WARNING
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(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
Date: March 10, 2017
Court File No.: FO-14-00000105-0003
Ontario Court of Justice
Family Court
Parties and Proceedings
In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11
And In the Matter of: T.N., a child apparently in need of protection.
Applicant: Family and Children's Services (Operated by The Brant Family and Children's Services)
Respondents: K.N. and J.B.
Reasons for Judgment
Before the Honourable Justice K. Baker
on March 10, 2017 at Brantford, Ontario
Information Contained Herein
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(7) AND 45(8) OF THE CHILD AND FAMILY SERVICES ACT
Appearances
- B. McQuestion – Counsel for the Applicant
- J. Stevenson – Agent for K.N.
- J.B. – In Person
- M. Bulbrook – Counsel for the OCL
Judgment
Baker, J. (Orally):
This was a motion by the Office of the Children's Lawyer seeking to rescind a prior order appointing that office to represent the subject child, T.N., born [date], 2015, and an order specifically removing Maureen Bulbrook as counsel for the child.
Background and Context
The order appointing the OCL was made on January 10th, 2017. It was, as is typically the case, made without notice to the OCL. It was made in the context of the herein protection application which seeks protection findings pursuant to Sections 37(2)(a)(i)(ii), (b)(i)(ii), (e) and (g) of the Child and Family Services Act, and a disposition of six months Society wardship.
Neither the protection application nor the motion seeking the interim order at first return placing the child in the Society's care sought an order appointing the OCL.
At the first return of the protection application on December 14th, 2016, a temporary without prejudice order was made placing the child in the care of the Brant Family and Children's Services. In support of its motion for the appointment of the OCL, the Society relied upon an affidavit of Amanda Hattan, the child services worker for T.N. which was sworn January 9th, 2017. The background of the request was set out therein.
Medical History of the Child
The subject child had been diagnosed shortly after birth with ventricular septal defect, atrial septal defect, and mitral valve regurgitation. Accordingly, the child remained in hospital after her birth until August 24th, 2016. Surgical intervention was required in July of 2016, but the child remained medically fragile thereafter. On August 12th, 2016, the mother signed a temporary care agreement placing the child in the care of the Society. The Society in turn, on the child's discharge from hospital on August 24th, 2016, placed the child with the maternal grandparents.
On November 11th, 2016, the Society provided the parents with notice that the Society would terminate the temporary care agreement effective December 1st, 2016, at which time the child would be returned to the care of her mother with the proviso that the maternal grandparents remain involved with the child's care.
Critical Medical Event
On December 7th, 2016, the child was brought to Brantford General Hospital, from which she was airlifted to McMaster Children's Hospital where she was at the time that the motion to appoint the OCL was heard.
On December 15th, 2016, medical staff advised the Society workers and the family that the child had been diagnosed with a blood infection. There was a fear that the infection might spread to the child's brain. She was experiencing seizures. The child had not shown much improvement over the course of her hospitalization. Medical staff believed that the damage to the child was in the severe range. She would quite likely suffer significant permanent disability as a result.
In mid-December 2016, the child suffered a cardiac arrest. By this point a quality of life specialist had been brought in to consult. Discussions ensued about the relative value of keeping the child alive, versus the suffering the child might experience as a result of measures employed to maintain the child's life. The child's health, and indeed life, remained precarious in the ensuing days. By early January medical staff wanted to convene a meeting of the parties to discuss its view that ongoing medical intervention was not in the child's best interests. In particular, the medical team was of the view that should the child suffer another cardiac arrest, resuscitation might not be in her best interests.
Appointment of OCL and January 13th Hearing
As a result of that situation the Society took the view that legal representation was necessary to protect the interests of the child. Although the motion was brought on an ex parte basis, mother's counsel learned of it. That counsel, Charles Mota, attended the hearing. Mother did not take a position with respect to appointment of the OCL. Mother did, however, understandably express significant agitation about the situation that was developing. The mother understood, seemingly correctly, that the hospital was recommending a do-not-resuscitate order. Mother vehemently disagreed with such an order. She was very concerned that the Society, who would seem to retain authority to make medical decisions for the child under the terms of the temporary without prejudice order, might at some point capitulate to the recommendation of the medical team.
