CITATION: E.R. v. P.L., 2016 ONSC 7492

COURT FILE NO.: FS-16-20835

DATE: 20161201

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: E.R., Appellant

AND:

P.L. and K.B. and CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO, and THE OFFICE OF THE CHILDREN'S LAWYER, Respondents

AND:

ARTHUR BROWN, intervenor

BEFORE: E.R. Kruzick J.

COUNSEL: E.R., acting in person

Lauren Stringer, for the Respondent Catholic Children's Aid Society of Toronto

Kiran Arora, for the Respondent Office of the Children’s Lawyer

Adrienne Lei, for the intervenor

HEARD at Toronto: September 26, 2016 (with further submissions and correspondence to October 18, 2016)

On appeal from the orders of Zisman J. and Jones J. of the Ontario Court of Justice dated March 23, 2016 and April 5, 2016 respectively.

ENDORSEMENT

Overview

[1] This is a child protection proceeding. The appellant appeals the decisions of the Ontario Court of Justice (“OCJ”) of Zisman J. (“motions judge”) made on March 23, 2016 and Jones J. (“trial judge”) made on April 5, 2016.

[2] On March 23, 2016, a motion was brought by the appellant before the OCJ motions judge seeking an adjournment of a trial date set for April 4, 2016. The request was denied.

[3] A trial management conference was held on April 1, 2016 before the trial judge. The appellant sought an adjournment of the trial. The adjournment was denied. The appellant terminated the service of her counsel and withdrew from participating in the trial. The trial proceeded without the participation of the appellant.

[4] On April 5, 2016, the trial judge made an order finding the child, M.S.E.G.R.-B. (“M.”) in need of protection pursuant to subsections 37(2)(f) and (g) of the Child and Family Service Act, R.S.O. 1990 c.C-11 (“CFSA”). Pursuant to s. 57.1 of the CFSA, the trial judge granted sole custody of the child to the Respondent P.L., the maternal grandmother.

[5] The appellant takes the position that the motions judge and trial judge erred in their findings of fact and in the application of the law.

[6] The function of this court is to consider the totality of the motion and trial record and to determine whether the motions and trial judge applied the law correctly to the evidence, absent palpable and overriding error.

[7] On this appeal, I am of the view that the motions judge and the trial judge carefully and thoroughly reviewed the evidence and made no reversible errors in their findings of fact and application of the law to those facts. The appeal is therefore dismissed.

Background

[8] This action began on April 11, 2013 when the Catholic Children’s Aid Society (“CCAS”/“Society”) commenced a child protection application regarding the child, M.

[9] The child, M., is the biological child of the appellant and K.B. M. was born in 2005 (now age 11). Although K.B. is a party to the proceedings, he did not participate in the trial or on this appeal.

[10] The CCAS became involved with this family because the child had frequently changed schools, was absent from school and, when in the classroom, exhibited concerning behavior. Originally, M. remained in the care of the appellant subject to supervision by the Society.

[11] The concerns for the child increased due to the appellant's failure to cooperate with the Society and when the Society received information of police involvement with the family.

[12] On May 28, 2013, pursuant to temporary order, the child, M., was brought into the care of the Society.

[13] On June 12, 2013, P.L., the maternal grandmother, who resides in Ottawa, brought a motion, supported by the appellant, to have the child placed in the care of the grandmother on a temporary basis.

[14] The Office of the Children’s Lawyer was appointed as counsel on behalf of the child. Because the grandmother’s resided in Ottawa, the Ottawa Children’s Aid Society ("CAS") became involved with the family.

[15] The Ottawa CAS conducted and completed an assessment of the placement with the maternal grandmother. Given no concerns, the Society did not oppose the grandmother’s motion.

[16] The motion of the grandmother was heard on June 26, 2013. A temporary supervision order was made placing the child in the care of the grandmother. Pursuant to that temporary supervision order, the child has been in the care of the maternal grandmother since June 2013 to the date of this appeal.

[17] The Society is satisfied with the kinship placement of the child and the custodial arrangement with the maternal grandmother. In March 2014, the Society amended the Protection Application to seek an order for custody to the grandmother pursuant to s. 57.1 of the CFSA.

