WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2019-07-24

Court File No.: Toronto CFO-19-15346-A3

Between:

Children's Aid Society of Toronto Applicant

— AND —

A.J. (father of G.)

M.H. (father of Y. and L.)

L.M. (maternal aunt and caregiver of G., Y., and L.)

Respondents

Before: Justice S. O'Connell

Heard on: July 22, 2019

Endorsement regarding Request for State-funded Counsel for the Respondent L.M.

Counsel

Kenneth Atkinson — counsel for the applicant society

Samir Patel — counsel for the respondent M.H.

Respondent L.M. — on her own behalf

No appearance by or on behalf of respondent A.J.

Introduction and Background

[1] This is a child protection application commenced by the Children's Aid Society of Toronto on February 26, 2019. The three children who are the subject of the application are G., age 7, Y., age 4, and L., age 15 months.

[2] The biological mother of the three children was V.M. She was the primary caregiver of all three children. On February 10, 2019, Ms. M. was the victim of a shooting. She died of her injuries on February 13, 2019. Ms. M. was shot outside of the condominium where she lived with the children.

[3] The mother's sister and maternal aunt to the children, L.M., is currently caring for all three children, pursuant to a temporary care and custody order made in this proceeding. She is a respondent in this proceeding.

[4] The biological father of G. is the respondent A.J. He has had no face to face contact with G. for several years and he has refused to provide his address to the Children's Aid Society or participate in these proceedings, despite repeated efforts to engage him, according to the evidence filed. Following a motion, an order was made dispensing with service of the child protection application on Mr. J.

[5] The biological father of Y. and L. is the respondent M.H. He had access and regular contact with his children while they were in their mother's primary care prior to her death.

[6] According to the evidence filed in the protection application, there was a history of violence between Mr. H. and the mother. Mr. H. was charged with assaulting the mother in 2016. The criminal charge was apparently resolved by a peace bond. In 2017, the mother contacted Peel Police to report that Mr. H. had assaulted her. No charges were laid.

[7] On February 5, 2019, shortly before her death, the mother attended a police station in Toronto and reported to police that the father had threatened to kill her and had sent her angry text messages threatening to kill her. The police attended at Mr. H.'s home, however, he was not there.

[8] On February 7, 2019, Mr. H. turned himself in and was charged with uttering death threats against the mother. He was held for a bail hearing as he was on probation relating to a previous assault regarding the mother or dangerous driving (this is unclear from the child protection record). He was released on bail. According to the affidavit evidence of a child protection worker in this proceeding, Mr. H. contacted both the mother and the aunt following his release and advised the aunt that she better "fix it".

[9] On February 10, 2019, the mother was shot outside of her home and was hospitalized. The maternal aunt assumed care of the children while the mother was in the hospital.

[10] On February 11, 2019, the police reported their concerns to the society regarding Mr. H. as a caregiver for the children. The mother died in the hospital on February 13, 2019. The maternal aunt continued to care for the children following the mother's death.

[11] On February 26, 2019, the society commenced this protection application because of its concerns about either father assuming a role of primary caregiver for the children.

[12] In particular, the society had serious concerns about Mr. H. assuming custodial care given the history of domestic violence between Mr. H. and the mother, the criminal charges against the father for domestic violence against the mother, including a charge of uttering death threats immediately before the mother was shot and killed.

[13] The police also advised the society at the time that the protection application was commenced that the father was "a person of interest" in their investigation of the mother's death. However, the father had not yet been criminally charged.

[14] On February 27, 2019, the court ordered, on a temporary without prejudice basis, that all three children be placed in the care and custody of the maternal aunt, with access to the respondent fathers at the discretion of the society as to frequency, duration and level of supervision.

[15] Mr. H. is currently living with the paternal grandparents. He is exercising access to the children, as supervised by the society.

[16] On June 5, 2019, the society brought a motion for the production of the father's police records. This was opposed by the father. Following a contested hearing, for oral reasons given, the court ordered that copies of the father's police records be produced to counsel for the society, in accordance with section 130 of the Child, Youth and Family Services Act ("CYFSA"), subject to a number of conditions set out in the Court Order.

[17] At the June 5th hearing, the court learned that the police were apparently moving in "a different direction" in their investigation of the mother's death, however, no further information was provided.

[18] This matter returned before me on July 22, 2019. The court was advised by the society that they had now received the father's police records, which documented a history of domestic violence between Mr. H. and the mother during their relationship.

[19] The court was also advised by father's counsel that the charge of uttering death threats against the father had been withdrawn by the Crown. The police were continuing to investigate the mother's death and no charges have been laid.

