WARNING

The court hearing this matter directs that the following notice should 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 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: August 10, 2017

Court File No.: C81147/15

Ontario Court of Justice

Between:

Children's Aid Society of Toronto

Applicant

- and -

S.A. and M.M.

Respondents

Counsel

Karen Freed, for the Applicant

Sheryl Brodey, duty counsel, for the Respondent, S.A.

Chayanika Dutta, for the Respondent, M.M.

Herschel Gold, on behalf of the Office of the Children's Lawyer, for the child

Marie Abraham, for Legal Aid Ontario

Heard: August 8, 2017

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] This is a status review application proceeding where the Children's Aid Society of Toronto (the society) is seeking an order that the subject 10-year-old child (the child), be placed in the care of the respondent, M.M. (the father) for ten months, subject to society supervision, with access to the respondent, S.A. (the mother) in its discretion. The father and the child support this claim. The mother opposes the application and seeks an order placing the child in her care.

[2] The mother is presently self-represented.

[3] The court, on its own motion, asked the parties to make submissions as to whether the court should order the Province of Ontario to provide counsel for the mother, or, in the alternative, make an order appointing amicus curiae (amicus).

[4] Legal Aid Ontario (LAO) and the Attorney General of Ontario (AG) were put on notice and given the opportunity to make submissions on this issue.

[5] LAO took the position that this was an appropriate case to appoint amicus, as opposed to ordering the Province of Ontario to provide counsel for the mother.

[6] The society agreed with LAO.

[7] The AG did not attend at court or take a position on whether a state-funded lawyer should be ordered for the mother or an amicus appointed. Counsel for LAO, who had been in communication with counsel for the AG, advised the court of her understanding of the AG's position being that:

a) The AG would not be making submissions on this issue.

b) The AG recognizes that Charter rights are engaged in this matter.

c) The AG requests that if the court orders state-funded counsel for the mother or appoints amicus, the lawyer be paid at legal aid rates.

[8] The AG did not ask for any other terms and conditions for an amicus appointment.

[9] Both the father and child's counsel took no position on the issue.

[10] The mother wants to have legal assistance in the proceeding. It was apparent that she did not appreciate the difference between having her own counsel and the appointment of amicus. The court will operate on the assumption that she would prefer to have her own counsel.

[11] None of the parties filed affidavit evidence. However, the material facts are not in dispute and are contained in the continuing record and court endorsements.

Part Two – Background Facts

[12] The mother and father are the parents of the child.

[13] The parties were involved from 2013 to 2015 in a high-conflict domestic case (the domestic case) about the child.

[14] On March 6, 2015, in the domestic case, the mother was found in contempt of this court's order dated October 20, 2013, for denying the father access to the child.

[15] The court adjourned the mother's sentencing hearing to give her the opportunity to comply with the court order.

[16] The mother did not comply with the court order. The court again adjourned the mother's sentencing hearing and asked the society to investigate the matter, noting that it had concerns about the mother's presentation at court.

[17] The child was apprehended from the care of the mother on June 25, 2015 and placed in the care of the society. The child had disclosed to the society that the mother had left her alone at night on multiple occasions. The society started a protection application.

[18] The court stayed the domestic case pursuant to section 57.2 of the Child and Family Services Act (the Act). It made no further sentencing decision on the contempt finding, as the child was no longer in the mother's care.

[19] On April 26, 2016, on a motion for summary judgment, Justice Debra Paulseth found the child in need of protection pursuant to clauses 37(2)(b) (risk of physical harm) and (g) (risk of emotional harm) of the Act.

[20] On December 13, 2016, on a motion for summary judgment, Justice Carole Curtis made the child a society ward for 4 months, with access to the parents to be in the society's discretion.

[21] The mother's access with the child was problematic. She was observed by society workers as not being child-focused at visits, often crying and disparaging the father to the child.

[22] The mother stopped seeing the child from December 2016 until March 24, 2017.

[23] Access between the child and the father was started and expanded over time. This was a successful process.

[24] The society issued this status review application on April 7, 2017.

