WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
45(7) The court may make an order,
(a) excluding a particular media representative from all or part of a hearing;
(b) excluding all media representatives from all or a part of a hearing; or
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
45(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
COURT OF APPEAL FOR ONTARIO
CITATION: Windsor-Essex Children's Aid Society v. R.H.C., 2016 ONCA 595
DATE: 20160729
DOCKET: C61792
Hoy A.C.J.O., Brown and Huscroft JJ.A.
BETWEEN
Windsor-Essex Children’s Aid Society
Applicant (Respondent)
and
R.H.C.
Respondent (Appellant)
Counsel
R.H.C., acting in person
Michelle Meighoo, duty counsel on behalf of the appellant
Frank Philcox, for the Windsor-Essex Children’s Aid Society
Annemarie Carere, for the Office of the Children’s Lawyer
David B. Williams, for the intervener Christina Sweet
Heard: July 20, 2016
On appeal from the judgment of Justice J. Paul R. Howard of the Superior Court of Justice dated January 6, 2016.
ENDORSEMENT
OVERVIEW
[1] The appellant is the mother of two young girls who are nine and twelve years old. Both girls were apprehended by the Windsor-Essex Children’s Aid Society (the “Society”) on May 16, 2012. The appellant has not had access to her children since October 22, 2014. The Society brought a summary judgment motion seeking a Crown wardship order with no access for the mother, which was granted by the motion judge on December 23, 2014. The appellant appealed to the Superior Court of Justice and, on the appeal, alleged ineffective assistance from counsel on the summary judgment motion. The Superior Court appeal judge dismissed the appeal. The appellant appeals from that order.
[2] On this appeal, duty counsel assisted the appellant by making submissions on some, but not all, of the issues. The appellant made submissions on the remaining issues. The court appreciates the assistance given by duty counsel.
STANDARD OF REVIEW
[3] Two principles must animate the appellate review in this matter. First, the best interests of the children are the paramount concern in child protection proceedings: Children’s Aid Society of Toronto v. V. L., 2012 ONCA 890, 249 O.A.C. 388. at para. 15.
[4] Second, the appeal judge performed two tasks: he heard the appeal from the judgment of the motion judge, and he considered, in the first instance, the appellant’s submission that she received ineffective assistance from counsel on the motion. In respect of the appeal decision, this court should only intervene if the appeal judge erred in principle by failing to identify a material error in the decision made by the motion judge: V. L., at para. 17. In respect of the ineffective assistance of counsel issue, the standard of review is that established by Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
FIRST ISSUE: INEFFECTIVE ASSISTANCE OF COUNSEL
[5] Before the Superior Court, the appellant alleged her counsel on the motion failed to provide effective assistance. The appeal judge dealt with the allegation in accordance with the Superior Court of Justice Protocol – Allegations of Incompetence. The appeal judge correctly identified the test for establishing ineffective assistance of counsel in the child protection context as that set out by the Divisional Court in K.R. v. CAS, 2015 ONSC 3769, [2015] O.J. No. 2850, at paras. 7-8, which, in turn, draws on the principles articulated by this court in R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60, 203 O.A.C. 56 (C.A.), at paras. 119-120.
[6] In his reasons, the appeal judge extensively reviewed and considered the chronology of the litigation and the specific allegations of ineffective assistance advanced by the appellant. He made several key findings of fact: (i) the appellant instructed motion counsel to present the kinship plan involving the appellant’s uncle and aunt in Michigan; (ii) motion counsel complied with those instructions; (iii) the appellant adduced no evidence that motion counsel fell below the standard of competence required of counsel in similar circumstances; and (iv) there was no reasonable or realistic possibility that had counsel done something differently, the result might have been different. He found motion counsel “performed competently in the context of the proceedings before Tobin J. given the scope of her retainer”: para. 171. He dismissed the ground of appeal based on ineffective assistance of counsel.
[7] The appellant was not able to demonstrate any error in the appeal judge’s understanding of the evidence, findings of fact, or analysis that would justify interfering with his conclusion. We do not give effect to this ground of appeal.
SECOND ISSUE: CROWN WARDSHIP ORDER
Fresh evidence
[8] The appellant moves for the admission of fresh evidence on the appeal. The fresh evidence consists of documents from the CAS files and Family Visitation Program Case Notes. All the documents were created before, and concerned events which occurred prior to, the hearing of the summary judgment motion. The appellant obtained the documents as part of disclosure made by the Society. The appellant did not file an affidavit indicating when she came into possession of the fresh evidence. However, it appears the documents were in her possession before the appeal in the Superior Court, but the appellant had not reviewed all of them before the appeal hearing. The appellant’s notice of motion states the documents are relevant to the motion judge’s findings concerning the children’s fear of their mother and the emotional impact on them of access by the appellant.