[18] On April 4, 2015, the maternal grandmother was made a party to the proceeding. The maternal grandmother participated at the trial of this matter, but is not an active participant on this appeal.

[19] The matter was set down for trial in 2015. On March 23, 2016, at an OCJ trial management conference, the appellant sought an adjournment of the trial, set for April 2016. The adjournment request was denied. On April 1, 2016, a further motion for adjournment brought by the appellant before the trial judge. That motion was denied and the matter proceeded to trial on that day.

[20] On April 5, 2016, the trial judge found the child M. to be in need of protection and made an order granting custody of M. to her maternal grandmother with access to the appellant at the grandmother’s discretion.

[21] The appellant appeals the orders of the motions and trial judges. The hearing of the appeal was set down for May 2016. Prior to the return date, the appellant filed fresh evidence and amended her notice of appeal to add ineffective counsel as a further ground of appeal.

[22] The hearing of the appeal was adjourned to September 26, 2016 to enable response to the appellant’s fresh evidence. The appellant’s former lawyer was granted intervenor status and the appeal was adjourned and argued on September 26, 2016.

[23] Since the oral hearing of the appeal, the appellant served and filed a Notice of Withdrawal dated September 28,2016 together with a further fresh affidavit sworn the same day. The appellant withdrew her ground of ineffective counsel.

[24] Counsel for the respondents were served with the Notice of Withdrawal and (as of October 18, 2016) informed the court that no further responding materials would be filed in response.

Issues raised on the Appeal

[25] The questions on this appeal are:

(1) Did either or both the motions judge and the trial judge err in refusing to grant an adjournment of the trial and were the appellant’s rights pursuant to the Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985 ("the Charter"), were breached by the OCJ refusing the adjournment and proceeding with the trial?

(2) Were the appellant’s Charter rights breached by the fact that the applicant is the Catholic Children’s Aid Society and neither the appellant nor the child are Roman Catholic?

(3) Did the trial judge make a palpable and overriding error in granting custody to the child to the maternal grandmother with access to the appellant at the grandmother’s discretion?

(4) Did the conduct of former counsel for the appellant constitute ineffective counsel?

Postion of the parties

Appellant

[26] It is the position of the appellant that both the motions and trial judges err in refusing to grant an adjournment of the trial denying her the ability to prepare for the trial. It is argued the trial was heard denying her participation in process. The appellant relies on s. 7 of the Charter alleging her rights were breached when the trial proceeded without her participation and while her liberty was restricted by her incarceration.

[27] The appellant argues that she was denied the right to be heard.

[28] The appellant also argues that her ss. 1 & 2 of her Charter rights were breached by the Catholic Children’s Aid Society of Toronto’s involvement when neither the appellant nor the child are Roman Catholic.

[29] The appellant submits that the trial judge made a palpable and overriding error in her decision granting custody to the grandmother with limited access to the appellant in the grandmother’s discretion. The appellant argues that the trial judge erred in making her decision on facts and circumstances without the evidence and submissions of the appellant.

[30] Although the appellant alleges ineffective counsel in the written material, in oral submissions the appellant contradicted her position and submitted that her former counsel did all he could in acting on her behalf.

[31] The appellant argues her incarceration prevented her counsel from preparing for the trial and interfered with her ability to consult with counsel to be trial ready.

[32] The ground of ineffective counsel is withdrawn by the appellant.

Respondents

[33] It is the position of the respondents that the appeal should be dismissed. The respondents are united in their position that neither the motions nor the trial judges made an error in refusing to grant the adjournment.

[34] The respondents argue that the appellant withdrew from participating in the trial when the motions for adjournment was not granted by the trial judge. It is the position of the respondents that there is no breach of the appellant’s Charter rights given the appellant’s decision not to participate in the trial.

[35] The Society is satisfied with the child’s care in the home of the maternal grandmother.

[36] The Society has ongoing concerns about the appellant’s ability to provide care for the child. These concerns, include the appellant’s lifestyle, her inability to satisfy the Society with a satisfactory plan of care, her lack of stability and her dishonest and uncooperative relationship with the Society in their three years of their involvement with the family. To serve the best interests of the child, the respondents submit that access should be at the discretion of the grandmother.

[37] The respondents take the position neither the motions judge nor the trial judge made any palpable or overriding errors in granting the grandmother custody with access to the appellant at the discretion of the grandmother.