[25] On motion, on April 12, 2017, the court placed the child in the temporary care and custody of the father, subject to society supervision. Temporary access between the child and the mother was ordered to be in the discretion of the society and the father, in consultation with the child.

[26] The society reports that the placement of the child with the father has been successful. The mother is now regularly seeing the child.

[27] The mother has had three lawyers who have previously represented her in the domestic and child protection cases. All three lawyers were funded by LAO. Each of these relationships have broken down.

[28] The mother has been self-represented to date on this status review application.

[29] The mother is in receipt of public assistance. Her financial eligibility for legal aid is not in issue.

[30] The mother has been denied a legal aid certificate by LAO because of her frequent changes of counsel.

[31] The mother did not file an Answer/Plan of Care within the required time under the Family Law Rules. On motion, she was given an extension of time to file her Answer/Plan of Care. She did this with the assistance of duty counsel.

[32] On June 7, 2017, the court endorsed that:

a) It was concerned that the mother was unrepresented.

b) There are serious matters for the court to determine, including where the child should live and the amount of contact the child should have with the mother.

c) This is a complex case and the mother is not well-equipped to represent herself effectively.

d) The case is being delayed and the child's permanency planning will be delayed if the mother is unable to obtain effective legal assistance.

e) There are Charter issues involved in these circumstances.

f) Court staff should send a copy of the endorsement to LAO.

g) If a legal aid certificate was not granted, a representative from LAO should attend on the next court date so a process could be discussed to determine if the court should appoint counsel for the mother.

[33] Counsel for LAO, Mr. Stanley Jenkins, attended court on July 11, 2017 and expressed his client's concern about providing the mother with another legal aid certificate for counsel. Based on her history, he submitted, there is a significant risk of another breakdown in the mother's solicitor-client relationship. Mr. Jenkins provided the court with helpful suggestions. He proposed that the court either appoint amicus or that the mother seek a private lawyer and bring an application for her own state-funded counsel.

[34] The case was adjourned for the mother to obtain legal advice about bringing a motion seeking state-funded counsel for her, with an alternative request for amicus.

[35] The mother was unable to obtain this legal advice and did not bring a motion.

Part Three – The Charter

[36] Everyone agreed that the mother's Charter rights are engaged by the relief claimed in the society's status review application.

[37] Justice Ellen Murray conducted a detailed review of these Charter rights in Catholic Children's Aid Society of Toronto v. J.R.C., [2015] ONCJ 729. Justice Murray set out the following:

a) Section 7 of the Charter (section 7 rights) provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.

b) The right to security of person has been held by the Supreme Court of Canada to protect both the physical and psychological integrity of the individual. See: R. v. Morgenthaler, [1988] 1 S.C.R. 30 at par. 173.

c) The right to state-funded counsel in a child protection proceeding was first recognized by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] S.C.J. No. 47 (referred to as J.G.).

d) The court in J.G. found that the society's application to keep the mother's children in society care was a prospective violation of her section 7 rights to security of person and that it would not be in accordance with the principles of fundamental justice if she was required to proceed without counsel. Section 1 of the Charter would not save this breach. The appropriate remedy under section 24 of the Charter was to order funding of counsel.

e) The court in J.G. held that the key to establishing a restriction of security of person in a protection proceeding is that the state action would label a parent as unfit, "usurp the parental role", or pry into the intimacies of the parent/child relationship and that the state action would have a "serious and profound" effect on the person's psychological integrity.

f) The court in J.G. found that the state removal of a child from a parent's custody is a serious interference with that parent's psychological integrity.

g) In determining what would constitute a fair procedure, the court in J.G. set out the following principles:

1. A parent must have an opportunity to present his or her case effectively, so that the court may assess the best interests of the child based on all the relevant evidence.

2. Whether a parent must have counsel in order to do this depends on the circumstances. Factors to be considered include the seriousness of the interests at stake, the complexity of the proceedings and the capacities of the parent.

