WARNING
The court hearing this matter directs that the following notice should 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: September 29, 2025
Court File No.: Brantford FO-22-00000084-0001
Between:
Child and Family Services of Grand Erie Applicant,
— AND —
Ka.R. (deceased), T.H. (service dispensed with), A.M., K.R., Algonquins of Ontario Consultation Office (noted in default) Respondents
Before: Justice K.A. Baker
Heard on: September 25, 2025
Reasons for Judgment released on: September 29, 2025
Counsel
- Shera Luu — counsel for the applicant society
- Neshee Richardson — counsel for the respondent, A.M.
- Elizabeth Porter — counsel for the respondent K.R.
- Eliza Montour — counsel for the Office of the Children's Lawyer, legal representative for the children
Decision
BAKER J.:
The Motion for Mistrial
[1] This was an application for mistrial brought by the Respondent father and joined in by OCL.
[2] The trial in question is a Status Review application involving two children, namely J.M., born […], 2011, and now aged 14 years and Ar.M., born […], 2015 and now aged 10 years. The Applicant agency is seeking an Order placing Ar.M. in the custody of the maternal grandmother, K.R. and an Order for extended care for J.M. The Respondent father and OCL seek an Order returning both children to the father's care. The mother of J.M. is T.H. and she has not participated in the litigation. Service upon her was dispensed with. The mother of Ar.M. was Ka.R. and she is deceased.
[3] The trial of this matter commenced on March 17, 2025, and continued on March 18, 19, 20, 2025. During this time both the agency and the grandmother completed their cases. The father opened his case on the fourth day of trial. During cross examination of the father, the OCL raised, for the first time, the suggestion that the child J.M. is Indigenous and had a specific community, being Mi'kmaq. This necessitated a 'trial within a trial' to determine if the prior order finding that J.M. was not Indigenous and had no Indigenous community should be set aside. On March 28, 2025, the court found that J.M. is not Indigenous. Unfortunately, by that time all the days set aside for trial were expended, thus requiring an adjournment of the trial to May 8, 2025.
[4] Two days prior to the return date, on May 6, 2025, the agency notified all parties that it had commenced an investigation based on new information. This constituted an approximately 7-week delay from when the agency first received notice that the grandmother had contacted police saying the child Ar.M. had made a disclosure. All parties agreed the trial should be adjourned to await the outcome of the investigation.
[5] There were various other court appearances to manage the matter. On Thursday July 24, 2025, the father filed his Notice of Motion for mistrial, returnable on Monday July 28, 2025, which was an previously scheduled date for case management. Shortly thereafter on August 5, 2025 the father filed an amended Notice of Motion, renewing his request for mistrial and including a claim for personal costs against the Applicant's solicitor of record. Extensive reference to the claim for personal costs was made in the father's factum and supported in the OCL factum.
[6] The court indicated at the outset of this hearing that it would not entertain costs submissions of any kind prior to determining the motion.
Grounds for Mistrial
[7] The father says the trial has become fatally compromised because the agency did not disclose the fact of the new investigation when it was commenced on the second day of trial (March 18, 2025). The OCL advances additional reasons to support the mistrial. It says that:
The children's Charter rights have been compromised in various ways by the conduct of the agency. For example, it says that the child Ar.M. was not told that she would be speaking with a police officer when the police interview took place. She was then denied a particular visit with family members during the course of the investigation.
The document disclosure that was provided by the agency was provided sequentially and in a disorganized fashion. It was also redacted in places.
The agency failed to produce police records about the investigation.
The children have expressed a view and preference to have a new trial.
There may be further disclosure that has not been produced.
[8] The agency and the grandmother say that any prejudice to the father from the failure to promptly disclose can be remedied by recalling the investigating worker and the maternal grandmother. (The maternal grandmother provided the information that led to the investigation.) The agency also invites the father and OCL to arrange an examination outside of court if there are concerns for missing documents.
[9] Both the OCL and the father suggested that I have heard evidence that would impact my ability to impartially decide this case. In his factum, the father raised the spectra of a, "potential for bias" by the trial judge. He went on to assert: "A further motion for judicial bias may then be brought by the father given all that has transpired; the knowledge of the trial judge about the treachery of the Society and grandmother and if anything, there may be judgments against the society and the grandmother in terms of their credibility as well".
Legal Framework for Mistrial
[10] In Children's Aid Society of Haldimand and Norfolk v. J.J., C.M. and Six Nations of the Grand River 2021 ONSC 1654, Bale, J reviewed the applicable law with respect to both mistrial and recusal. The general principles arising from the jurisprudence were summarized thusly:
a. Mistrial orders are in the discretion of the trial judge.
b. A mistrial may be declared where a judge that is seized of a matter is satisfied that for any reason, there is a reasonable apprehension that a party will not have a fair trial if the current trial continues (and that a fair trial would be possible if it were to begin afresh before another judge);
c. Mistrials should be ordered only in the clearest of cases, where there has been a 'fatal wounding' of the trial process;
d. Mistrials should be granted only as a last resort where no other curative measure could salvage a just and fair trial; and
e. Parties are entitled to fair trials, but not perfect trials.