Intervenor

[38] The intervenor, former counsel for the appellant, filed an affidavit in response to the third amended Notice of Appeal alleging ineffective counsel. The intervenor submits the ground of ineffective counsel must fail. Since arguing the appeal, the intervenor was served with the appellant’s fresh affidavit and Notice of Withdrawal of the ground of ineffective counsel. The intervenor makes no further submissions.

standard of Review

[39] The appellant did not address the standard of review or argue with the submissions of the respondents.

[40] The standard of review on questions of law is correctness and on questions of fact and, mixed fact and law, palpable and overriding error. Counsel for the respondents referenced the test as set out in Housen v. Nikolaisen (2002), 2002 SCC 33, 2 S.C.R. 235.

[41] Absent any overriding and palpable error, on this appeal, this court should not interfere with the orders of the motions or trial judge. It is not the function of this court on appeal to re-examine and to draw its own conclusions of the facts. See L.K. v. Children's Aid Society of Ottawa-Carleton; L.K. v. Children's Aid Society of Lanark County, 1996 CanLII 11338 (ON SC), [1996] O.J. No. 2650.

Analysis

(1) Denial of Adjournment of the Trial

History leading up to the adjournment request

[42] This matter has a long-standing and complicated court involvement. I do not propose to review the numerous attendance and appearances in this case, but will only refer to those relevant to this appeal.

[43] This matter was set down for trial in the Ontario Court of Justice on April 21, 2015. On February 9, 2016, the parties were informed that the trial would proceed on April 4, 2015.

[44] A Prisoner’s Attendance Order enabled the appellant to attend all court proceedings. On March 23, 2016, at the trial management conference, the appellant sought an adjournment of the trial. The appellant argued that her incarceration prevented her from being trial ready.

[45] Counsel for the maternal grandmother, counsel for the child and the Society opposed the request for the adjournment. The Society contemplated proceeding by way of summary judgment, but was prepared to proceed with the trial as confirmed to commence in April 2016.

[46] On the 1st of April, 2016 the appellant, represented by counsel, appeared before the trial judge. The appellant once again sought an adjournment of the trial alleging pressures due to her incarceration and the distractions caused by her criminal proceedings.

Findings with respect to the Adjournment

[47] In reading the relevant portions of the transcripts, the appellant’s requests for adjournment were, I find, carefully considered by both the motions and trial judges. The decisions to refuse the adjournment requests were, I find, made knowing the appellant’s circumstances and based on the best interests of the child. The court found the need to bring finality of the case for the sake of the child.

[48] The court considered the fact that a trial management conference was first held in March 2015. Pursuant to the endorsement of April 21, 2015, the matter was set to proceed to trial on June 15, 2015 (on the standby list). The case was not reached and came back before the assignment court in January 2016 with the expectation that the trial would begin in April 2016. In the intervening period, the appellant was incarcerated.

[49] At the Trial Management Conference, on March 23, 2016, the appellant sought an adjournment of the trial because of her incarceration and her alleged inability to prepare for trial. Briefly, the motions judge denied the adjournment for the following reasons:

(a) The child was in care since 2013.

(b) The matter was on the trial list since June 2015.

(c) The appellant, even though incarcerated, was able to participate in the trial and should have been trial ready.

[50] The motions judge denied the adjournment on the basis of time the child was in care and, bearing in mind circumstances of the appellant, further delay would not serve the best interests of the child.

[51] When the adjournment request was made before the trial judge, the trial judge came to the same conclusion. As stated by the trial judge, the appellant acknowledged in her Answer that it was “extremely important that a trial be arranged in this proceeding as soon as possible”. See Transcript of April 1, 2016, p.2.

[52] The trial date was no surprise to the appellant or her counsel. The trial judge referred to the fact that appellant’s counsel of record had acted for her since December 2013 thus the trial judge found the trial should proceed.

[53] In her decision of April 1, 2106, the trial judge referenced the hearing date timelines in child protection proceedings pursuant to the CFSA and the Family Law Rules. The trial judge referred to s. 70 of the CFSA which imposes a 24 month maximum on the duration of society wardship orders. On April 1, 2016, when the second request for an adjournment was made, the child was in care, well beyond the timelines, for almost 34 months (since June 2013).

