WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
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. (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.
CITATION: T.M.N. v. Child and Family Services of Grand Erie (formerly C.A.S. of Haldimand Norfolk), 2023 ONSC 2959
DIVISIONAL COURT FILE NO.: DC-22-00000117
DATE: 20230517
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Nishikawa and Leiper JJ.
BETWEEN:
T.M.N.
Appellant
– and –
Child and Family Services of Grand Erie
(Formerly The Children’s Aid Society
of Haldimand & Norfolk) and H.B.H.
Respondents
David Miller, for the Appellant
H.B.H., Self-Represented
Darryl Clarke, for the Respondent, Child and Family Services of Grand Erie (Formerly The Children’s Aid Society of Haldimand & Norfolk)
HEARD by videoconference in Hamilton: February 6, 2023
REASONS FOR DECISION
Stewart J.
Nature of the Appeal
[1] This is an appeal from the final Order of MacLeod, J. dated December 3, 2021. The motions judge found the Appellant’s child (the “Child”) to be in need of protection and placed the Child in extended care with the Respondent Child and Family Services of Grand Erie (“Child Services”) pursuant to the Child Youth and Family Services Act, 2017, S.O. 2017 c. 14, Sched. 1 (“CYFSA”).
[2] The Order under appeal was granted following a hearing of motion brought by Child Services by way of summary judgment based primarily upon facts contained in and agreed upon in a Statement of Agreed Facts (Child Protection) (the “SAF”) executed by the Appellant (the Child’s mother) and by the Respondent H.B.H. (the Child’s father) on June 8, 2021.
[3] The Appellant asks this Court to set aside the Order and remit the issues in dispute between the parties for a full hearing by way of trial on an expedited basis. The Appellant seeks to adduce “fresh evidence” in the form of affidavits sworn by her and H.B.H in support of her principal argument that former counsel provided ineffective assistance that resulted in a miscarriage of justice.
[4] Child Services opposes the appeal and the motion to admit fresh evidence and submits that they should be dismissed.
Background Facts
[5] The Appellant and H.B.H. are in their mid-twenties and have been involved with Child Services since April 2016. The Appellant has an intellectual developmental disability; H.B.H. has a history of substance use and anger management issues. They have four children born between June 2016 and February 2022. The two older children currently live with a paternal aunt and her husband. The two younger children, including the Child, are currently in the temporary care and custody of Child Services and reside in a foster home.
[6] In November 2019, the two older children were placed in extended care by court order. Child Services had brought an application seeking a protection order after multiple injuries suspected to have been caused by significant inflicted trauma were found on one of the children, injuries for which the parents could not provide a reasonable explanation. Shortly before the trial that had been scheduled to proceed on November 25, 2019 the parents consented to an order finding the two older children to be in need of protection and placing them in extended care with Child Services.
[7] Child Services had no further involvement with the Appellant or H.B.H. until learning of the Appellant’s pregnancy with the Child. On June 2, 2020, the newly-born Child was taken to a place of safety. Child Services promptly brought an application for an order that the Child was in need of protection.
[8] A trial of the issue raised on the application of Child Services was scheduled to proceed on June 28, 2021. On June 8, 2021 and after having received advice from their counsel, James Battin, the Appellant and H.B.H. executed the SAF and consented to an order finding the Child in need of protection and placing the Child in extended care with Child Services with access to the parents. The SAF acknowledged that the Child was residing with kin at the time and that the plan was to place her there on a permanent basis.
[9] Child Services signed the SAF on June 9, 2021. On June 10, 2021, Mr. Battin advised the Trial Co-ordinator that his clients had decided to retain new counsel and asked that the executed SAF not be provided to the presiding judge.
[10] Counsel for Child Services took the position that the SAF had been properly agreed to and executed and should nevertheless be put before the judge. A request was made to appear before the judge to speak to the implications of this development. Child Services then moved for a final order based on the terms as agreed upon in the SAF.