[20] The society also advised the court that it is now exploring the expansion of access between the father and the children, including moving towards unsupervised, overnight access.

[21] The father, through his counsel, has served an Answer and Plan of Care regarding the children. The father wants the two younger children eventually placed in his care and would like to commence expanded overnight access. He does not wish to plan for the oldest child (who is not his biological child), but he states that he will facilitate access between the oldest child and the two younger children.

[22] The society appears to be moving towards a plan of unsupervised overnight access between the father and the two younger children while further investigating the father's plan.

[23] This raises some serious child protection concerns for the court that need to be addressed.

[24] The maternal aunt advised the court that she wishes to permanently plan for all three children and that she does not believe it is in the children's best interests to be placed in Mr. H.'s care or that the siblings should be separated. The aunt has also expressed fear of the father, according to the society's affidavit materials.

[25] The court advised the society that before it considers moving towards any unsupervised overnight access with the father, it will need to bring a motion with supporting evidence of this request, which should include further information, if possible, regarding the status of the ongoing police investigation into the mother's death. The court also directed the society to include a copy of the father's police records in the motion materials.

[26] The society's motion seeking an order to expand the father's access is scheduled for August 16, 2019 at 11:00 AM.

The Request for State Funded Counsel for the Respondent Aunt in this Proceeding

[27] The aunt was advised to apply for a legal aid certificate after the court hearing on June 5, 2019. She was provided with the 'purple referral form' by duty counsel and assisted by the society child protection worker.

[28] On the return court date of July 22, 2019, the court learned that the aunt was refused a legal aid certificate, for reasons unclear to the court.

[29] The court was also advised on the same day that duty counsel could not assist the aunt in court during the hearing, given the recent changes to Legal Aid Ontario's funding.

[30] The aunt has had temporary care and custody of the three children in this protection application since their mother's death. She has in all respects been acting as a parent and guardian to these children. She wishes to permanently care for all of them and does not want the children to be separated or removed from her care.

[31] The father of the two younger children wishes to permanently care for the two younger children only. At this time, the society's position regarding the eventual long-term plan for these children remains unclear. These conflicting positions may ultimately lead to a contested hearing and certainly the motion on August 16, 2019 will likely be contested.

[32] The aunt lives with the children, her partner, and the children's maternal grandmother in rental accommodations. She is caring for her sister's three children with the help of the maternal grandmother on a very modest salary of approximately $41,000.00.

[33] The aunt cannot afford her own lawyer. It is clear to the court that she has not been able to adequately represent herself in these child protection proceedings, given the legal complexity of the proceedings, not to mention the trauma and shock of her sister's brutal murder and suddenly becoming the caregiver for three young children.

[34] Both the father and the society have experienced and very competent counsel.

[35] As Justice Sherr noted in Children's Aid Society of Toronto v. S.A. and M.M., 2017 ONCJ 553, at paragraph 48 of his decision:

"Even in the most straight-forward cases, child protection matters can be very difficult to navigate. It is a complicated area of the law."

[36] In my view, L.M. needs counsel and she has a constitutional right to counsel in this proceeding. This court has the 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 (the "J.G." case).

[37] In J.G., 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, per Justice Sharman S. Bondy; and Family and Children's Services of Guelph and Wellington County v. Kelly F. and Gavin F., per Justice Jane E. Caspers.

[38] More recently, the decision of Justice Alex Finlayson in Catholic Children's Aid Society v. M.C., 2018 CarswellOnt 15226, 2016 ONCJ 619, extensively canvasses this court's jurisdiction to appoint state funded counsel in child protection cases and the factors that it should consider.

[39] In New Brunswick (Minister of Health and Community Services) v. J.G., 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;

(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.

[40] All four criteria appear to exist in the circumstances of this case, although it is unclear what if any, further appeals may be possible for L.M.

[41] However, before I make this determination, and consider appointing state funded counsel for the respondent maternal aunt in this proceeding, I invite representatives from Legal Aid Ontario and the Attorney General for Ontario to make submissions on this issue.

[42] Therefore, this hearing is adjourned to August 16, 2019 at 11:00 a.m. in courtroom 10, so that representatives from Legal Aid Ontario and the Attorney General of Ontario, if necessary, can attend to make submissions regarding the court's application to appoint publicly funded counsel for the respondent aunt in this proceeding.

[43] Court staff is directed to immediately deliver a copy of this endorsement to the General Counsel for Legal Aid Ontario and the Attorney General for Ontario.

Dated: July 24, 2019

Justice Sheilagh O'Connell