[11] Justice Bale went on to note that the interconnectedness of the issue of judicial recusal to a mistrial application. The court then summarized the well-established principles relating to bias and recusal:
a. Bias or prejudice refers to a leaning, inclination, bent of predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.
b. The apprehension must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is, "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude? Would he think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly?
c. Impartiality is the fundamental qualification of a judge and the core attribute of the judiciary. It is key to the judicial process and must be presumed. While the requirement for judicial impartiality is a stringent one, the burden is on the party arguing disqualification to establish that the circumstances justify a finding that the judge must be disqualified.
d. The threshold for a finding of real or perceived bias is high.
[12] As noted in Forsythe v. Tone 2018 ONSC 3598, mistrials are relatively rare and particularly so in family cases. A mistrial should only be granted as a last resort, in the clearest of cases and where no other remedy is available.
[13] Turning to the issue of disclosure: It is trite law that child protection proceedings engage the section 7 Charter rights of parents. Procedural fairness in a child protection case requires that parents be accorded a process that enables them to present their case effectively. Numerous cases have underlined the importance of timely and full disclosure by the agency.
Analysis of Disclosure Issues
[14] My analysis of this matter is as follows: The call was received by the agency from police on March 18, 2025, notifying it of the information provided by the grandmother. This information however was provided to another agency worker (Ms. Brice), and not the instructing agency worker (Ms. Braid).
[15] The investigation itself was not opened until March 24, 2025. It was opened by a third agency worker (Ms. Capp). It is not clear when Ms. Braid received the information about the police call and the subsequent opening of the investigation.
[16] The agency found itself in a difficult situation. It was in the midst of trial. Ms. Braid was in attendance at each day of that trial. The OCL's late breaking identification of an issue with respect to whether J.M. had Indigenous identity required Ms. Braid to undertake various inquiries over the course of the trial. There was an active, joint investigation with police. Police seem to have preferred not to have the investigation compromised by immediate disclosure.
[17] It would have been prudent for the agency to have disclosed the fact of new information as soon as it came to its attention. The agency has conceded it did not do so. This compromised the ability of father's counsel and the OCL to undertake a fulsome cross examination of the Ms. Braid and Ms. Reed.
[18] In argument, father's counsel reminded the court that the agency is an institutional litigant and must be held to a high standard. I agree. But a mistrial is not granted in order to implement a sanction to litigants. The focus of this trial is to determine what disposition is in the best interests of these children. The question is whether the trial can result in a fundamentally fair adjudication.
[19] In my view, any prejudice flowing from the late disclosure can be addressed by recalling Ms. Braid and Ms. K.R. and permitting cross-examination on the withheld information. It does not constitute a 'fatal wounding' of the trial process.
[20] The father says the court must consider that additional prejudice ensued because the father had previously conceded that there was no concern with Ms. K.R.'s ability to care for the child Ar.M. (J.M. is in a foster home.) The fact that Ms. K.R. had known of the disclosure by the child for six months before notifying police, together with the timing of the complaint to police have resulted in a change of his position.
[21] It is only these two facts that have been identified as the basis for Mr. A.M.'s change in position. It would not logically cause a complete readjustment of the Respondent's strategy, and no such disruption was identified.
[22] This problem too can be remedied short of a mistrial. Mr. A.M. can be permitted to resile from his position that that Ms. K.R. is capable of caring for Ar.M. on the basis of this development. He can then cross-examine Ms. K.R. on these issues.
Analysis of OCL's Additional Grounds
[23] Turning to the issues raised by the OCL and said to support a mistrial:
a) The Alleged Infringement of the Children's Charter Rights
[24] The OCL provided the example that Ar.M. was not told she was speaking with a police officer prior to or during her police interview. This allegation rests exclusively on two statements by this ten-year-old to the effect that she was not interviewed by police. No independent evidence, such as a police record or other document was offered in support of this assertion. It is certainly commonplace for officers to identify themselves as police when interviewing children. It seems unusual that this would not occur.
[25] Even assuming that this occurred however, there are two problems with this analysis. The first is that no authority was offered to support the proposition that not telling a child witness that a person is a police officer is an infringement of that child's Charter rights.
[26] But the larger problem with the position is that granting a mistrial would not rectify this situation if it occurred. There is no logical connection between such an event and an unfair trial.
b) Sequential and Redacted Disclosure
[27] Obviously, it is preferable for disclosure to be provided in a single, coherent package. This is not always possible however, when redactions are contested and negotiations undertaken. In this case, the OCL has not made a clear connection as to how the past sequential disclosure renders the trial unfair.