At the mother's request then, an urgent hearing was scheduled to address who would have authority to make medical decisions for the child pursuant to Section 62 of the Child and Family Services Act. By the time of the January 13th hearing, Ms. Bulbrook had been appointed by the OCL and Ms. Bulbrook participated in the hearing. Ms. Bulbrook did not have very much time at all from the time she was assigned until the hearing, and as a consequence she had very little preparation time. She did, however, cross-examine Society witnesses to bring out evidence that she felt was relevant to the matter. On conclusion of the hearing the court ordered that the mother have authority to consent to any medical decisions for the child. Shortly thereafter the OCL brought the herein motion.
OCL's Position
The OCL relies upon the affidavit of Jane Long, the legal director of the personal rights department of the OCL, sworn February 2nd, 2016 in support of its motion. In that affidavit, Ms. Long points out that the OCL is, by virtue of the child's age and health condition, unable to ascertain views and preferences. Ms. Long then goes on to review the submissions made at the January 13th, 2017 hearing about medical authority and said that her understanding was that the mother and the Society were "on the same page regarding the child's interest in regard to her medical needs". This was because at the time of that hearing, both the Society and the mother had stated that they would not as of that moment agree to a do-not-resuscitate order for the child.
Ms. Long then goes on to say that she understood the basis for the Society's opposition to the removal of the OCL was that there was a possibility the hospital would take the matter to the Consent and Capacity Board, and the Society took the view that if it did, the OCL should represent the interests of the child in that venue. Ms. Long pointed out the appointment of the OCL in the protection proceeding would not in fact extend to the review board.
Legal Analysis
Statutory Framework
The relevant governing statutory provisions are set out at Section 38 of the Act. This requires that the court shall determine as soon as practicable after the commencement of the proceeding whether legal representation is desirable to protect the child's interests. Where the court determines legal representation is desirable to protect the child's interests, the court shall direct that legal representation be required.
Section 38(4) then provides criteria the court must consider in determining the issue of legal representation for a child. It provides as follows:
Where,
(a) the court is of the opinion that there is a difference of views between the [persons] and a parent or a society, and the society proposes that the child be removed from [the] person's care or be made a Society or Crown ward under paragraph 2 or 3 of subsection 57(1);
(b) the child is in the Society's care and, (i) no parent appears before the court, or (ii) it is alleged that the child is in need of protection within the meaning of clause 37(2)(a), (c), (f), (f.1) or (h); or
(c) the child is not permitted to be present at the hearing,
legal representation will then be deemed desirable to protect the child's interests, unless the court is satisfied taking into account the child's views and preferences if they can be reasonably ascertained, that the child's interests can otherwise be adequately protected.
It's evident then from the face of the section that there is a presumption that legal representation is desirable in certain circumstances.
Application to This Child
This child is in the care of the Society and is alleged to be in need of protection pursuant to Section 37(2)(a)(i) and (ii) of the Act. Because of her age she would not be permitted to be present at the hearing even assuming her medical condition would permit it, which clearly, it would not. Accordingly, her legal representation would be deemed desirable unless her interests can be otherwise protected.
Can the court be satisfied that the child's interests can be otherwise adequately protected? I do not see that it can. The situation has now changed from what was understood by Ms. Long when she swore her affidavit. The executive director of Brant Family and Children's Services, Andrew Koster, sets out the current situation in his affidavit sworn February 8th, 2017. As of January 31st, 2017, a hospital had made a clear recommendation as to medical treatment for the child. The mother has twice rejected it. Mr. Koster makes it clear in his affidavit that if the Society had authority to make the medical decision for the child, Mr. Koster would accept the medical advice. I infer from this, together with the totality of the evidence in the case, that the hospital has recommended either a DNR, or an order restricting what measures are to be employed if resuscitation is required, or generally, to prolong a child's life.
The Society and the mother are no longer "on the same page" with respect to the medical decisions for the child.
Consent and Capacity Board Concerns
Turning now to the OCL's concern that the CFSA appointment is being improperly used as a springboard for representation in a possible future Consent and Capacity Board hearing. For whatever reason, the hospital has, at least so far, declined to take the matter to the Consent and Capacity Board and seems unlikely to do so. If the Society was previously under a misapprehension that an order appointing the OCL in the CFSA proceeding would ensure the child had representation in any future Consent and Capacity Board hearing, that inaccuracy is now well and truly laid to rest by Ms. Long's affidavit, although I note in this regard that there's nothing in the evidence other than Ms. Long's assertion that the Society was under any such misapprehension.
