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: 2020-10-27

Court File No.: Brampton 20108/16

Parties

Between:

The Children's Aid Society of Peel Applicant

— And —

M.H. and S.H.

Respondents

Before the Court

Before: Justice Philip J. Clay

Heard on: October 26, 2020

Reasons for decision on: Pre-trial motions

Counsel

• Ms. A. Rozario — counsel for the Applicant Society
• Ms. V. Younger — counsel for the Respondent mother
• Ms. O. B. Vincents — counsel for the Respondent father

Decision

CLAY J.:

Pre-Trial Motions

[1] The Society brought an Amended Protection Application with respect to the child N. and a Protection Application with respect to the child H. N. had been brought to a place of safety from the care of his parents and H. was taken to a place of safety immediately after her birth. Prior to the trial on these Applications there were pre-trial motions.

[2] The Society brought a motion for a ruling that certain documents should not be admitted into this trial based upon the principle of res judicata.

[3] The Respondent father S.H. brought a motion for a ruling that:

a) The court should not rely on the previous decisions of the courts between the parties as evidence of past parenting; and

b) The said R. shall be permitted to adduce evidence with regard to the parenting of his children M. and Am. and the cause of death of M.

Brief Background

[4] The parent's daughter M. died on February 25, 2011 when she stopped breathing while in the care of the mother. An autopsy was performed and the evidence of the forensic pathologists Dr. Pollanen and Dr. Zlotkin was admitted at the parent's criminal trial for manslaughter failing to provide the necessaries of life. The parents were convicted by a jury in October 2014 and the mother was sentenced to two years and the father two years less a day (the mother was pregnant at the time and asked for time in the federal system). Both were released on bail and they appealed their criminal conviction.

[5] A child protection trial was held before Justice J. Bovard in 2014 and 2015 and on December 31, 2015 he released his decision placing the siblings of M. being Am and Az in what is now referred to as the extended care of the Society without access. That decision was upheld by Justice McSweeney on appeal to the SCJ and by the Ontario Court of Appeal.

[6] The children's sibling As was apprehended at birth when the mother was in custody. After a 27 day trial Justice L. Rogers released a decision that placed As in the extended care of the Society. It is noted that the protection finding with respect to As was largely based on the evidence of the parent's care of the child N. as N. had lived with the parents until he was taken to a place of safety and to Sick Kids hospital.

[7] The decision of the Court of Appeal on the criminal appeal was released on September 29, 2020. The conviction was quashed and a new trial ordered. The reasons for decision were provided to the court.

[8] The court noted at paragraph 6 that:

[6] At the appellants' joint trial, the Crown advanced its case that the appellants committed unlawful act manslaughter by failing to provide the deceased with the necessaries of life on two discrete bases:

i. that they failed to provide her with adequate food and/or a balanced diet of protein and vitamins; and

ii. that they failed to provide her with medical attention by failing to follow up on a referral to a pediatrician 11 months before her death.

[9] The court found that there was not sufficient evidence to put to a jury on the second ground and admitted fresh evidence in order to review the first ground. The court wrote in paragraphs 7 to 12:

[7] At the post-mortem, the examining forensic pathologist, Dr. Pollanen, found evidence that the deceased suffered from malnutrition due to inadequate feeding and a diet deficient in protein and vitamins. She had rickets from Vitamin D deficiency. She had megaloblastic anemia, a blood disorder caused by Vitamin B12 deficiency.

[8] Dr. Pollanen testified that the deceased's lung histology displayed signs of both chronic and recent asthma. Her breathing problems the night she died were consistent with an asthma attack. Despite the absence of signs of a fatal asthma attack in her lungs, Dr. Pollanen concluded that the deceased suffered an asthma attack while in a critical state of illness due to protein malnutrition and vitamin deficiency. This combination led to lack of oxygen, shock and death.

[9] Dr. Stanley Zlotkin, a pediatric nutritionist, gave evidence that the deceased's protein and vitamin deficiencies were due to an unbalanced diet of longstanding which had resulted in stunted growth.

