to meet with the parents and are largely unfamiliar with their current circumstances. None of the evidence has been tested by cross-examination before a trier of fact.
[53] Counsel for the CAS submits that this court should have serious reservations about the weight to attach to the fresh evidence. For example, the father’s mother and brother were presumably always available, but were never called in to help the parents. Further, the kind of support Ms. Tanner is prepared to offer the family, especially the mother, is not unlike the extensive support that the CAS and other agencies offered to her before the apprehension, but with no beneficial effect.
[54] While there is much to these submissions by counsel for the CAS, I am satisfied that the fresh evidence should be admitted. The evidence bears directly on the question of the best interests of the children, is reasonably capable of belief and could be expected to have affected the result. I have already referred to the reasons of the trial judge where he rejected the father’s plan of care, in part, because of the failure of the father to lead evidence from Ms. Tanner. Her evidence, when taken with other fresh evidence about the parents’ support network, could have led the trial judge to come to a different result.
[55] The trial judge also rejected the plan of care because it was so dependent on the mother. However, because of the error respecting the summary judgment motion, the mother’s personal circumstances were not properly developed. She was denied the opportunity to effectively participate in the process that led to the order. The evidence from Dr. Esmond, Mr. Kennedy and Dr. McHugh suggests that the mother’s mental illness is not nearly as debilitating as was portrayed at the trial and that with proper support she may be able to adequately parent these children.
[56] Admittedly, some of the “fresh” evidence was available at the trial. For reasons that are not fully explained in the record before me the father did not call this evidence. The parents allege that they did not receive effective assistance from their trial counsel and that explains the failure to call some of the evidence. I deal briefly with that allegation below. Suffice to say that the due diligence criterion for admissibility of fresh evidence will yield where its rigid application might lead to a miscarriage of justice. It is my view that to exclude this evidence, given the distorting effect on the proceedings of the summary judgment motion, might well lead to a miscarriage of justice. Accordingly, I would admit the evidence. I will discuss the appropriate disposition in light of that conclusion at the end of these reasons.
Ineffective Assistance of Counsel
[57] The appellants allege that they did not receive effective assistance from their trial counsel, who also acted on the appeal to the Superior Court. In view of my conclusion concerning the summary judgment motion and the fresh evidence I need not decide this issue. In any event, I would be reluctant to deal with this issue in the absence of evidence from trial counsel. While counsel before us acted with great diligence to bring the fresh and missing evidence before us, and are to be commended for that work, trial counsel does not appear to have been formally apprised that this appeal involved a challenge to his competence.[^5]
[58] In the future, where such an allegation is made, appellate counsel should have regard to the Procedural Protocol Re Allegations of Incompetence of Trial Counsel in Criminal Cases and follow so much of that Protocol as may be applicable to a child welfare appeal. In particular, counsel should have regard to the provisions respecting notice, assertions of solicitor-client privilege, and access by respondent’s counsel to the trial counsel’s file.[^6] For convenience I have attached the Protocol as an appendix to these reasons.
DISPOSITION
[59] In view of the errors respecting the summary judgment motion, the appeal must be allowed. Counsel for the appellants submits that in view of the fresh evidence this court is in a position to set aside the order for Crown wardship without access and return the children to the parents, perhaps with a supervision order under s. 57(1) of the Act. In my view, that would not be an appropriate disposition. The fresh evidence has not been tested by cross-examination and, while compelling, in my view, is not decisive on the question of what disposition would be in the best interests of the children. Accordingly, I would allow the appeal and order a new hearing. I would ask that the Ontario Court of Justice take steps to expedite this hearing before another judge.
[60] At the hearing of this appeal, counsel for the parents asked that, if the appeal were allowed, this court make an order that they be given access to the children pending the new hearing. Any application for interim access should be made to the Ontario Court of Justice.
[61] I would order no costs of the appeal.
Signed: “M. Rosenberg J.A.”
“I agree Karen M. Weiler J.A.”
“I agree K. Feldman J.A.”
RELEASED: “MR” October 4, 2006
[^1]: The children were taken into care on one occasion for eight months and on a second occasion for one month. The parents also placed the children in “relief” foster care with the CAS for several days on four occasions. [^2]: The evidence establishes that this was not a safety issue and that the minor repair required would have been performed the very day the children were taken into care. [^3]: The CAS also sought an order giving it the right to consent to and authorize medical treatment for the children. [^4]: Although Ms. Tanner did have the opportunity to view the videotapes of the supervised access visits. [^5]: Appellate counsel wrote to the trial counsel and asked him to provide information concerning decisions made at the trial. Regrettably trial counsel did not respond and counsel for the CAS did not approach him out of concerns respecting solicitor-client privilege. [^6]: Several of the parts of the Protocol, such as involvement of Crown counsel and compliance with the Criminal Appeal Rules, can have no application to child protection cases and counsel should proceed by analogy.