Although the Society disagrees with the mother's current position to reject the proposed "treatment", it has not yet commenced a motion to review assignment of medical treatment authority. Mr. Koster has deposed that he's of the view that the Consent and Capacity Board is the correct forum in which to direct the current impasse between the hospital and the mother. I tend to agree. But the fact remains that the Society is statutorily bound to continuously review and consider its position in this litigation. The door remains open to the Society to seek to have the medical authority for decision making vested in the agency. The child's situation is dynamic. At any time she could suffer an adverse medical event and a decision may have to be made. There is a distinct possibility that this issue may yet re-emerge. If so, the court will be faced with a decision of the most serious magnitude for this child. This is because vesting the authority with the mother would seem to inevitably result in a continuation of life-prolonging intervention. Assigning the authority to the Society may well result in a withholding of such measures. Surely it is desirable for the child's interests to be represented in a matter of such profound importance.
Also on this point, the child remains the subject of a protection application and is currently in the care of the Society. The litigation has progressed only so far as a temporary without prejudice order. The Society has alleged the child has actually suffered physical harm as the result of the parents' failure to provide for, supervise or protect the child. The OCL has an important role to play in protecting the child's interests in the proceeding or generally.
Role of OCL Beyond Views and Preferences
I turn now to the OCL's suggestion, as specifically noted in Ms. Long's affidavit, that the child is unable to articulate views and preferences and that accordingly, legal representation is unwarranted.
It is clear that advocating views and preferences is an essential function of the OCL in its role as legal representative of children. But it is not the only function. This was recognized by the Court of Appeal in Strobridge v. Strobridge, 18 O.R. (3d) 753, wherein the court referenced the applicable provisions of the CFSA and said:
Section 38(5) makes specific reference to the provision of legal representation for a child in the context of the need to protect a child's interests; it appears to contemplate that the child's views and preferences (if they can be reasonably ascertained) should be part of the consideration of the child's "interests".
Notably, the Court did not say that views and preferences should constitute the totality of protection of a child's interests.
The jurisprudence has repeatedly acknowledged that the role of the OCL extends beyond merely advocating children's views and preferences. In Kenora-Patricia Child and Family Services v. M.(A.)(No.2), 2005 ONCJ 39, Justice Theo Wolder was called upon to adjudicate a challenge to the role of the OCL as brought by the parents. This was a case where the child was not capable of giving instructions to counsel. At that time the OCL seemed to view its role as a vigorous advocate of children's interests, whether or not a child could provide instructions. Accordingly, its representative on that case had cross-examined the witnesses and made submissions on the issues both on findings of fact and on the law. Ultimately, the Court stated:
I find it is quite appropriate for the OCL in the context of this case, when dealing with a client who cannot give instructions, to assist the court in the factors that the court has to consider in determining the child's best interests upon the available evidence. I therefore find that in this case, the OCL has not exceeded its jurisdiction as set out in Strobridge v. Strobridge.
Similarly, in Jewish Family and Children's Services of Greater Toronto v. J.K. and S.K., 2014 ONCJ 792, Justice Caroline Jones found:
It is not essential to the appointment of a legal representative for the child under Section 38 of the Act, that the child be capable of providing instructions to counsel. Thus, a legal representative may be appointed under the Act for a child who is severely developmentally delayed or even non-verbal.
For a non-verbal child who is unable to communicate wishes, the position will be formulated on behalf of the child by his or her legal representative will be based upon the factors relevant to the child's interests, other than the child's wishes.
In C.R. v. Children's Aid Society of Hamilton, [2004] O.J. No. 1251, Justice George Czutrin was called upon to adjudicate an application by the First Nation to remove the OCL. Interestingly, the OCL had made the following submission in responding to the application: "The court may only exercise its discretion to remove the Children's Lawyer where the child does not require representation of any kind." As an aside, I note that submission seems rather distant than the approach that is being taken by the OCL in this case.
In any event, in determining the issue, Justice Czutrin had cause to reflect on the role of the OCL in representing a child who could not give instruction. He noted as follows:
To the extent that counsel acting on behalf of a non-instructing client represents the child's best interests and not his or her views and preferences, the Children's Lawyer becomes not the advocate of the children, but a protector of the children. In such a role that is acting without clear instructions, protecting the children's interest can clearly involve presenting the lawyer's perception of what would be best to protect the child's interests.