[54] While there is some discretion with respect to the timelines, it was determined that a further delay in this case would have been detrimental to the child. On the facts and circumstances of this case, the approach taken by the trial and motions judge in the exercise of their discretion was, I find, correct.

[55] A strict approach of timelines should not be adhered to where that would not serve the paramount consideration, being the best interests of the child. In the end, based on the best interests of the child, the adjournment requests in this case were denied correctly given the length of time the child was in care and given the fact that the matter lingered in the court system without resolution for the child. See Children’s Aid Society of London and Middlesex v. M.O., 2014 ONSC 2435.

[56] The trial judge also found correctly that the appellant had ample time to prepare this matter for trial. Even though the appellant was incarcerated, she was accommodated by the court to attend the trial. The appellant had access to counsel and should have been ready. For her own reasons, the appellant was simply not willing to proceed.

[57] On this appeal, the appellant argues her mental health was such that she was not able to prepare for trial. The trial judge considered that argument and ultimately found that the court did not have medical evidence to support the appellant’s argument. It is fair to say that the court would have considered that submission had there been even a “medical note” in that regard. There was none. In end, there was no supporting evidence that the appellant could not proceed for medical reasons. The trial judge found no new evidence that enable her to come to a different decision.

[58] The court considered all of the facts and circumstances and denied the adjournment bearing in mind that the matter had been on-going for almost three years and the impact a further delay would have on the child mental, emotional and psychological health of the child. As stated by the trial judge, “it is not in the child’s best interests to be left in limbo”. For those reasons, and particularly given that the identical request was made and denied by the motions judge, the adjournment motion was, I find, correctly dismissed by the trial judge.

Section 7 Charter Rights

[59] The appellant argues her s. 7 Charter rights were breached when she was denied the adjournment. The appellant argues that because of her incarceration, she was denied her the right to meaningfully participate and to be heard at trial. It is submitted by the appellant that once it was determined that the trial would proceed in her absence, her Charter rights were violated.

[60] Under the heading of "Legal Rights" in the Charter, the section states:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice

[61] This section of the Charter ensures both substantive and procedural rights. The section protects due process. I cannot find, in the circumstances of this case, that the appellant was denied the principles of fundamental justice, or due process where she was heard, her circumstances were duly considered and she was able to participate at the trial represented by counsel.

[62] The appellant’s material failed to specifically address or satisfy the court as to the circumstances that prevented her from participation in the trial. Once the adjournment was denied by the trial judge, the appellant terminated her counsel’s retainer and withdrew from participating in the trial.

[63] In the appellant’s (further and fresh) affidavit sworn on September 28, 2016, and following oral argument on this appeal, the appellant provides the following explanation for terminating her lawyers retainer and her withdrawal from the trial process:

The following circumstances were beyond Mr Arthur Brown's control:

1. the refusal of the CCAS to consent to the adjournment

2. a parallel criminal law trial which had been scheduled prior to the moving of the family law trial from June 7, 2016 to the earlier April 1, 2016 date,

3)The Appellant's almost daily requirement in criminal court

4. the non-provision and non- accessibility of the family court documents to the Appellant at the Vanier facility due to:

a) well documented staff shortages und lock downs,

b) well documented Facility rules that do not allow inmates to view court documents in their rooms and do not allow inmates to view court documents without supervision

c) the general lack of human rights in such a facility which are public knowledge and have been well documented by the media.

5. The Appellant's Inability to get a bail hearing date because of the interference of the CCAS and their communications with the Crown.

6. the Appellants [sic] great concern for the welfare of her daughter and her desire to be released on ball so she could see her daughter, her acute distress and her psychological state during this time period.

[64] The appellant’s position, as set out in this new affidavit, has not changed. The appellant failed to provide the motions and trial judges with supporting and convincing evidence that her circumstances prevented her from being present or participating in the trial as scheduled.

[65] On this appeal, apart from the statements made by the appellant, there was no supporting evidence. Without further and supporting evidence, the appellant does not convince me that the trial should have been adjourned.

[66] Following the hearing of the appeal, the appellant served the respondents with her affidavit sworn on September 28, 2016 and her Notice of Withdrawal on the ground of ineffective counsel. The respondents filed no further affidavits in reply nor requested the opportunity to make further submissions.