[11] On June 11, 2021 the parties attended in court. Mr. Battin advised the judge that the parents wished to revoke the SAF and retain new counsel and asked that the motion brought by the Child Services not be permitted to proceed. The judge invited the parents to file affidavit evidence outlining their position regarding the SAF on or before June 17, 2021.
[12] The parties appeared in court again on June 21, 2021. The parents reiterated their position on the SAF but did not file any affidavit evidence in response to the judge’s invitation. Mr. Battin was removed as their counsel of record and the matter was adjourned to permit the parents to retain new counsel.
[13] On September 29, 2021 when the Appellant and H.B.H. appeared with their new counsel, the presiding judge adjourned the proceedings to address the SAF issue and ordered them to proceed by way of a long motion on November 24, 2021, noting the Appellant’s intention to bring a cross-motion to re-open the matter. Given that Child Services was seeking an order for extended care of the Child, the judge was not prepared to adjudicate on the admission of the SAF and its reliability without a hearing on the issue.
[14] On November 11, 2021 the Appellant and H.B.H brought a motion to set aside the SAF and to prohibit the SAF from being admitted into evidence and filed their affidavits in support of the motion. In an Amended Answer and Plan of Care dated November 11, 2021, the parents also sought an order that the Child be returned to their care and custody or to the care and custody of the Child’s paternal grandparents.
[15] On November 17, 2021 Child Services brought a motion for summary judgment seeking a dismissal of the Appellant’s motion and a final Order finding the Child in need of protection and ordering placement in the extended care of Child Services with access to the parents.
[16] On November 24, 2021 the motions proceeded to a hearing by way of a long motion attendance before the motions judge as ordered. The affidavits and documents filed by the parties were before the motions judge.
[17] The Appellant argued that the SAF should be struck out pursuant to Rule 18(13)(b) of the Family Law Rules, R.R.O. 1990 (“FLR”) because Child Services did not carry out the terms of the offer to settle because it had not specifically followed the plan to place the Child with kin. The motions judge rejected this argument and found that Rule 18(13) did not apply to these circumstances, that the terms of the SAF were not rigid, and that Child Services nevertheless would maintain discretion to change the intended plan if warranted.
[18] The Appellant also argued that the SAF should be struck under Rule 1(1)(8.s) of the FLR because the document purportedly made it difficult to have a fair trial. It was argued by the Appellant that the SAF had been almost immediately revoked by the parents after having signed it. Further, the Appellant submitted that the SAF was tainted by the parents’ alleged lack of a full appreciation of its effect and their dispute with their former counsel.
[19] The motion judge outlined in reasons for the decision the parents’ evidence of the circumstances of the execution of the SAF by them on June 8, 2021, as follows:
(a) Mr. Battin had a meeting with the parents prior to June 8, 2021 in which he provided his opinion as the difficulties they faced and his advice to sign the SAF as the SAF represented the best they could get at trial;
(b) The parents admitted that Mr. Battin reviewed the SAF with them in detail at their further meeting on June 8, 2021 and did not allege on the motions that counsel was ineffective;
(c) The parents initially resisted signing the SAF at the June 8, 2021 appointment. They claimed that Mr. Battin threatened to withdraw from representation if they continued to refuse his advice to sign the SAF. The parents said that they felt pushed into signing the SAF;
(d) After signing the SAF, H.B.H. was conflicted about signing, was “choking up” and “trembling” and took a long time to calm down;
(e) The SAF executed by the parents was forwarded by Mr. Battin’s office to Child Services on the next morning (June 9, 2021) for execution by Child Services. Child Services then moved for a final order based on the SAF.
[20] The motions judge found that the parents did not “almost immediately” try to revoke the SAF after executing it, contrary to their assertions. If they had, the SAF would not have been forwarded to the Society the next morning by their counsel. The motions judge found that the parents did not communicate any remorse or desire to revoke the SAF to their former counsel until some time after the SAF had been forwarded to counsel for Child Services for its execution.