The court then went on to say:
It's for the children's counsel ultimately to present whatever evidence that she has or to review the evidence and make submission to protect the child's best interest. It should not be based on personal views, but based on a position that the Children's Lawyer takes based on the evidence and the law to advance a position to protect the children.
It seems to me that the observation that the subject child is incapable of providing instruction is of no assistance whatsoever to the OCL in its position that the original order should be rescinded.
Adequacy of Other Representation
In argument, Ms. Bulbrook suggested that the OCL was unnecessary as Society and mother's counsel were well able to present any relevant evidence in the proceeding. I find this argument somewhat problematic. If that was the reason for not appointing the OCL, then the OCL would virtually never be appointed for the child too young to express views as long as at least one parent was represented. If it was the intention of the legislature to limit OCL involvement in that fashion, I think it would have expressly stated it.
In any event, both the parent and the Society are acting under somewhat different imperatives. The parent is likely to present evidence that furthers their position and not to present evidence that does not. The Society, of course, has an obligation as an institutional litigant and agency of the State to present all evidence whether it favours its case or not. But the Society has many different interests at play in dealing with any one case. It is, after all, a public agency answerable to government oversight. In many ways it may also be said to be answerable to the community that it serves. It has financial limitations that may cause tension in allocating resources. This all has the potential to impact any case or litigation decision it makes, particularly one that raises such highly evocative issues such as issuing a DNR order for an infant. Even where, as seemingly in this case, the Society is not affected by such pressures in making case decisions, there's a potential it could be seen to be doing so.
The OCL, however, has only one mission: to protect the child's interests. Protecting this child's interests could involve calling medical evidence that the Society doesn't see necessary to its case, in cross-examining witnesses to elicit relevant evidence about either the cause of the child's health crisis that precipitated this application, or that are relevant to any potential further hearing on the allocation of medical authority. It could also encompass making submissions on relatively esoteric areas of law such as the test to be applied at a hearing under Section 62 of the CFSA.
Current Impasse
Presently, there is an impasse with respect to medical decisions for this child. The Society seems to have accepted the medical advice that further interventions of some type are no longer in the best interests of the child. It takes the position that a Consent and Capacity Board hearing is the appropriate venue to resolve the situation.
The hospital, however, is declining to move forward to instigate such a hearing. No one else has the authority to seek a hearing by that tribunal.
The Society, despite its acceptance of the medical advice that some further interventions may not be in the best interests of the child, is not taking steps to review the assignment of medical decision-making authority. This is a medically fragile child. Her situation is precarious. At any moment as a result of a further medical event a decision may be called for. A medical recommendation has been made. The mother is rejecting it. The Society believes, rightly or wrongly, that the mother's position and her rejection of the advice is not consistent with the best interests of the child. It would seem odd, indeed, that two institutional bodies, being the Children's Aid Society and the hospital, could see the situation as being contrary to the child's best interests and yet not do anything to address it.
All this, of course, is to say that if the OCL agrees with the Society's apparent view that the current decision-making regime is no longer in the best interests of the child, then part of its role in protecting the child's interests might be to seek a re-hearing of the issue, or to advocate with the hospital to have the issue dealt with in an appropriate forum.
Burden of Proof
The onus or burden of proof with respect to a motion to remove the child's legal representative rests on the moving party. Here, this is the OCL itself. I find the OCL has not met its onus and accordingly the motion will be dismissed.
Costs Decision
Rather unusually, the Society is seeking costs against the OCL with respect to this motion. The presumption that a successful party is entitled to the costs of the motion does not apply to a government agency pursuant to Rule 24(3) of the Family Law Rules. That provision simply provides that the court has a discretion to award costs to or against a government agency whether it has or has not been successful. There are few cases that address the test to be applied in determining costs against the OCL, probably because there are so few cases in which costs are sought against the OCL.
In Children's Aid Society of the City of St. Thomas and County of Elgin v. S.L., [2004] O.J. No. 289, the court was called upon to determine whether costs should be awarded against the OCL. The court found that the rule is not equivalent to conferring immunity to costs against government agencies. The essence of the rule is that factors other than litigation success such as bad faith on the part of a party or lawyer or some lesser unreasonable conduct that frustrated the primary objective of the rules should be considered in a court's determination whether costs should be ordered.