[67] As set out below, the intervenor contradicts the appellant in his affidavit affirmed September 9, 2016. The evidence of the intervenor is that he was well-prepared to proceed with the trial on April 1, 2016. The evidence of the appellant, confirmed by the evidence of the intervenor, is that the appellant terminated his service and instructed him to withdraw. The appellant refused to participate in the trial.

[68] The appellant knew, or ought to have known, that if she chose not to participate in the trial, the matter would proceed. The trial then proceeded without the appellant’s participation which, I find, was as a result of her own indifference and refusal to participate in it.

Review of the Law

[69] An adjournment request brought during a child protection case must be considered in light of the child’s own s. 7 rights to life, liberty and security of the person. Where there is a conflict between the parents’ Charter rights and the child’s best interests, the child’s best interests must prevail. See A.R. v. Alberta (Child, Youth and Family Enhancement Act, Director), [2014] ABCA 148 and Children and Family Services for York Region v. H.C., [2008] O.J. 3536.

[70] I have little doubt that the interference of the state and the appellant’s loss of her parental status is difficult for the appellant. However, I agree with the decisions made by the motions and trial judges who balanced the rights of the parent and that of the child. I find that the decisions to refuse the adjournments were based on valid grounds. The need to have the trial heard, given the significant passage of time, compelled the court to proceed with the trial so that the best interests of the child could be served.

[71] The passage of almost three years is significant in the life of a child. At the date of trial she has been in the care of her grandmother for more than a quarter of her young life. It is without doubt difficult for the appellant to bear that her child is not in her care and the fact that her own mother has now assumed the role of primary care giver to the child. Yet, given the circumstances, that is what has now happened. In CCAS Metro Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 at page 206, L’Heureux-Dube states:

The passage of time in matters of child custody and welfare over extended periods may, unfortunately, carry a heavy burden for all concerned. …

… A few months of life of a child, as compared to that of adults, may acquire significance. Years go by crystallizing situations that become irreversible.

[72] In Children and Family Services for York Region v. H.C., Olah J. considered the conflicting question of a parent’s and the child’s s. 2 and s. 7 Charter rights and concluded:

19 While the state acknowledges the need for the timely resolution of a child's placement, the state, in seeking custody of the parent's child, engages the parent's section 7 Charter rights. These rights necessitate that the parents be able to participate properly and fully in the trial. However, the parents' Charter rights may come into conflict with the best interests of the child. While a balance between these two criteria is preferred, in the event that such a balance cannot be found, the best interests of the child must prevail. This statement is not to say that the rights of the parents should be ignored.

[73] The appellant’s rights were, I find, not ignored. As determined by the motions and trial judges, this child needed the matter to be settled. The child was found to be “in limbo”. The adjournment would only have protracted the burden of uncertainty for the child. In reviewing the argument made by the appellant on this appeal, I find, there was no convincing evidence before the motions or trial judges, nor on this appeal, that the adjournment of the trial would have been in the best interests of the child.

[74] There was, I find, no miscarriage of justice. On the record before me, I cannot find the appellant was deprived any rights in accordance with the principles of fundamental justice. As a result, there was no breach of the appellant's Charter rights.

[75] Accordingly, I find no error in the decision of either the motions or the trial judge in denying the adjournment of the trial.

(2) Charter Rights - Religion

[76] The appellant argues that there was a breach of s. 86 of the CFSA and the child’s and her rights under s. 2 of the Charter. Freedom of religion is a guarantee under s. 2(a) of the Charter.

[77] It is clear from the trial record, and not denied, that neither the appellant nor the child are of the Roman Catholic faith. From the material and the argument, it appears that the CCAS initially became involved with this family and remains on the record in these proceedings.

[78] Despite the involvement of the CCAS it is not denied that, from the date the child was apprehended, the child was only in the care of the catholic agency, for less than a month.

[79] Except for that single month, and now for over three years, the child has been in the care of her maternal grandmother who is a non-Catholic, but a Christian. The evidence supports that during the short one month period that the child was in a CCAS foster placement there were no religious education or influences on the child. Thereafter and once the Ottawa CAS took over the supervision role, the CCAS played no active part in the supervision of the child or the family. Other than the CCAS having carriage of the legal proceedings, the CCAS exercised no influence over issues of religion or religious practices for the child or her family.

