WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

(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 . . . publication of the report, . . ., 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) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

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.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2015-02-10

Court File No.: Halton C509/12

Between:

The Children's Aid Society, Region of Halton Applicant,

— And —

A.W. and G.K.W. Respondent parents

Before: Justice Sheilagh O'Connell

Heard on: February 10, 2015

Endorsement released on: February 10, 2015

Counsel

Diane Skrow — counsel for the applicant society

Robert Brooks — counsel for the respondent mother, A.W.

G.W. — on his own behalf

Janet Moss — representative for Legal Aid Ontario

O'CONNELL J.:

[1] Motion for Direction

[1] The Children's Aid Society, Region of Halton ("the society") has brought a motion today for an order that the Court provide direction to the parties with respect to how this trial will proceed given that the respondent father, G.W., has not been issued a legal aid certificate and, therefore, will not have legal counsel in this proceeding.

[2] This matter was scheduled to proceed to trial today. Unfortunately the trial dates had to be vacated. The Director General for Legal Aid Ontario in this Region has determined that a legal aid certificate will not be issued for the respondent father to be represented by counsel in this trial.

Background

[3] This is a crown wardship trial. The respondents are the mother and the father of the children who are subject to this status review proceeding. There are two children, ages 7 and 4 years old. The children are currently in the care of their maternal aunt and uncle in a kin-in-care foster home, where they have resided since September of 2014.

[4] The mother and father are separated. They have been separated since February of 2013 or earlier.

[5] The mother and father have opposing plans. The mother has counsel, funded by Legal Aid Ontario. She is seeking that the children be returned to her care. The father does not have counsel. He too is seeking that the children be returned to his care. The society is seeking that the children be made crown wards with access.

[6] The first day of trial in this matter was scheduled for December 10, 2014. The trial was scheduled for four days. The society is calling five society witnesses and one expert, a parenting capacity assessor. The mother is calling a number of witnesses, including her own expert, who is critiquing the findings and recommendations of the society's parenting capacity assessor. It is unclear what witnesses the father is calling.

[7] On the first day of trial, the father stated that he had applied for a legal aid certificate but had been refused. The Court reviewed the letters from Legal Aid Ontario that the father had with him on that day. Ms Janet Moss, a representative from Legal Aid Ontario, also attended Court at the court's request and provided some helpful background information.

[8] It appeared that the father was indeed refused a legal aid certificate some time ago to appeal the decision of the Honourable Justice Zisman after a trial on the issue of the protection finding in this matter, rendered on September 4, 2013. The father was represented by counsel at that trial. The father was also refused a "change of lawyer" request regarding this earlier proceeding. As the court understands it, after Justice Zisman's ruling, Legal Aid Ontario deemed the issues to be close to resolving and would not grant a change of lawyer. The father did not appeal this decision. It is unclear why the father no longer had a lawyer.

[9] However, on April 22, 2014, the society amended its application and is now seeking an order that the children be made crown wards with access. The parents were served with the amended application on June 5, 2014. It appeared that the father had not informed Legal Aid Ontario that he was now facing a possible crown wardship trial and was without a lawyer.

[10] On December 10, 2014, the first day of trial scheduled, the Court became very concerned that the father was proceeding without counsel, after speaking directly to the father, and hearing from counsel for the mother and counsel for the Society. The respondent father did not appear to understand that this trial was not a 're-consideration' or appeal of the trial before Justice Zisman with respect to the child protection finding. He also seemed to have some other basic misunderstanding about the process.

[11] As the father's only source of income is Ontario Disability Support Program benefits (ODSP), he is presumably financially eligible for Legal Aid Ontario services. The Court therefore adjourned the trial to January 30th, 2015, which was the next scheduled date for trial. The Court wrote a detailed endorsement on that day requesting that Legal Aid Ontario assist the father in applying for a legal aid certificate for trial, in light of the principles articulated by the Supreme Court of Canada in the decision of New Brunswick, Ministry of Health and Community Services v. J.G., [1999] 3 S.C.R.. The hearing was then adjourned to January 22, 2015 at 10:00 a.m. to monitor the outcome of the father's legal aid application.

[12] When the matter returned to Court on January 22, 2015, the Court was advised by counsel for the Society and counsel for the mother that Legal Aid Ontario had indicated that it was prepared to issue a five hour certificate for a "special duty counsel" to assist the father in a Legal Aid Ontario settlement conference with all parties. The settlement conference had been scheduled for January 20, 2015, however the father did not attend because a) it was scheduled in the Society's offices and he did not wish to attend the Society's office and b) he was in Brampton court on the same date dealing with another criminal matter.