[21] In addition, the motions judge found that the evidence did not support a finding that the parents lacked a full appreciation of the SAF’s effect. The mother’s psychological evaluation report dated October 12, 2021 tendered by her counsel did not suggest that she suffered from such an intellectual incapacity that it would have negated her basic appreciation of what she had executed. The parents were already familiar with the concept and effect of an SAF since they had signed one in November 2019 that included the same effects and protections for their two older children.
[22] The motions judge also found that there was no evidence to support the parents’ assertion that they were coerced or pressured by counsel by having been told that they would have to proceed to trial unrepresented if he withdrew. Rather, the sequence of events demonstrated that their counsel attended with the parents in court to explain their desire for new counsel and took all steps to ensure the matter would not proceed until new counsel had been retained.
[23] The motions judge therefore found that the parents signed the SAF after having received adequate legal advice and in the absence of duress, mistake, or fraud. The request to set aside the SAF was refused.
[24] The SAF consequently was deemed by the motions judge to be admissible, and Child Services was permitted to rely on it for the truth of its contents for the purposes of its motion for summary judgment. In the SAF, the parents had agreed to the facts relating to their previous involvement with Child Services arising out of concerns for the welfare and safety of their older children as investigated and addressed by Child Services. They also acknowledged that Child Services had observed that the Appellant’s intellectual delay continued to impede her parenting capacity such that she required virtually constant guidance and supervision that was neither easily available nor feasible in the circumstances. The parents acknowledged that they had no clear plan to ensure that the Appellant’s care of the Child would be comprehensively overseen while H.B.H. was at his place of employment each day.
[25] The motions judge accepted as reliable and accurate the facts as outlined in the SAF, facts which had not been adequately displaced by the parents’ evidence or the Amended Plan of Care that had been filed by them. The motions judge granted Child Services’ motion for summary judgment, finding no genuine issue for trial and finding the Child in need of protection. The Order was made placing the Child in the extended care of Child Services with access to the parents.
[26] The Appellant, represented on this appeal by a third counsel who did not participate in the attendance before the motions judge, appeals the Order and asks that it be set aside. In support of that effort, she now seeks to introduce “fresh evidence” to establish that she and H.B.H. were disadvantaged by ineffective counsel in the circumstances surrounding their signing of the SAF to the extent that a miscarriage of justice occurred.
[27] In accordance with the protocol for dealing with circumstances in which ineffective assistance of counsel is alleged, former counsel was served with notice of the appeal and supporting materials (see: J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630). He did not attend on this appeal but provided a sworn affidavit to counsel for the Appellant which was uploaded onto Caselines for the information of the panel hearing this appeal. In his affidavit, Mr. Battin describes the thorough discussion he had with his clients prior to their signing of the SAF and denies all allegations that they were pressured into doing so by any threat by him to withdraw his services or any pronouncement that they would then be required to proceed to trial without legal representation. He also refers to certain background information concerning the Appellant and H.B.H. that might have served to result in an outcome of a trial that would have been even less satisfactory to them than that set out in the SAF they signed.
[28] The Appellant and H.B.H. have waived all solicitor-client privilege applicable to their retainer of their former counsel in accordance with the requirements of the protocol.
Jurisdiction
[29] This Court has jurisdiction to hear this appeal pursuant to s. 121(2.1)(b) of the CYFSA and s. 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
Standard of Review
[30] This Court has previously commented on the standard of review to be applied in the context of child protection appeals. The court owes a special duty to protect the safety and well-being of children, as the best interests of the children are the paramount concern in child protection proceedings (see: A.L.B. v. Durham Children’s Aid Society, 2021 ONSC 8041 (Div. Ct.)). The standard of review on appeal set out in Housen v. Nikolaisen, 2002 SCC 33 remains applicable, as both parties agree, with that special duty in mind. An appeal court in a child protection case may interfere with the judge’s conclusion only if he [or she] made an error in principle, misapprehended the evidence or arrived at a clearly unreasonable result (see: M.F. v. Family and Children Services of Lanark, Leeds and Grenville, 2013 ONSC 702).