[10] At trial, Dr. Pollanen gave evidence that the deceased died of a combination of asthma and malnutrition which led to a failure of blood circulation and death. An asthma attack caused low blood oxygen levels. Her protein malnutrition and vitamin deficiencies caused a failure of blood circulation and a failure to oxygenate the brain. Dr. Pollanen could not separate the asthma attack and the malnutrition causally. Both led to oxygen deficiency.

[11] Dr. Zlotkin did not have all the information he required to make a nutritional assessment according to his usual practice. However, he agreed with Dr. Pollanen's conclusion that when she died, the deceased suffered from severe malnutrition, combined with Vitamin D deficiency rickets, megaloblastic anemia and protein malnutrition. The anemia was attributable to Vitamin B12 deficiency, a rarity among children.

[12] Dr. Zlotkin also agreed with Dr. Pollanen's conclusion of protein malnutrition. This can occur, he said, after a prolonged period of diet with inadequate protein. He attributed the deceased's growth history to inadequate nutrition due to insufficient feeding. This process of malnutrition had begun when the deceased was between four and seven months old and continued until she died at 27 months.

[10] The evidence of Dr. Pollanen was admitted by Justice Bovard in the child protection trial for Am and Az following M's death. Dr. Zlotkin testified at that trial. In preparing for the criminal appeal the parents criminal lawyer obtained opinions from two other experts who took issue with the conclusions of Drs. Pollanen and Zlotkin. At para. 17 to 23 of the decision the court set out these opinions.

[17] Dr. Michael Shkrum is a forensic pathologist. He disagrees with Dr. Pollanen's opinion about the cause of the deceased's death. In his view, the deceased died of heart failure due to megaloblastic anemia and Vitamin D deficiency. The deceased had an enlarged heart. This could have resulted from her Vitamin D deficiency rickets and/or her anemia. This predisposed her to heart failure. Vitamin D deficiency rickets is associated with sudden unexpected deaths in children, as well as with heart disease.

[18] Dr. Shkrum disagrees with Dr. Pollanen's conclusions that the deceased died from complications of an asthma attack. There were no characteristic signs of acute asthma at autopsy and no definitive evidence that the deceased died of an acute asthma attack. Dr. Shkrum agrees with Dr. Pollanen that the deceased had Vitamin D deficiency rickets and megaloblastic anemia due to a deficiency in Vitamin B12.

[19] Dr. Shkrum also found no compelling evidence that the deceased suffered from protein malnutrition as was described by Drs. Pollanen and Zlotkin. The deceased's weight was low for her age, but appropriate for her height. She could not be described as "wasted", nor was she at increased risk of sudden death from acute malnutrition or starvation.

[20] Dr. Shkrum also questions whether diabetes could be definitively ruled out as a contributing cause of death. However, he does acknowledge that there was no conclusive evidence of diabetes or of ketoacidosis, a potentially fatal complication of diabetes.

[21] In his response to Dr. Shkrum's report, Dr. Pollanen agrees that the deceased did not die during an acute asthma attack. He no longer adheres to his evidence at trial that asthma played a role in the deceased's death. He now attributes her death to malnutrition. He does not agree with Dr. Shkrum about congestive heart failure, but accepts that Vitamin D deficiency can cause significant functional impairment, such as cardiac output dysfunction and arrythmia.

The Opinion of Dr. Miller

[22] Dr. Miller concludes that the deceased had severe Vitamin D deficiency rickets. This is a systemic disease affecting not only bones, but also the heart, muscles and immune system. It could also be associated with the deceased's stunted growth and delayed development, signs Dr. Pollanen considered indicative of protein malnutrition. In Dr. Miller's opinion, Dr. Pollanen underestimated the potential severity of Vitamin D deficiency rickets.

[23] In his response, Dr. Zlotkin did not resile from his opinion that the deceased had a serious form of protein malnutrition. Although, as Dr. Shkrum concluded, the deceased was not acutely malnourished, but she was severely chronically malnourished for both her weight and height. Although not at risk of sudden death from acute malnutrition, she was at risk of sudden death from protein-energy malnutrition.

[11] The Court of Appeal went on to state at paragraphs 34 and 35 that:

[34] The proposed fresh evidence also assigns a different significance to the Vitamin D deficiency of the deceased as a contributing factor in her death. Dr. Pollanen now agrees that, in giving evidence at trial, he had not considered the deleterious functional effects of this deficiency.