[80] It is not disputed that since the child was placed with the maternal grandmother, while the CCAS continues its involvement in the legal proceedings, it is the (non-Catholic) Ottawa CAS that has control and supervision of the file.

[81] As a result, I agree with the trial judge in her ruling of April 1, 2016 that the CCAS role in these proceeding is that of a “conduit” for the case and nothing more.

[82] On April 5, 2016, the trial judge made the obligatory finding, pursuant to s. 47(2) of the CFSA that the child, M. is Christian, and not Catholic.

[83] The CCAS agrees that since at least, August 2013, it has been sensitive to the religion issue. In August 2013, Waldman J. (“the case management judge”) endorsed that the file should be transferred from the CCAS to the CAS. However, since that endorsement no such steps were formally taken. When the matter returned before the case management judge in November 2013, she noted “Ottawa CAS has indicated that they will accept the transfer”. On August 26, 2014, when the matter came back before the management judge and it was apparent that the transfer did not occur. Given the complexity of a transfer, the trial management judge did not think it appropriate as it would unduly delay the trial. The trial management judge endorsed:

Given the fact that this appeal is pending, that the case is otherwise ready for trial, once the appeal is determined and if the appeal is not successful the disclosure is provided, and the fact that the religious affiliation of the agency does not impact on the child because of her placement and the agency supervising and the complexity of the litigation I am not prepared at this time to consider a transfer … I urge mother to allow this case to proceed to trial as the quickest way to have all of her issues considered.

[84] Thereafter, the appellant did not pursue a transfer application until it was raised in this appeal. I accept the CCAS position that given that all that was going on in this file, the CCAS did not seek to transfer.

[85] When the hearing of the appeal was set down in this court, the appellant raised the religion issue. Kiteley J. in her endorsement of October 28 noted that in this appeal the appellant brought a motion to transfer the file which the appellant withdrew. In denying the transfer, Kiteley J., endorsed that this appeal should proceed without delay and found that there was not breach of s. 86 of the CFSA. It was then noted that the child was in the care of her grandmother who is of the same religion, Pentecostal and that the child protection agency now involved is the non-denominational Ottawa CAS. The appellant did not appeal the ruling of Kiteley J., but proceed to perfect the appeal.

[86] Had the file then been transferred to the Toronto CAS during the course of this appeal, without a doubt, that transfer would have significantly complicated and delayed the hearing of this appeal.

[87] In Catholic Children’s Aid Society of Toronto v. S.R., 2005 ONCJ 204, [2005] O.J. No. 2577 (O.C.J.), a motion was brought to transfer a case from the Catholic to a non-denominational agency. In dismissing the motion, R.J. Spence J. prioritized the best interest of the child and a resolution of the matter over granting the motion. In this case, while the motions and trial judges were aware of the religious issue, the best interest of the child dictated that the matter proceed without further delay.

[88] For the reasons as expressed by Kiteley J. in her endorsement, I find that neither the child’s nor the appellant’s religious rights or freedoms are in breach by the CCAS having carriage of this file.

[89] I therefore find that there has been no infringement of the appellant’s or the child’s religious Charter rights with the CCAS having carriage of the matter.

(3) Custody to the maternal grandmother with access

Overview

[90] The appellant submits that the Trial Judge erred in making the custody order and in granting her limited access at the discretion of the grandmother. It is alleged that the Society, the grandmother and the OCL fail to recognize the importance of the appellant’s role as the child’s mother. The appellant also argues that the limited access order was made without rational reason and against the wishes and best interests of the child.

[91] In the granting of the custody/access order by the trial judge, the appellant takes issue with the fact that the decision was made without her participation in the trial process. It must be remembered that the appellant withdrew from participation in the trial when the second request for an adjournment was denied. Even though the appellant did not participate in the trial, it is clear from the transcript that the trial judge had and considered at length the appellant’s pleadings and her plan of care for the child. The trial judge found the appellant’s plan of care for the child was not realistic and lacked credibility.

[92] It is also important to note that the placement of the child with the grandmother, when originally made, was supported by the appellant. Apart from the first month when the child first came into care, the child has been in the care of the appellant’s mother, the grandmother since 2013.