Admission of Fresh Evidence
[31] As noted above, the Appellant seeks to adduce fresh evidence on the issue of alleged ineffective assistance of counsel.
[32] The standard test for admission of fresh evidence on an appeal is set out in Palmer v. The Queen 1979 8 (SCC), [1980] 1 S.C.R. 759. That test, when applied in a child protection appeal in light of s. 121(6) of the CYFSA, has been described as being “more relaxed”. Such evidence should be admitted in a child protection proceeding if it: (a) could not have been adduced before; (b) is highly relevant in that it provides the court with an accurate picture of the situation at hand; (c) is potentially decisive to the child’s best interests; (d) is credible; (e) is uncontroverted; and (f) updates evidence submitted between the time of the prior hearings and the appeal. A flexible approach should be taken, given the need for accurate and up-to-date information concerning the child’s best interests: see Children's Aid Society of Toronto v. P.M., 2015 ONCA 695.
[33] In this case, however, the evidence sought to be adduced is not of a nature that is more commonly proffered in child protection appeals. It is not designed to provide up-to-date information relevant to the best interest of the Child or to give a better picture of the situation at hand. Rather, the proposed fresh evidence deals with the same events that surrounded the execution by the parents of the SAF as had already been outlined in their affidavits filed on the motion that resulted in the Order under appeal, with some augmentation and occasional contradiction.
[34] It is also noteworthy that the Appellant’s counsel on the motion did not specifically allege ineffective assistance of counsel with respect to the circumstances surrounding the execution of the SAF on the motion, as the motions judge observed. Had that been done, the requirements of the protocol would have been triggered. These would have included a requirement of service of the motion materials upon Mr. Battin, the waiver by the parents of solicitor and client privilege, and the possible extension of an opportunity to Mr. Battin to provide evidence and participate on the motion. There is no reason to expect that Mr. Battin’s evidence tendered at such time would have been different from that contained in his affidavit made available to the panel on this appeal. Such evidence would not have supported the Appellant’s version of the facts and, in fact would have contradicted it.
[35] As submitted by Child Services, the fresh evidence should not be admitted because it could have been previously adduced on the original motion. In fact, much of it was in the affidavits tendered on behalf of the parents in support of their position that the SAF should be set aside. In most respects, the fresh evidence is sought to be introduced in order to repeat and re-frame the arguments already advanced at the motion to support the parents’ assertion that they were coerced and ill-served by their counsel.
[36] Even with an assessment of the issue of admission of the fresh evidence based upon the more relaxed standard applicable to a child protection proceeding, I would not consider that the evidence has met the test for admission on this appeal. In particular, the evidence could have been adduced at the original hearing of the motion, is not relevant to the present situation at hand, has little bearing on the best interests of the Child, is of questionable credibility and is not uncontroverted.
[37] Accordingly, the motion to admit the fresh evidence is dismissed.
Did the motions judge make an error in principle, misapprehend the evidence, or arrive at a clearly unreasonable result?
[38] The Appellant submits that when considering the evidence relating to the admission of the SAF, the options judge erred by:
(a) Finding that the SAF was not withdrawn immediately;
(b) Finding that the parents had been told the reality of the likely circumstances if they did not follow counsel’s advice;
(c) Finding that there was nothing to suggest that the parents were told that they would have to represent themselves at the trial without counsel.
[39] The Appellant also submits that the motions judge did not assess on the motion for summary judgment whether there were genuine issues requiring trial but only assessed whether the SAF was admissible. She argues that no evidence from the many witnesses expected to be called at trial was put before the motions judge and that therefore it was not a proper summary judgment motion.