[35] Although the jury could have concluded that reasonable parents would be aware of the absence of protein in their child's diet and the risk that it posed, a jury could conclude that a reasonable parent may not realize that their child's diet lacked adequate vitamins D and B12.

[12] The Court of Appeal quashed the conviction and ordered a new trial.

The Society's Position

[13] The Society consents to the admission into evidence in this court the decision of the Court of Appeal in the criminal matter. It does not oppose the introduction into evidence in this court the medical reports of Dr. Shkrum and Dr. Miller.

[14] The Society requests that all of the decisions in the child protection courts concerning the siblings of N. and As should be admitted into evidence as evidence of past parenting pursuant to s. 93(1) of the CYFSA.

[15] Ms. Rozario said that this court could now note as a fact that the parents have not been convicted of a criminal offence in the death of M. and that M. did not die of an asthma attack while in the parent's care. She stated that the criminal appeal decision does not really present any new evidence that impacts upon the child protection findings made regarding Am and Az at trial and upheld on appeal. She said the Court of Appeal decision does not speak to the parenting of the children Am and M.

[16] Ms. Rozario stated that the criminal appeal decision dealt with the pathway a jury could follow in considering criminal liability upon the evidence before it. While it was true that the parents chose not to give evidence at the trial before Justice Bovard they did file extensive fresh evidence in the appeal before Justice L. McSweeney. It is true that although Justice Bovard referred to the manslaughter conviction, his decision clearly showed that he made factual findings that have not been displaced by the Court of Appeal. The evidence accepted by Justice Bovard was that M. was malnourished and had rickets from Vitamin D deficiency.

[17] Ms. Rozario stated the parents have overstated the reliance of the child protection decisions on the fact of a criminal conviction. She also noted that the Court of Appeal did not find that the parents were innocent of wrongdoing. The fresh evidence that was admitted still finds that M. died from complications of malnutrition. The fresh evidence said that protein malnourishment might not have been the proximate cause of death but that the effect of Vitamin D deficiency-Rickets-may have been underestimated by Dr. Pollanen. The Court of Appeal simply determined that the jury might have come to a different conclusion with respect to criminal liability had the emphasis been on vitamin deficiency instead of protein deficiency. It should be noted that as it was a jury trial the reasons for the conviction are not known. Justice Bovard refused to admit the reasons for sentence. Ms. Rozario said that there was no undue weight placed upon the parent's criminal culpability.

[18] Ms. Rozario said that the findings by the Court of Appeal should be considered in conjunction with the evidentiary findings made by Justice Bovard and upheld on appeal. Society counsel emphasized that this was not a case where the parent's position was based only upon not being aware of the risks of vitamin deficiencies. Dr. Pollanen and Dr. Zlotkin both gave evidence of severe malnutrition and a diet deficient in both protein and vitamins. The parents stated in their appeal before Justice McSweeney that they had done nothing wrong. She found that that the evidence was clear that Am also had severe vitamin deficiency when she was examined following M's death. She also found that the parents had failed to follow medical advice regarding dietary supplements.

[19] The Court of Appeal in the child protection appeal stated that the parents continued to believe that they fed their children sufficiently so they would not have malnutrition and vitamin deficiencies. The evidence showed otherwise.

[20] It was clear that the child protection findings made by Justice Rogers in the As. case were mostly based upon extensive evidence regarding the parenting of N. N. was in the parents care before being taken to the SCAN program at Sick Kids. Most of the 27-day trial was taken up with the Society's, and the parent's, evidence regarding N's medical condition and the parents parenting of him. N. was also severely malnourished when he came into care. The trial evidence was heard in the fall of 2019 and the decision rendered on June 17, 2020.

[21] The Society sought to rely upon the decision of Justice Rogers.

[22] In accordance with the court's request the Society filed a chart of the documentary evidence filed by the father in his document brief which it sought to exclude under the principles of res judicata. Ms. Rozario took the court through each tab in Volume 1 of the brief and explained how the documentary evidence concerning to the care of N. had already been fully addressed as parenting evidence in the As case before Justice Rogers. Witnesses had been called and they had been subject to cross-examination. To the extent that documents in Volume 1 dealt with H. who was never in the parents care or N., while in foster care, the Society did not object to their admission as they were not res judicata.