3. Protection proceedings are adversarial in nature, and the parties are responsible for planning and presenting their case. A parent must adduce evidence, cross-examine witnesses, make objections on evidentiary issues and present legal defences "in what is to many a foreign environment, at a time when they are under significant emotional strain".

h) There is no principled reason to restrict consideration of the potential breach to section 7 rights posed by a protection proceeding to cases where a parent is threatened with loss of custody. J.G. did not limit the application of its reasoning to such cases. In the case before her, Justice Murray found that the mother's section 7 rights were engaged when the society sought an order placing the children with her, subject to a strict order of society supervision.

[38] Section 7 rights are certainly engaged when the society seeks a protection order that removes the child from the person who had charge of the child prior to society intervention (the mother) and seeks to restrict her access to the child (to be in its discretion).

Part Four – Amicus

[39] The Latin term "amicus curiae" translates to "friend of the court".

[40] Justice John Keast conducted a comprehensive review of the history of amicus appointments and the circumstances under which such orders are made in Morwald-Benevides v. Benevides, 2015 ONCJ 532, where the AG sought to set aside amicus orders he had made regarding both parents in a high-conflict custody case. Justice Keast dismissed this motion.

[41] In paragraph 43, Justice Keast summarizes the features of amicus extracted primarily from jurisprudence of the Supreme Court of Canada and provincial and federal appellate courts, as follows:

(a) The ultimate and primary purpose is to provide assistance to trial judges on issues of law or facts, wherein the trial judge is of the view that an effective, fair and just decision cannot be made without such assistance.

(b) Such orders are made to ensure a fair trial process, the orderly conduct of proceedings and to ensure the proper administration of justice.

(c) It is usually driven by the initiative of the judge, but may also occur at the request of one or more of the parties.

(d) There are many scenarios to which amicus may apply. The class of scenarios is not closed. There is no "one size fits all" standard.

(e) The power to appoint has a high threshold. Such should be exercised sparingly and with caution. Appointments should be made in response to specific and exceptional circumstances. A judge must not externalize his or her duty to ensure a fair trial of unrepresented accused by shifting the responsibility to amicus curiae, who under a different name assume a role nearly identical to that of defence counsel.

(f) The judge decides the terms and conditions of the role, which may vary widely.

(g) Caution is to be exercised if an appointment mirrors the role of a defence counsel. The primary purpose must still be to assist the court, though there may be an incidental beneficial result for a party. In such a case, clear directions must be given to the party and amicus.

(h) There is no solicitor-client privilege between an amicus and a party.

(i) Only the judge can dismiss an amicus, not the party.

(j) An amicus may override so-called instructions or directions from a party. An amicus may operate if the party does not co-operate or remains mute or chooses not to attend court.

(k) Once an amicus order is made, the Attorney General is obligated to compensate the amicus. Although amicus may often be paid by the legal aid fund, that is not always necessarily so. There should be a negotiation process between the Attorney General and an intended amicus as to compensation. The judge may play a role in this process that is persuasive only. If the judge is not satisfied as to the compensation issue, the judge ought to consider the issuing of a stay of proceeding until the compensation issue can be resolved.

[42] Justice Keast rejected the submission from the AG that criminal law was the only acceptable field of amicus appointments. He wrote in paragraphs 142 to 145:

142 These statements demonstrate a naïvety of the importance of family law in an effective functioning society. Family law is involved in families and in particular with children, much earlier than the criminal justice system. Through the child protection system and civil family system, family law courts are involved at the ground level and have an impact on the antecedents that cause crime.

143 There is considerable overlap between child protection, civil family, youth criminal justice and adult criminal justice. In child protection and civil family the courts are involved in families well before the age of criminal responsibility. This early intervention contributes to the stabilization of families, in particular, children. The earlier children and their families are stabilized, the greater the impact on the conditions that lead to crime.

144 In a case such as this, the identification of pathology and issues with the parents and children allow the court to make recommendations and give directions to enhance healthy families and children.

145 The Attorney General should not view family law in a hierarchical structure compared to criminal justice. The family law value and the criminal justice value are equally important and should be viewed on an integrated basis, each interwoven with the other.

[43] This court endorses Justice Keast's comments.

[44] In R. v. Imona-Russell, 2013 SCC 43, the court wrote, in a criminal case, that "it may appoint amicus only where it requires his or her assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions". Once appointed, "the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings".