[28] With respect to redactions, it is beyond the scope of this hearing for the court to review particular redactions and rule on their propriety. If OCL had or has an issue with respect to redactions, it would be open to them to apply for unredacted disclosure. The OCL did not do so. Where a party chooses not to actively address issues in procedure, it cannot subsequently rely on those issues to upend the trial process.
c) Failure to Provide Police Records
[29] The agency did not disclose these records because it was not in possession of them. If the OCL felt they were critical, it could have brought a motion for production of them. It did not do so. It is, at the time of this hearing, some four months since the fact of the investigation was revealed.
[30] It would be poor social policy indeed to permit a litigant to do nothing to obtain what it says are vital records, and then rely upon that fact to seek mistrial.
d) The Children's Views
[31] The evidence of the OCL is that J.M. specifically noted that he would like a mistrial because his father wants one and he would like to help his father. J.M. also expressed the view that a delay in the trial would mean that there could be a further delay into his Indigenous heritage.
[32] The first statement raises significant concern about the basis of the expressed view. Among other things, it raises concern about the genuineness of the view. With respect to providing time for further research, I note that the decision on the OCL motion to set aside the prior order finding J.M. is not Indigenous was released in March 2025. Six months have since elapsed. There is no indication that the OCL has taken any further steps on the matter.
[33] The child J.M. was described in evidence at the trial as operating at a much younger developmental level than 14. Ar.M. is 10 years of age. It is difficult to see that they would have a fulsome and nuanced understanding of the full ramifications of a mistrial.
[34] Finally, I note that the OCL did not provide any authority to support how children's views should be factored into the adjudication of a mistrial application. The factors set out in the jurisprudence focus on trial fairness.
e) There May Be Further Documents That Have Not Been Disclosed
[35] This ground rests on the affidavit evidence of Jonathan DeLuca, the OCL clinical assist to counsel. Mr. DeLuca states that he, has "concerns" with the disclosure including either "gaps in disclosure, missing disclosure or incomplete disclosure". He goes on to say, "I am also concerned that if this is not a disclosure issue, the Society has not conducted a proper child protection investigation".
[36] Although Mr. DeLuca has worked in child protection in the past, his expertise to opine on disclosure is not clear.
[37] His evidence as to "gaps" or "missing disclosure" is speculative. If the OCL had problems with respect to missing disclosure, it was open to it to arrange an examination out of court to get to the bottom of that issue. It did not do so.
[38] It would be unfair to these children to indefinitely delay the adjudication of this proceeding on the basis that there may be missing disclosure.
[39] If there is an inadequate child protection investigation, then that can be addressed at trial. It ought not upend the trial that has already commenced.
Analysis of Judicial Bias Allegations
[40] Then there is the issue of "potential judicial bias". There is a strong presumption of judicial impartiality. The burden is on the person raising the issue. Mere speculation about "potential judicial bias" is not sufficient.
[41] In this case, it is difficult to see any basis for this assertion. It cannot be an awareness of the Society's withholding of disclosure regarding the investigation. The father's counsel made it clear in submissions that should a mistrial be granted; this fact would very definitely be raised in any subsequent trial.
[42] It cannot be that there may be, as father's counsel suggests, judgment against the society and the grandmother as to their credibility. Assessing credibility is an essential part of the trial process. No such assessment has been made heretofore in this trial.
[43] It is not clear then precisely what information has been received that would create a judicial bias. Even if there is some information of this nature, it would not in and of itself necessitate the last resort option of mistrial.
[44] As noted in J.J. supra, the mis-reception of information by a judge sitting alone is insufficient to declare a mistrial. It must be coupled with the judge's inability to disabuse his or her mind of that information or the reasonable belief that the judge would not be able to do so.
[45] It is the very function of a trial judge to be able to be unaffected by inadmissible evidence. Trial judges are routinely entrusted with the task of hearing and rejecting information that should not be entered into the court record. There is no evidential basis to establish that a) inadmissible evidence has been entered and b) that this has resulted in a judicial inability to disabuse her mind of that information.
Consideration of Delay and Children's Interests
[46] Finally, it is noteworthy that at the time of this hearing, the child J.M. has been in agency care for 969 days. The child Ar.M. has been in a situation of uncertainty for the same time. Up until the point of the request for mistrial, the OCL repeatedly noted that the delay in reaching resolution was difficult for the children, especially J.M. A mistrial would result in a substantial delay. Family trial dates in this jurisdiction are few and far between. The delay ensuing would be particularly long because it is clear that a fresh trial management conference would first be required.
[47] The agency's review of the jurisprudence exhorting the courts and parties to work collaboratively to avoid delay and adhere to statutory timelines was instructive. There truly does need to be, as Justice Glenn has said, a sense of urgency. Unfortunately, that seems to be largely missing in this proceeding.
Disposition
[48] The motion for mistrial is dismissed.
Released: September 29, 2025
Signed: Justice K.A. Baker