[23] Ms. Rozario objected to all of the documents in Volume 2 which dealt with the care of Am and N. prior to M's death. All of that evidence had, or could have been, before Justice Bovard (there were some documents such as newspaper articles that were not admissible on other grounds.)

[24] The Society took no issue with the documents in Volume 3 of the father's document brief as they related to a time when both N and H were in care and those issues have not been before a court before.

[25] Ms. Rozario then addressed the mother's document brief. She said that tabs 1-26 should be excluded as being res judicata but that Tabs 27-33 were proper as they did addressed issues that had not been before a trial court. (though there were incomplete notes in tabs 30 and 31 that need to be removed unless the full note is provided and that note is about the time when N and H were in foster care).

The Parent's Position

[26] The parents took the same position on the motions before the court. They both sought the exclusion of all past parenting evidence by way of court decisions. They both sought to be able to give evidence on the care of Am. M. and N.

[27] Mr. Vincents noted the case law that stated that the res judicata principle is subject to exceptions. One of exceptions is for new evidence. He said that he did not want a re-trial of the As. and Az matter (which concerned evidence about As and M.) or the As. trial (which concerned evidence about N.) He stated that he was not seeking to call all of the witnesses again.

[28] Mr. Vincents main argument was that the Court of Appeal decision undermined the reliability of al of the evidence given in the previous two child protection trials and the two appeals on the first trial. He said that in the first trial the court fully accepted and relied upon the opinions of Drs. Pollanen and Zlotkin. Dr. Pollanen had now conceded in a report filed with the Court of Appeal that M. did not die of an asthma attack. While Dr. Pollanen continued to believe that the child was severely malnourished there was now evidence that M died of a vitamin D deficiency-Rickets.

[29] Mr. Vincents submitted that Justice Bovard relied heavily on the doctors who gave expert opinions before him and those opinions had been amended and challenged. He also said that Justice Bovard, and the two appeal courts, and to a much lesser extent Justice Rogers, had relied upon the fact that the parents were convicted of manslaughter in M's death as a significant fact as two why they could not parent Am, Az. and As.

[30] Mr. Vincents state that this new evidence as to the cause of M's death meant that the parents have to have an opportunity to provide evidence as to their parenting of Am. M. and N. The documents in their brief would not be tendered as exhibits by their authors but should be available to the court in following the narrative of the parent's evidence.

[31] Mr. Vincents said that if the parents are not able to provide evidence of their parenting of N. then the trial judge making a decision concerning whether he is need of protection will not have the benefit of any direct evidence about him. Counsel stated that reading the decision of Justice Rogers and taking note of her factual findings on their parenting is not the same as hearing from the parents directly.

[32] Mr. Vincents said that the court always retained discretion to hear evidence that might have been heard in an earlier case. He relied upon dictum on issue estoppel, a related principle, by the Court of Appeal in Minott v. O'Shanter Development Co. (1999) 3686:

… Judicial discretion is required to achieve practical justice without undermining the principles on which issue estoppel is founded. Issue estoppel should apply flexibly where an unyielding application of it would be unfair to a party who is precluded from relitigating an issue.

[33] Justice Rosenburg for the court added:

… courts have refused to apply issue estoppel in the special circumstances that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided being material which could not by reasonable diligence have been adduced in those proceedings.

[34] Mr. Vincents submitted that the new evidence of the proximate cause of death of M was such a special circumstance. He argued that the parents should be able to relitigate their care of the children as "the door is wide open on the cause of death of M". This evidence was not available at the first child protection trial. While it is being admitted in this trial he said that the parents had not been able to give evidence to a court in light of this change in the cause of death.

[35] Ms. Younger for the mother said that the criminal conviction of the parents had "a ripple effect" that extended throughout the child protection proceedings. She said that if the true cause of death had been known at the two trials it might have affected how the parents gave their evidence.

