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.

(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.

(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.

Ontario Court of Justice

Date: April 9, 2021 Court File No.: C30224/19

BETWEEN:

Jewish Family and Child Service of Greater Toronto, Applicant,

— AND —

N.D. (Respondent mother) D.J.L. (Respondent father – deceased) Eel Ground First Nation

Justice Roselyn Zisman

Heard on: April 6, 2021 Reasons for Judgment released on: April 9, 2021

Counsel: Haley Gaber- Katz, counsel for the applicant society J. Stanley Jenkins, counsel for Legal Aid Ontario Catharine Ma, counsel for the Ministry of the Attorney General N.D., on her own behalf No appearance by or on behalf of Eel Ground First Nation even though served with notice

Zisman, J.:

Introduction

[1] This is a motion by the Jewish Family and Child Service of Greater Toronto (JFCS or the society) to appoint amicus curiae to assist in this outstanding child protection proceeding to address concerns about this matter proceeding with the mother being self-represented.

[2] The child protection proceeding concerns SB who is 2 years old.

[3] The mother contacted the society to seek assistance in caring for her daughter as she needed time to address her physical and mental health issues with a change of medications and/or enter a rehabilitation facility. Due to COVID, she had no other supports.

[4] On May 7, 2020 the child was placed in the care of the society pursuant to a Temporary Care Agreement (TCA) for 2 weeks. On May 20, the mother then agreed to a further 2 week extension. The society advised the mother that they would be seeking to remain involved after the child was returned.

[5] On May 21, the mother revoked the TCA and indicated that she wished her daughter returned to her home by May 28, 2020.

[6] On May 27, 2020, workers from JFCS attended at the mother’s home and noted that the condition of the home was unsafe for a child and therefore that the child could not be returned.

[7] As it was unclear if the mother would agree to a further extension of the TCA, the child was brought to a place of safety on May 27, 2020 and has remained in the care of the society since that date.

[8] A Protection Application was issued seeking an order that the child be placed in the care of the society for 3 months to enable the mother to resolve the unsafe condition of the home and to demonstrate that her emotional health had stabilized.

[9] On June 1, 2020, the society’s place of safety motion was before the court. The mother had retained Deborah Stewart an experienced child protection counsel. A temporary without prejudice order was made for the child to be placed in the care of the society. A date was set for a temporary care and custody motion to be heard.

[10] On June 16, 2020, a motion by Ms Stewart to be removed as counsel of record was granted.

[11] On June 24, 2020, David Miller, another experienced child protection counsel, confirmed that he had been retained by the mother.

[12] On August 20, 2020, Mr. Miller argued the temporary care and custody motion. An order was made that the child be placed in the care of the society with access by the mother. Concerns were expressed that the mother was not exercising access and was experiencing ongoing mental health issues.

[13] On October 19, 2020 the matter was again in court for a case conference. The mother continued to have difficulties working with the society. The mother was not exercising consistent access. The court was advised that the mother had been briefly hospitalized due to an attempted suicide.

[14] On November 23, 2020 the society’s motions for production of hospital records, police reports and the mother’s doctors’ notes were granted.

[15] On January 8, 2021, the society and the court was served with a Notice of Change or Representation indicating that the mother would now be representing herself.

[16] On January 8 and again on March 2, 2021 the mother was urged to obtain legal counsel by the court. The mother indicated that she wished to represent herself. She stated that her lawyers did not listen to her and wasted her time.

[17] Both the family service worker and the mother’s community support person encouraged the mother to obtain legal representation.

[18] On March 5, 2021 the society further amended its Protection Application to seek an order placing the child in the extended care of the society with no access to the mother, for the purpose of adoption.

[19] The child has been in the care of the society in excess of the statutory guidelines. The child was initially in care shortly after her birth for 70 days and then again since May 20, 2019.

[20] The matter is scheduled for the assignment court for April 14 and to proceed in the June trial sittings.

Position of the parties

[21] It is the position of the society that there is a concern that the mother has been unable to maintain a lawyer-client relationship with two experienced child protection counsel. The appointment of an amicus would assist the court in moving this case forward to obtain permanency for this child, ensure that the mother’s plan is properly presented and the flaws in the society plan are explored and that the trial is focused on relevant issues.

[22] Counsel for the Ministry of the Attorney General takes no position as to whether amicus should be appointed. However, counsel wishes to ensure that if amicus is appointed that counsel will be compensated at the legal aid rate.

[23] Mr. Jenkins, counsel for Legal Aid Ontario, also took no position as to whether amicus should be appointed. He provided the court with the names of 3 counsel who are on the roster to act as animus in these matters. He also assured the court that counsel are agreeable to being compensated at the legal aid rate.

[24] The mother advised that she had now retained counsel. Helen McCullough participated in the zoom attendance. She confirmed that she had met with the mother and reviewed the court documents. She expressed that she was not prepared to represent the mother if amicus was also appointed.