[93] The trial judge considered the evidence that resulted in the apprehension of the child in 2013 from the care of the appellant, her mother. The concern of the Society for the well-being of the child has not changed in the period that the child has been with her grandmother.

[94] On this appeal, the appellant has not demonstrated any evidence or legal basis to support the proposition that the trial judge made an overriding and palpable error in the custody or in the access order. As submitted by counsel for the Society, the appellant makes statements about the positive quality of her visits with the child and the child’s preferences which are not supported by other evidence other than her own.

[95] When the child came into the care of the grandmother, the evidence does support that the child then expressed a wish to return to the appellant. With the passage of time, however, and evolution of her care, the evidence at trial, and upon which the trial judge based her decision was that the child wanted to stay with her grandmother, “forever”. The trial judge relied on the wishes of the child, as advocated by the Children’s Lawyer that the child “didn’t want anything to change, and that she loved her school.” As recently as June 2016, the evidence of the CAS social worker is that the views of the child have not changed. The child's preference is to remain in the care of her grandmother.

[96] Since the child came into care of the Society, the appellant has had access and the child knows the appellant as her mother. Although the appellant lived in Ottawa for a period of time after the child was placed with the grandmother, she has since moved back to the Greater Toronto Area. The appellant made an effort in maintaining contact with the child, including, at one point in time, maintaining two residences so that she could see the child frequently and regularly. The evidence at the trial was that the visits were, however, problematic. The appellant failed to observe timelines and terms of access so that the child was upset by the appellant’s actions. The evidence also supports that there were very significant gaps when the appellant did not see the child not only as a result of her incarceration, but given other personal issues.

[97] The appellant has expressed that she would like to have fixed regular access. The uncontradicted evidence on this point is that given repeated breaches of the terms of access by the appellant only “access at the discretion of the grandmother” serves the best interests of the child. The evidence supports that the unpredictable behaviour of the appellant during her access causes stress, instability and upset to the child and the grandmother who then has to deal with the resulting consequences.

[98] The appellant alleges “parental alienation” by the grandmother as a reason for seeking a change from the existing arrangement of “access in the discretion of the grandmother”. There is, however, no evidence of alienation or to support that the grandmother is not acting in the best interests of the child. In fact the evidence at trial, and which the trial judge accepted, is that the grandmother encourages and desires the child’s contact with the appellant consistent with the child’s expressed views and her best interests.

Findings of Trial Judge

[99] I find no error in the disposition of the trial judge. Nor can I find that it was an unfair or an unjust result. The decision was balanced, carefully considered even though the appellant withdrew from participation in the trial. The decision was child focused.

[100] The trial judge was, I find, well aware of the appellant’s desire to have the child returned to her care, or, alternatively, aware of her wish to have increased specific access. The trial judge had before her and referred to the position of the appellant’s in her “three times amended Answer” and in the appellant’s Plan of Care. In the review of the evidence, the trial judge considered the best interests of the child.

[101] According to the evidence at trial, the child is thriving and doing well in all respects in the care of her maternal grandmother.

[102] By contrast, when the child was in the care of the appellant, the child exhibited behavioural difficulties in socializing with her peers and other difficulties. In the care of the grandmother, the child has settled and stabilized. The trial judge found that unlike the appellant, the grandmother works cooperatively and hand in hand with the CAS to address the needs of the child. As an example, the grandmother had the child assessed by a psychologist so that her specific emotional and learning needs could be identified. The child was found to be learning disabled and suffering Attention Deficit Disorder. In the care of the appellant, the child either did not attend school or was changing schools frequently. In the care of the grandmother, she attends the same school with a solid attendance record. The grandmother has arranged additional tutoring to assist M. with her learning disability.

[103] The grandmother has fully cooperated with the CAS and its recommendations in helping the child. The grandmother was found to have addressed the child’s needs so that in the grandmother’s care the child is doing well academically and socially.

[104] At trial and on this appeal, the child is represented by the Children’s Lawyers. The trial judge considered the law very carefully with respect to the admission of the child’s views and preferences through the Children’s Lawyer. The trial judge correctly referred to and relied upon R. v. Khan (1990), 1990 CanLII 77 (SCC), 59 C.C.C. (3d) 92 (S.C.C.) in considering the child’s views and preferences as put forward. Once the threshold of necessity was determined, the trial judge considered the reliability of the evidence.