[36] In response the court's questioning neither Mr. Vincents, nor Ms. Younger, could identify how the parents' evidence would be any different. While they did not testify in the first trial they did provide affidavit evidence regarding their care of Am and M. on the appeal. They did testify on the second trial regarding their care of N. Almost all of the exhibits in Volume 1 of their document brief were the same documents upon which evidence was given in the fall of 2019 before Justice Rogers.

[37] The fresh evidence at the Court of Appeal did not go to parenting. It went very specifically to the proximate cause of death. Three of the four experts specifically stated that M. was malnourished- chronically if not acutely. Only Dr. Miller did not hold that view as he thought that the stunted growth and delayed development of M. could be solely related to the complete absence of Vitamin D in the child's body and he felt that the deleterious effect of Rickets was underestimated originally.

[38] There was a considerable amount of evidence at both child protection trials not only about protein malnourishment but also vitamin deficiencies. The parents have failed to show that there is any evidence that they would give that would be different from the evidence previously given.

[39] The Court of Appeal found that a different cause of death should be put to the jury as it may effect their determination of criminal liability. The appeal court was only dealing with the evidence concerning what the parents knew about M's condition. There was no evidence before the criminal court as to the condition of Am, M's older sibling. At this point we now have the factual findings of Justice Rogers that the parents fifth child N. was severely malnourished when he was taken to Sick Kids in 2018. Notwithstanding the death of M. and the malnourishment of Am and N the parents steadfastly hold to the view that there is nothing wrong with their parenting. At the trial before Justice Rogers they stated that the severe malnourishment of N. noted by physicians at Sick Kids was not present when N. came into the care of the Society just days before.

Analysis

[40] The Society's motion was to include past parenting evidence by way of the reported decisions and exclude further evidence on the issues upon which factual findings were made by the prior courts. The parent's motion was to exclude the prior court decisions as evidence of past parenting and allow the parents to give evidence as to their parenting of Am, M and N. These motions are so interwoven that I will address them together.

[41] To some degree I have blended my analysis in with the submissions on each point raised. For the reasons stated above I find that the principle of res judicata does apply to any evidence as to the care of the children M, Am. and N. by the parents.

[42] I find that the fresh evidence as to the likely cause of death would not have changed the findings made by Justice Bovard, upheld on appeal and Justice Rogers. While it is true that Justice Bovard did fully accept Dr. Pollanen's expert report, as it then was, almost all of the evidence upon which he relied for his child protection findings with respect to Am and Az is still reliable. There were a number of medical issues referred to in Justice Bovard's report. Asthma as a cause of death and the extent to which malnourishment as opposed to vitamin deficiency was the proximate cause of death are the only two medical findings that are changed by the fresh evidence. These are medical determinations made years later and the four expert doctors who have provided reports do not totally agree even at this point. The parents care of M. Am and N was fully explored in the prior two child protection trials. I find that res judicata applies to that evidence. I rule that the parents are estopped from calling evidence as to their care of Am., M. and N.

Order

1. The trial decision of Justice J. Bovard, the appeal decision of Justice L. McSweeney and the decision of the Court of Appeal with respect to the children Am. and Az. shall be admitted as evidence of past parenting in this proceeding pursuant to s. 93(1) of the CYFSA.

2. The trial decision of Justice L. Rogers with respect to the child As. shall be admitted as evidence of past parenting pursuant to s. 93(1) of the CYFSA.

3. The decision of the Court of Appeal quashing the conviction of the Respondents for manslaughter and ordering a new trial shall be admitted into evidence in this proceeding.

4. The expert reports of Dr. Shkrum and Dr. Miller may be admitted as evidence in this proceedings as to the cause of death of the child M.

5. No evidence shall be called as to the Respondents parenting of the children Am. M. and N. in this proceeding and any documents referring to that parenting in the document briefs filed shall not be referred to.

6. The Respondent M.H. may call as a witness Dr. P. Dwight on Tuesday November 10 at 11 a.m. if she provides to counsel and the court a bound paper document containing all of Dr. Dwights medical records concerning the children N and H. by November 6, 2020.

7. This trial will continue to be held by Zoom subject to the conditions set out in my order of October 21/20. The Society shall have the child protection worker Ms. V. Awuni ready for cross-examination upon her affidavit when the trial begins on October 28 at 9:30 a.m.

Justice Philip J. Clay