[25] Mr. Jenkins confirmed that the mother had been issued a new legal aid certificate. He further confirmed that even if amicus was appointed, counsel who acknowledged the legal aid certificate would be compensated. He indicated that no counsel had yet requested authorization to proceed to trial. Counsel would need to seek such authorization but in view of the serious nature of the relief being requested by the society it was highly likely the certificate for counsel to represent the mother at trial would be granted.

[26] Mr. Jenkins reaffirmed that there were cases where amicus simply sat at the back of the courtroom and only became involved if the party’s relationship with their counsel broke down. In these cases, amicus was still compensated.

[27] Despite these assurances, Ms McCullough would still not commit to representing the mother.

[28] I therefore must proceed on the basis that at the present time the mother is unrepresented.

Applicable legal principles

[29] The precedent for governing the appointment of amicus is the decision of the Supreme Court of Canada in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (“CLA”).

[30] It is common ground that the Ontario Court of Justice has the implied jurisdiction to appoint amicus to assist the court. It extends to those family law matters in which the appointment is essential for the court to adequately discharge its judicial functions: CLA, at para. 112.

[31] In the case of Morwald-Benevides v. Benevides, 2019 ONCA 1023 [1], the court set out the considerations governing the appointment of amicus in private family cases. The court stressed that different considerations arose in dealing with amicus in child protection matters. However, the considerations outlined by the court in paragraphs 27 to 40 (as paraphrased below) are instructive:

1. The assistance of amicus must be essential to the adequate discharge of the judicial functions in the case: CLA, at para. 47. The stakes must be high enough to warrant amicus. This is a circumstantial determination within the trial judge’s discretion.
2. A party has the right to self-represent: CLA, at para. 51. However, the trial judge is responsible for ensuring that the trial progresses reasonably. There are situations in which the appointment of amicus might be warranted, such as when the self-represented party is ungovernable or contumelious, when the party refuses to participate or disrupts trial proceedings, or when the party is adamant about conducting the case personally but is hopelessly incompetent to do so, risking real injustice: see e.g. R. v. Imona-Russel, 2019 ONCA 252, 145 O.R. (3d) 197; Zomparelli v. Conforti, 2018 ONSC 610.
3. While amicus may assist in the presentation of evidence, amicus cannot control a party’s litigation strategy, and, because amicus does not represent a party, the party may not discharge amicus: Imona-RusseI, at para. 67.
4. The authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances: CLA, at para. 47. And see C.C.O. v. J.J.V., 2019 ABCA 292, 91 Alta. L.R. (6th) 237, at para. 50. This is in part a recognition of the financial exigencies, which is ultimately a political question under our separation of powers doctrine, as CLA noted at paras. 27-31, 83.
5. A trial judge should consider whether a Legal Aid certificate would be available and whether the matter should be adjourned to permit a party to apply for it. A trial judge should also consider whether other resources could be gathered together to suffice. For example, where the interests of children are involved, the judge may request the participation of the Office of the Children’s Lawyer under ss. 89(3.1) and 112 of the Courts of Justice Act. There are several modalities of participation available including, most recently, Voice of the Child reports. However, the consideration of any such services would need to be expedited to avoid delay, particularly in a case that involves children.
6. Self-represented parties are increasingly routine in family law cases. The system recognizes this fact and does provide some resources. That one or both parties are self-represented is not a sufficient reason to appoint amicus, in itself, nor is it sufficient based on the idea that since one party is represented, amicus is necessary to level the playing field. As is sometimes noted in criminal cases, a party is entitled to a fair trial, not a perfect trial: R. v. G. (S.G.), [1997] 2 S.C.R. 716, at para. 101; R. v. Harrer, [1995] 3 S.C.R. 562, at para. 45.
7. The trial judge must consider whether he or she can personally provide sufficient guidance to an unrepresented party in the circumstances of the case to permit a fair and orderly trial without the assistance of amicus, even if the party’s case would not be presented quite as effectively as it would be by counsel: Imona-Russel, at para. 69. It is only in rare cases that the assistance provided by the trial judge will be insufficient to ensure trial fairness. Only then might the appointment of amicus be considered.
8. It will sometimes, though very rarely, be necessary for amicus to assume duties approaching the role of counsel to a party in a family case. While the general role of amicus is to assist the court, the specific duties of amicus may vary. This is a delicate circumstantial question. If such an appointment is to be made and the scope of amicus’ duties mirror the duties of traditional counsel, care must be taken to address the issue of privilege, as in Imona-Russel, at para. 89.
9. The order appointing amicus must be clear, detailed and precise in specifying the scope of amicus’s duties. It should not be open-ended in its expression or operation. The activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays well within the defined limits.
10. Ideally the need for amicus can be identified and considered at the pre-trial case management conference, but sometimes the need only becomes evident at trial. A case management judge or a trial judge faced with a trial that might require the appointment of amicus should prepare an order detailing the expected role and work of amicus. Amicus could, for example, be asked to lead some evidence, cross-examine a witness, or make submissions on specific issues. The goal should be to use the services of amicus only where and to the extent necessary. The order would be a work in progress and would be open to change as circumstances demand, with changes made formally on the record.