[45] Benevides and Imona-Russell were both cited with approval by Justice John McDermot in Zomparelli v. Zomparelli, 2016 ONSC 3949. In the middle of a trial, Justice McDermot found that without the assistance of amicus, it would not be fairly completed. It was apparent to him that the mother needed assistance in presenting evidence in the proceeding in a coherent matter so that the relevant issues would be placed before the court. He ordered that amicus be appointed if the mother could not obtain counsel within four weeks. Justice McDermot wrote at paragraph 8:

It has become apparent to me as this trial progressed that Ms. Conforti is becoming increasingly unable to manage the presentation of her case in this trial. It is also apparent to me that if representation of some sort is not found for Ms. Conforti this trial will not be completed…..This is harmful to the administration of justice and contrary to Rule 2 of the Family Law Rules which dictates that courts are to deal with cases "justly" which includes the requirement that a case should be heard within a reasonable period of time.

[46] Justice Keast and Justice McDermot made their amicus orders in private parenting disputes. The importance of having the amicus option available to courts in child protection cases is even more imperative as there is state intervention with the family, the risk of removal of a child from the parents, a significant power imbalance between the state and the parents and section 7 rights are engaged.

[47] It is crucial for the best interests, well-being and protection of children, and the administration of justice, that courts have the benefit of having the positions of all parties fairly presented to the court in child protection matters. This is far less likely to happen in cases where a parent cannot maintain a working relationship with counsel and are forced to represent themselves. The ability to make an amicus appointment, in the proper circumstances, provides the court with a valuable tool to ensure that the right decisions are made for children.

Part Five – Analysis

5.1 The Ability of the Mother to Fairly Present Her Case on Her Own

[48] Even in the most straight-forward cases, child protection matters can be very difficult to navigate. It is a complicated area of law. The case before the court is not a straight-forward matter. It is complex, with a litigation history, including the domestic matter, spanning ten years. These factors, along with the other circumstances of this case, make the process essentially insurmountable for the mother without meaningful assistance.

[49] The impact of this case on this family is profound. The court must decide who the child will live with and how often and under what circumstances the child will see each parent. Terms of society supervision will likely be ordered. Non-compliance with such terms could result in the child being placed in the society's care.

[50] Duty Counsel, despite their best efforts, are not in a position to understand the complexity of this case and represent the mother effectively. They have limited time to review the matter with the mother. The mother will usually have a different duty counsel at each court appearance. There is no consistency of representation for her. The mother usually speaks on her own behalf at court.

[51] The mother is unable to present her case effectively on her own. She is an unsophisticated litigant. She usually presents as highly emotional and unfocused at court appearances. She is overwhelmed by court procedures and struggles to present relevant evidence. At some appearances she has brought volumes of random documents and pictures that she wants the court to review. Most of her appearances end up with her pleading with the court to return the child to her.

[52] English is not the mother's first language. This exacerbates her communication difficulties.

[53] It is very clear to the court that this case cannot be effectively and justly determined unless the mother's case can be fairly presented. The positions of the society and LAO and the comments communicated to the court from counsel for the AG reflect that they fully understand this.

5.2 The Court's Options

[54] The court briefly considered the possibility of involving the Public Guardian and Trustee to act for the mother, but rejected this idea because the evidence before the court did not support the high threshold required to make such an order (see: C.A.S. v. J.H.V., 2016 ONSC 4996, per: Justice David Jarvis, for an excellent review of the test for appointment of the Public Guardian and Trustee). This option can be revisited upon presentation of further evidence.

[55] The court assumes that the mother would prefer that it make an order for state-funded counsel for her. She would have the opportunity of selecting a lawyer of her choice and the lawyer would act for her. Solicitor-client privilege would apply – this privilege does not exist with amicus. An amicus may override her instructions.

[56] LAO and the society submit that, based on the mother's history, she will be unable to maintain a relationship with counsel if an order is made for a state-funded lawyer to represent her. They both submit that the mother's section 7 rights will not be breached if the court appoints amicus. The court agrees with this submission.

[57] The court in J.G. does not state that a parent has an absolute right to his or her own state-funded counsel. The court state