[40] The Appellant also alleges that the motions judge erred in not considering evidence other than the SAF and the related evidence as to how it came to be signed, and in failing to exercise caution before granting an extended society care order in this child protection case.
[41] Although counsel for Child Services argues that all of these arguments are subject to issue estoppel and are an abuse of process, I would nevertheless view them as having been properly raised on this appeal and would therefore consider and address them.
[42] The Society acknowledges that ineffective assistance of counsel was not explicitly plead or argued in the prior motion. It was, however, referred to implicitly throughout.
[43] The crux of the Appellant’s argument is that she and H.B.H. feared the prospect of conducting a trial unrepresented. However, the motions judge found that counsel only told them that he could not represent them at trial. There was nothing advanced before the motions judge by the parents to support their claim that their counsel told them the trial would be going ahead as scheduled and inevitably they would have to handle it themselves without any legal representation. In fact, counsel continued to attend court appearances to ensure that their interests were protected until new counsel had been identified to act for them and he could be removed as their counsel of record.
[44] The decision of the motions judge to refuse to strike out the SAF and to admit it into evidence on the motion for summary judgment is one for which there is ample justification in the record and in the interpretation by the motions judge of the Rules cited as authority for the parents’ request. The parents were permitted to provide their evidence on all issues raised in the SAF and to put that evidence before the motions judge. The history of the involvement of the parents with Child Services was not seriously refuted. Their earlier agreement with the facts set out in the SAF and the appropriate order to be made is of relevance to the issue of whether the Child is in need of protection. I therefore see no basis upon which to interfere with the decision of the motions judge in refusing to strike out the SAF and exclude it for consideration on the summary judgment motion brought by Child Services.
[45] With respect to the Appellant’s submissions concerning the motions judge’s decision to grant the summary judgment motion, it is evident that the findings of the motions judge are based in large part on the contents of the SAF. A review of the affidavit evidence tendered by the parents on the motions does not result in the identification of any significant facts that would undermine or call into question the motions judge’s finding that the Child is in need of protection that is in the best interests of the Child.
[46] If there were compelling evidence available to the parents to advance a more acceptable alternative Care Plan or to effectively challenge the evidence relating to their background with Child Services and to minimize or qualify their current and significant parenting challenges, they did not provide it on the motion to the extent required to raise a triable issue, as was their obligation to do. Accordingly, the motions judge found that there was no genuine issue for trial.
[47] Although the stakes of the proceedings were very high, the Appellant and H.B.H. did not have any absolute entitlement to a trial unless they were able to identify a genuine issue for trial. Based upon all of the evidence before the motions judge, including the SAF, they could not do so.
[48] The findings of fact of the motions judge must attract a high degree of deference. I can find no misapprehension of the evidence or overriding and palpable error in the decision and reasons of the motions judge. Similarly, there is no error in principle that can be identified, nor has it been shown that the motions judge arrived at a clearly unreasonable result. Accordingly, there is no basis upon which any interference with the decision of the motions judge can be justified in these circumstances.
Conclusion
[49] For these reasons, this appeal is dismissed.
Costs
[50] In the circumstances, the successful party Child Services does not seek any costs of the appeal. In accordance with that position, no costs will be ordered as against any party.
Stewart J.
I agree _______________________________
Nishikawa J.
I agree _______________________________
Leiper J.
Released: May 17, 2023
CITATION: T.M.N. v. Child and Family Services of Grand Erie (formerly C.A.S. of Haldimand Norfolk), 2023 ONSC 2959
DIVISIONAL COURT FILE NO.: DC-22-00000117
DATE: 20230517
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Nishikawa and Leiper JJ.
BETWEEN:
T.M.N.
Appellant
– and –
Child and Family Services of Grand Erie
(Formerly The Children’s Aid Society
of Haldimand & Norfolk) and H.B.H
Respondents
REASONS FOR DECISION
Stewart J.
Released: May 17, 2023