[13] Legal Aid Ontario agreed to reschedule the settlement conference to January 30, 2015 at the Legal Aid Ontario office. All parties were available at that time, as well as the Legal Aid Ontario facilitator and the special duty counsel for the father. Accordingly, the trial was adjourned to the next scheduled trial date of February 10, 2015 pending the outcome of the Legal Aid settlement conference. However, in the Court's endorsement on that day, the court held that if the matter did not settle after the Legal Aid Settlement conference on January 30, 2015:

"then Legal Aid Ontario is expected to have a lawyer prepared and able to represent Mr. [W.] for trial on February 10th, 2015, as I indicated in my previous lengthy endorsement of December 10, 2014. This is a child protection proceeding. The respondent father is seeking the return of his children to his care. He is receiving ODSP and he appears to have some difficulties. He is entitled to counsel on this three- to four-day trial, with two experts."

[14] The matter returned before me on February 10, 2015. The Court was advised that the Legal Aid settlement conference was held on January 30, 2015. The matter did not settle. The Court was further advised that the Director General for Legal Aid Ontario had determined that a legal aid certificate will not be issued for the father to be represented in this trial. Hence, the Society served the motion today seeking directions regarding how this trial should proceed given Legal Aid Ontario's position.

[15] Ms. Moss appeared as a representative for Legal Aid Ontario. She advised that any motion with respect to appointing counsel for the father had to be served on the Ministry of the Attorney General, Crown Law Office, Civil, and General Counsel for Legal Aid Ontario. She indicated that the father had not appealed Legal Aid Ontario's original decision to grant a refusal of change of lawyer in September of 2013, and therefore, he had not exhausted all his routes of appeal. She further indicated that that his time for appeal had now expired.

[16] When asked directly by the court, Ms Moss indicated that notwithstanding that the father's time for appeal had expired, the Director General for this region had reconsidered the father's request for representation at this trial and had determined that a legal aid certificate would not be issued.

The Application of the Governing Legal Principles

[17] The father needs counsel and he has a constitutional right to counsel in this proceeding. In my view, this court has jurisdiction to make an order appointing publicly funded counsel in a child protection proceeding, in light of the Supreme Court of Canada's decision in New Brunswick (Minister of Health and Community Services) v. J.G., [1999] 3 S.C.R. 46. In that case, the Court held that the principles of fundamental justice entitle a parent involved in child protection proceedings to a fair hearing, which may include a right to be represented by publicly funded counsel where this is necessary for effective presentation of the parent's case. See also Windsor-Essex Children's Aid Society v. Yvonne C. and David Vernon B., 2010 ONCJ 82; and Family and Children's Services of Guelph and Wellington County v. Kelly F. and Gavin F..

[18] In New Brunswick (Minister of Health and Community Services) v. J.G., supra, the Court held that publicly funded counsel is available when a parent can establish the following circumstances:

(a) the court might make an order that would infringe the claimant's right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms, Part 1 of Schedule B to the Canada Act 1982, c. 11 (U.K.);

(b) representation by counsel is necessary for the claimant to have a fair hearing;

(c) legal aid has been refused and all possible internal appeals have been exhausted; and

(d) the claimant does not have the means to employ counsel.

[19] All four criteria appear to exist in the circumstances of this case. The society is seeking the permanent removal of the children from the father's care. At least five professional witnesses and two experts will be called in this trial. The mother has legally aided counsel. The society has counsel. It was apparent from the court's questions today and at previous hearings, the father had a basic misunderstanding of the process. Representation by counsel is necessary for the father to have a fair hearing.

[20] The father does not have the means to employ counsel given that his only source of income is a disability benefit (ODSP). Finally, it appears that all possible internal appeals have been exhausted. Although the father's time for appeal of the original refusal to issue a new certificate had expired, the Court has been advised that the Director General has reconsidered the father's application for legal aid, presumably in light of the fact that the society has now amended its application and is seeking crown wardship and the Court's endorsements. However, it has been determined, for reasons unknown, that a certificate will not be issued.

[21] Before I make this determination and consider appointing publicly funded counsel for the respondent father in this proceeding, I invite representatives from Legal Aid Ontario and the Attorney General for Ontario, to make submissions on this issue.

[22] Therefore, this hearing is adjourned to February 25, 2015 at 10:00 AM in Milton Courtroom number 3, so that representatives from Legal Aid Ontario and the Attorney General of Ontario, if necessary, can attend to make submissions regarding the court's motion to appoint publicly funded counsel for the respondent father in this proceeding.

[23] Court staff is directed to immediately deliver a copy of this ruling to the General Counsel for Legal Aid Ontario, the Director General for this region and the Ministry of the Attorney General.

Released: February 10, 2015

Signed: Justice Sheilagh O'Connell