[32] It is important to emphasise that the Ontario Court of Appeal in Morwald-Benevides v. Benevides was addressing the appointment of amicus in a private family law dispute.

[33] Previous court decisions have recognizing that section 7 of the Charter, the right to security of person, includes the protection of psychological integrity. The court recognised that this right is engaged where a child protection society seeks to override and restrict a parent’s role in the care of their child: New Brunswick (Minister of Health and Community Services), [1999] 3 SCR 46 at para. 76.

[34] Several cases have appointed amicus in child protection proceedings recognizing the highly complex nature of child protection proceedings and the serious nature of the relief that could result in the permanent removal of a child from their parent: Children's Aid Society of Toronto v. S.A., 2017 ONCJ 553 and Children's Aid Society of Toronto v. A.T., 2018 ONCJ 720.

[35] Although these cases predate the Ontario Court of Appeal decision in Morwald-Benevides v. Benevides, the concerns with respect to a parent representing themselves in child protection proceedings are applicable.

[36] The analogy of a parent representing themselves in a child protection proceeding is similar to an accused representing themselves in a criminal matter where the Crown is always well represented and the accused may face a loss of liberty. In the child protection proceedings, the society is also always well represented and a parent may face the loss of a child.

Application of the legal principles to this case

[37] I find the following factors favour the appointment of an amicus in this case.

1. This is a complex child protection proceeding. The society will be presenting evidence from about 15 witnesses and relying on medical, hospital and police records.
2. There will be evidentiary issues that arise with respect to the admissibility of these medical and business records.
3. The society is seeking the most serious order available namely, the child being placed in the permanent care of the society with no access to the mother for the purpose of adoption.
4. Faced with this prospect and being required to listen to evidence regarding painful events in her life may cause the mother to become emotional and unfocused. As the case management judge, I have had the opportunity to see the mother in his state.
5. The mother suffers from both physical and mental health issues. The full extent of the mother’s conditions is not currently known but will be adduced from the various witnesses and the medical and hospital reports that the society intended to rely upon.
6. The mother’s lawyer-client relationship has already broken down twice. If amicus is appointed the mother will not be able to terminate the services of amicus.
7. The mother is not aware of the case law with respect to issues regarding a finding of need or protection, least restrictive alternatives and the law regarding contact when a child is placed in extended care. Without counsel, she will not be able to effectively cross-examine the society workers. The court will be left without the necessary evidence to properly assess the strength and weaknesses of the society’s case.
8. Although the court can provide some assistance to the mother, some of these issues will require the society witnesses to be cross-examined and the court should not be put in the position of cross-examining witnesses.
9. The appointment of amicus ensure that the mother’s plan is properly presented to the court in an orderly fashion and amicus will be able to cross-examine witnesses to ensure that the court will have a full understanding of the evidence and be able to make the decision that is in the child’s best interests.

[38] The court appreciates that the appointment of amicus should be used sparingly and only be done in exceptional circumstances. However, I find that the appointment of amicus is warranted in child protection proceedings in cases where the society is requesting an order that permanently severs the parent child relationship and there is a concern that a self-represented parent will not have the ability to properly present their case.

[39] I have also considered that it is possible that Ms McCullough agrees to represent the mother or that she retains other counsel. However, I find that amicus should be appointed to ensure that if there is a break-down in the mother’s relationship with her new counsel, that the trial does not become delayed, unfocused or chaotic. Amicus is necessary to ensure that the evidence that the court requires to determine this child’s best interests is before the court.

Order

[40] There will be an order as follows:

1. Tammy Law shall be appointed as amicus to assist the court. Ms Law shall not take instructions from the mother but shall consider her views and preferences.
2. Ms Law shall be provided with complete file disclosure within 14 days. Ms Law shall be entitled to ongoing file disclosure to include the trial record and all trial affidavits and documents.
3. Ms Law shall be entitled to fully participate in the trial to include making opening statements, summons and examine witnesses who will support the plan being put forward by amicus in behalf of the mother and cross-examine all witnesses called by the society and make any evidentiary objections.
4. In the event that the mother retains counsel, Ms Law shall only participate in the trial as directed by the trial judge or in the event there is a break-down in the relationship between the mother and trial counsel, she shall assume carriage of the trial as amicus.
5. This matter is adjourned to May 5, 2021 for a settlement conference and preliminary trial management hearing. Ms Law shall participate in this attendance. If she is not available, counsel are to contact the trial coordinator to arrange another date.
6. The terms of Ms. Law’s appointment can be further defined or clarified after hearing submissions from all parties on the return date.

[41] I wish to thank LAO counsel Mr. Jenkins and AG counsel Ms Ma for their helpful assistance in this matter. A copy of this decision should be sent to both counsel.

Released: April 9, 2021 Signed: Justice Roselyn Zisman

[1] The appeal was technically moot as the underlying family law case had been resolved otherwise the court would have allowed the appeal. The trial judge appointed 2 counsel for parties who were self-represented. The court clearly held that just because a litigant is self-represented is not a sufficient basis for the appointment of amicus.