[105] The trial judge accepted the evidence of the CAS workers and witnesses whom she found have no vested interest in the outcome of the case and no motive to fabricate or mislead the court in relation to the child’s expressed views. From the evidence, the trial judge was also satisfied that there was not suggestion that the child was coached in the expression of her views and preferences to make a particular expression to the workers.

[106] The appellant argues that her Charter rights were violated when the matter proceeded to trial and where she was not heard. I cannot make such a finding. This was a trial in which the appellant could have participated and one that she knew several months in advance was set to be heard. She had to be, or should have been, prepared for it. Instead, the appellant dismissed her counsel and then withdrew from participation in the trial. The decision was one she alone made. There is no evidence that her counsel would not continue to act for her. In fact, his evidence was to the contrary, that he would have continued as counsel at the trial when the adjournments requested were not granted.

[107] Accordingly, I cannot find that the appellant’s Charter rights were infringed by the trial proceeding.

(4) Ineffective Counsel

[108] The ground of ineffective counsel is withdrawn. However, given that it was a ground of the appeal of the appellant and argued as such, it bears some attention as some of the evidence impacts on the other grounds of this appeal. The intervenor hired counsel and filed an affidavit in response to the allegation that his representation was ineffective. He attended on the hearing of the appeal and his counsel made oral submissions.

[109] Until the appellant withdrew the ground of ineffective counsel, she alleged that she was not properly represented when the adjournment of her trial was sought. Having put the solicitor’s professional conduct into question, she has waived the privilege with respect to her communications with her counsel so that the evidence of her lawyer is before the court.

[110] While I do not need to address this ground of appeal further, I must however address the “fresh” affidavit evidence filed by the appellant since this appeal was argued.

[111] As set out above, in the appellant’s affidavit sworn on September 28, 2016, she states that her former counsel was not able “to do his job” because she was incarcerated. The appellant argues her counsel was not able to prepare her for trial and to deal with new evidence. The appellant also argues that her former counsel did not have the opportunity to create new materials for the trial.

[112] The evidence of the intervenor in his affidavit affirmed September 9, 2016 contradicts the appellant. His evidence is that he was well prepared and trial ready in April 2016. The intervenor attests to countless collect calls to the appellant in an effort to direct her attention to the upcoming child protection proceeding. The intervenor’s evidence is that he delivered trial preparation materials to the appellant at the institution which the appellant then refused to request from the staff.

[113] If counsel for the appellant “was not allowed to do his job”, as is submitted by the appellant, it was, I find, because his hands were tied by the instructions or lack of instructions from his client and her unwillingness to cooperate with him given the timelines set by the court.

[114] I find that the intervenor made every effort to communicate with and prepare the appellant for her trial. Instead of proceeding to trial, the appellant terminated his services and then withdrew from the trial. The appellant failed or refused to cooperate with the intervenor and then withdrew from the trial. Sadly, the appellant is the author of her own misfortune.

Conclusion

[115] For the reasons set out above, the appeal should be dismissed.

[116] It is unfortunate that the appellant chose to not participate in the trial. However, even if she had participated, given the thorough review of the evidence including the consideration of the position of the appellant and her proposed plan of care, it is highly unlikely the result at trial would have been any different given the significant progress the child has made in the care of her grandmother. While the mother was incarcerated during the early part of 2016, it still did not change the focus of the trial which was on the needs and best interests of the child. The trial judge found the interests of the child were best served in the custody and care of her grandmother.

[117] On the issue of access, given the conduct and behaviour of the mother, in order to best serve this child, the trial judge found access must remain at the discretion of the grandmother so that the appellant cannot undo the significant progress this child has made in her grandmother’s care and control.

[118] In the end, the appellant has not demonstrated any palpable or overriding error in the result or in the decision of the trial judge. As such, this case does not require a new trial as requested by the appellant.

[119] Now that the child is in the custody of the appellant’s mother, if there is a material change in circumstances the appellant may bring an application based on any such change.

Costs

[120] If there are any further submissions on the issue of costs, submissions may be made in writing by December 30, 2016, failing which there will be no order as to costs.

E. Kruzick J.

Date: December 1, 2016