[9] In Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 83 (SCC), [1994] 2 S.C.R. 165, the Supreme Court of Canada stated, at pp.185-190, that in child protection cases the consideration of a request to file fresh evidence requires “a sufficiently flexible rule, where an accurate assessment of the present situation of the parties, and the child in particular, is of crucial importance”: at p. 188. Nevertheless, an appeal is not a new hearing on the merits, especially where, as here, the appeal is taken from an intermediate appellate decision.
[10] Most of the fresh evidence the appellant seeks leave to file on this appeal was appended to her September 11, 2015 affidavit filed before the appeal judge on a motion for leave to file fresh evidence.
[11] The appeal judge dealt with the appellant’s fresh evidence at considerable length: at paras. 237 to 260. He concluded that by filing the fresh evidence, the appellant, in effect, was seeking a fresh hearing of the entire history of the care of the children from their date of apprehension until the summary judgment motion: at para. 245. In the result, the appeal judge admitted the evidence, but declined to give effect to it because: it was designed to support the appellant’s new plan for the children to be returned to her; more than three and half years had passed since the children were apprehended and placed in foster care; and it could not be assumed that placing the children in one of the settings proposed by the appellant – their return to the appellant or placement into the care of the appellant’s friend, Ms. Reimer – would be successful.
[12] Before us, the appellant seeks to re-file essentially the same evidence considered by the appeal judge and asks us to consider and weigh the evidence afresh. That is not a proper function of this court. An appeal to this court does not involve a fresh hearing on the evidence but, instead, a review of the decisions made by the judges below to ascertain whether they made a material error that affected the outcome of those hearings. We see no error in the appeal judge’s determination of the admissibility and use of the fresh evidence filed by the appellant. Accordingly, we deny the appellant leave to file her fresh evidence.
The review of the motion judge’s order
[13] Before the appeal judge, the appellant made several arguments: (i) if the motion judge had exercised his fact finding powers by sifting through the entire cumulative record, he would not have found in favour of the Society; (ii) the motion judge erred by relying on affidavits that were replete with hearsay evidence; (iii) the motion judge did not consider the least disruptive course of action available; (iv) the motion judge erred in failing to grant the appellant access to her children; and (v) the motion judge erred by allowing the Society to file evidence after the motion hearing to provide the biographical information about the children required by s. 47(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”).
[14] The appellant repeats those arguments before this court. In addition, duty counsel submits the motion judge erred in (i) failing to take into account, as part of his best interests of the child analysis, the cultural and religious backgrounds of the children and (ii) failing to consider reports of assessments of both children conducted and produced by Dr. Hallam-Helbich pursuant to s. 54 of the CFSA in October and November, 2012.
[15] In his thorough reasons, the appeal judge identified the correct standard of review: at para. 175. The appeal judge considered and addressed each ground of appeal advanced by the appellant before him. He concluded that:
(i) the motion judge “undertook a considered and thoughtful analysis of the hearsay evidence before the court… The motion judge made no error in his treatment of the evidence or his finding on this point” (para. 179);
(ii) the motion judge “correctly applied the law, carefully considered the entire evidentiary record before him, and correctly found there were no material facts or issues in dispute that created a genuine issue for trial. He correctly determined that there was no possibility of an outcome other than that sought by the Society” (para. 193);
(iii) the “granting of leave to the Society to file further evidence as to the statutory findings caused no prejudice to the appellant. Any claims to the contrary are specious” (para. 197);
(iv) there was sufficient evidence before the motion judge to ground his ruling that access by the appellant to the children had caused the children emotional harm (para. 203); and
(v) even if he admitted the appellant’s fresh evidence, it would not alter his decision that the motion judge did not err in finding there was no genuine issue for trial “in respect of either the finding that the children are in need of protection or the disposition” (para. 239).
[16] The appellant has not demonstrated the appeal judge erred in principle by failing to identify a material error in the motion judge’s decision. The reasons of the appeal judge thoroughly and carefully reviewed the decision below and the evidence.
[17] The motion judge gave extensive reasons for his decision. The motion judge specifically took into account the children’s cultural background, finding that aspect of the children’s best interests would be better met by the appellant’s plan to place the children with her relatives: at para. 63. However, the motion judge concluded that taking into account all the other factors identified in s. 37(3) of the CFSA, the Society’s plan would better meet the needs of the children.
[18] The motion judge did not ignore the assessments conducted by Dr. Hallam-Helbich: at para. 7. However, those assessments were conducted two years before the summary judgment motion was heard, and the motion judge had before him more current evidence about the interaction between the appellant and her two children.
[19] Consequently, we see no basis upon which to interfere with the decisions below.
DISPOSITION
[20] For the reasons set out above, we dismiss the appellant’s motion for leave to file fresh evidence and we dismiss her appeal.
“Alexandra Hoy A.C.J.O.”
“David Brown J.A.”
“Grant Huscroft J.A.”