It seems to me that some analogy can be made to the cases that address when a costs order should be made against a Children's Aid Society. The jurisprudence emphasizes that protection agencies are not ordinary litigants. They, much like the OCL, have a mandate to protect children. The essential test for the appropriateness of an award of costs against the Society is whether the Society should be perceived by ordinary persons as having acted fairly. Other cases have said that costs should only be awarded against a Society in "exceptional circumstances". Still other cases have relied on a principle of accountability to base awards of costs against the Societies.
Clearly, it's a broad discretion that must have regard to the specific facts of the case. The following factors are relevant in assessing this issue. There was a statutory presumption that legal representation would be desirable for this child given the nature of the allegations and the fact the child is not able to attend court. This would be overcome only if the court could find that the child's interests could be otherwise protected. The OCL did not advance any evidence to support such a contention. It relied only on the bald submission that Society counsel and mother could present whatever evidence might be needed. The OCL's reliance on the notion that the child is unable to instruct was contrary to the accepted role of the OCL as legal representative. It was also obviously known to the court at the time the original order was made, given the evidence that the child was 13 months old and extremely medically compromised.
The OCL made no effort to update its evidence to reflect the current situation as of the date of the hearing of the motion. The motion was heard February 24th, 2017. The OCL relied on Ms. Long's affidavit sworn February 2nd, 2017 to assert that the mother and the Society were "on the same page" with respect to medical decisions. In making this assertion, Ms. Long relied on the information from the January 13th, 2017 hearing. It was abundantly clear from the Society's evidence that by February 8th, 2017, being the date that Mr. Koster swore his affidavit, the two parties were emphatically not on the same page. The OCL, however, did not try to take any steps to address this significant change and re-evaluate whether its motion should still go ahead despite this very material development.
The OCL apparently has not and did not in advancing this motion, turn its mind to its role in protecting the child's interests whilst it remains the legal representative. This is because the executive director of the Society has deposed:
It's the Society's position that it's clear that the current impasse between the mother and McMaster Children's Hospital is untenable and should not be permitted to continue at the expense of the child's best interests given the child is in a palliative state and would continue to suffer.
The OCL did not reply to that affidavit and thus presumably accepts that contention that the current situation is persisting at the expense of the child's best interests. It is impossible to reconcile its position that the child's interests can be protected without its involvement with that uncontroverted evidence.
One would have thought the OCL might have reconsidered its position upon receipt of the affidavit of Mr. Koster. It doesn't seem to have done so.
The cases dealing with the appropriateness of costs award against Children's Aid Society repeatedly referenced a need for the Society to continuously re-evaluate its position as matters develop. Not doing so puts the Society at the risk of an award of costs. It seems to me the same principle should be applicable in consideration of costs against the OCL.
I find that the OCL did not properly re-evaluate its position to address a changed situation and new evidence. For that reason, costs should be awarded.
Counsel for the Society, Mr. McQuestion did not stipulate a specific quantum of costs that was being sought. The inference I draw from that is the Society is seeking something of a token costs award to make its point. I accept that that is appropriate given this is a situation of transfer of funds from one governmental agency to another.
Disposition
So for oral reasons given, the OCL motion to rescind the previous Section 38 order is dismissed. OCL to pay costs in a fixed sum of $100 to the applicant, Brant Child and Family Services.
So where do we go from here?
MR. MCQUESTION: Your Honour, there's a settlement conference scheduled already for March 29th, so I would propose that we just look to that date.
THE COURT: All right. So no need for further endorsement then?
MR. MCQUESTION: No, Your Honour.
THE COURT: Thank you very much.
MS. BULBROOK: Thank you, Your Honour.
...WHERE UPON THESE PROCEEDINGS WERE ADJOURNED
Certificate of Transcript
FORM 2
Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Susan Powell, certify that this document is a true and accurate transcription of the recording of BFACS v. K.N. and J.B., in the Ontario Court of Justice held at 44 Queen Street, Brantford, Ontario, taken from Recording 0211_5_20170310_090705__6_BAKERKAT.dcr, which has been certified in Form 1.
Date: ______________________________
Signature: ______________________________
Susan C. Powell
Authorized Court Transcriptionist for Ontario
ID - 7479655017
519-752-2276
Released: March 10, 2017