WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication. — The court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., 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.

(8) Prohibition: 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) Idem: order re adult. — 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.

85.— (3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)( c ) or subsection 45(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 FILE NO.: FS-1017-15 DATE: 2017-02-09 CORRECTED DATE: 2017-09-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Children’s Aid Society of the Regional Municipality of Waterloo AND: C.T. and J.B.

BEFORE: The Honourable Mr. Justice G.A. Campbell

COUNSEL: Jeffrey W. Boich, Counsel for The Children’s Aid Society of the Regional Municipality of Waterloo Catherine Bellinger, Counsel for the Ontario Children’s Lawyer Julie Kirkpatrick, Counsel for C.T. Katherine Hensel, Counsel for J.B.

HEARD: January 31, February 1, 2 and 9, 2017

Corrected decision: The text of the original judgment was corrected on September 5, 2017, and the description of the correction is appended.

ORAL REASONS

A. Introduction

[1] The child welfare system in Ontario is broken. The patchwork of child welfare legislation spread across Canada is not working.

[2] One only need glance at any newspaper or T.V. news report to recognize that the present systems in place designed to protect Canada’s children is failing the most vulnerable of our population. We have had a Truth and Reconciliation Commission and now the Murdered and Missing Indigenous Women enquiry to try to retrospectively figure out how we as a society have failed our indigenous citizens.

[3] Alex, an 18 year old in B.C., after 17 placements over 11 years, killed himself because he knew that at 19, when all of his supports would have been terminated, he did not have the skills to be able to survive.

[4] Young teenagers (children really, in newly developed adult bodies) are warehoused in motel rooms in Winnipeg and Vancouver because there are not enough Foster parent homes or group homes available anywhere in Canada that can meet the volume of children in care.

[5] Aboriginal children “rescued” from intolerable living conditions on reserves and inner cities are removed from their parents, their community and their culture and set up as best can be provided, usually with non-aboriginal families but when living in hotels in large cities become easy prey for the predators that seek them out … and these needy, damaged teens are easy to identify and exploit.

[6] In Ontario, delay from apprehension to a decision after trial has become so normal and children “languish in legal limbo” for so long that few of the participants in the process (except for Appeal courts) even bother to mention how long in care the child(ren) have awaited some degree of permanency in their lives.

[7] All participants in the process are overwhelmed with the volume, and are ground down by the complexities of the process and myriad of good intentions that are embodied in the Legislation.

[8] Significant delay has become the most accurate predicator of the outcome of most child welfare trials.

[9] A child’s best interests and keeping families intact and intervening only when absolutely necessary and with the least intrusive intervention have all been trumped by the inexorable reality of delay that result from the diverse demands inherent in the system.

[10] The process is underfunded, overworked and unintentionally abusive to all of its participants. The expectations and timelines set by legislation are entirely unrealistic in today’s plurastic society.

[11] Agency social workers are overwhelmed by case-load and the demands of them imposed by the legislation and by the complex problems that their multiple families and children present. The challenges are insurmountable.

[12] The OCL is facing a tidal-wave of requests and is so overwhelmed that panel lawyers are often rushed into a case at the last hour and cannot possibly perform their duties adequately before expected to participate meaningfully on behalf of children embroiled in a process that need their skills and training.

[13] The few private counsel that will even act for parents (and the list is a very short one in each community) are so overwhelmed with demand that they have little, if any, time to prepare, to interview and listen to their usually disadvantaged client and only rarely have the luxury of time to develop responding evidence/witnesses to challenge those of the government Agency that has been both supporting their client AND collecting evidence to be tendered against that very person in court, long before they are retained.

[14] Judges and the administration of the courts scramble to create adequate space to expedite a trial and to continue the trial in a timely manner with at least one eye on the legislated timelines. In reality, too few judges for too many cases “cooper up” some days here, more days there, usually, months later when they can fit the trial into their already overwhelming schedules. Writing a decision that will affect a child forever is left to a time when space miraculously appears, often months after trial.

[15] After R. v. Jordan, I am told that locally the 2 full-time family judges in the O.C.J. that used to get some relief from a few of their colleagues servicing the demands of the criminal process, will now be expected to carry the entire load of the child welfare and family custody and child support cases on their own without those ‘extra’ judges who will now need to ensure that the criminal trials and preliminary hearings meet the new deadlines. What was earlier an incredibly challenging responsibility before Jordan, has now become an entirely impossible task.

[16] This “Perform Storm”, all participants trying to do what they can in a process that has become entirely unworkable and abusive, has been building for years.

[17] In this case, but one example of a broken system, the parents and K. have been consumed and trampled by the Frankenstein process we have created and allowed to become unmanageable.

[18] Mr. B. and Ms. T, in your fresh evidence affidavits you appear stunned and confused by how the system has treated you and your child. You don’t seem to be able to understand how this could and did happen. Your confusion is entirely understable and although it will offer you little comfort, I apologize to you for the manner in which you have been treated, ignored, demeaned and disbelieved.

[19] It should not have happened. You should have been treated better. It did and you weren’t, and for that, on behalf of the very system that perpetrated this upon you, I apologize to you both.

B. Overview

[20] This very unusual appeal now raises seven issues that require the court’s attention:

1. Incompetence of trial counsel.
2. Miscarriage of justice.
3. Judicial interference, bias and abuse of the trial process.
4. Procedural delay.
5. Access to Crown Ward.
6. Effect of Order for access to Crown Ward.
7. Costs.

[21] At first the Notices of Appeal challenged the entire trial judge’s decision, including the Order for Crown Wardship and the denial of access by the parents to K. Those Notices of Appeal were eventually amended after the trial counsel who were the initial Appeal counsel were replaced or forced to withdraw as Appeal counsel. The present Appeal counsel amended the grounds and the relief sought (on the instruction of their clients) and withdrew the challenge to the trial judge’s findings that supported the Order for Crown Wardship.

[22] Technically then, the appeal now to be decided is embodied in paras. 206 to 211 of the trial judge’s Reasons for Judgment, released on December 15, 2015, the same day as Lang, J.A. made public her report with regard to Motherisk.

[23] Appeal counsel for both Appellants (Mother & Father) also seek a declaratory order regarding the alleged incompetence of both of their trial counsel AND that a miscarriage of justice occurred during the course of these legal proceedings from the apprehension of K. in September 2012 through to and including the hearing of Appeal January 31, 2017/February 1 & 2, 2017.

[24] I do not intend to review all of the circumstances and failures of the court process with which the parents rightfully take issue. But to observe that the administration of justice failed these parents (and more importantly the child K.) is a gross understatement, well beyond the lamentations of Sloan J. and the Ontario Court of Appeal in the case of CMEN v. CAS of R. of W., 2015 ONCA 612, [2015] O.J. No. 4705 – see paras. 30, 31 and 33-35.

[25] The delay in this case, despite the time limits set by s.70 of the Act is well beyond unconscionable. Both trial counsel, Gratl (Mother) and trial counsel to J.B. (Father) were retained by the parents (funded by the Ontario Legal Aid Plan), well before a consent finding in need of protection was made in May 2012. Despite those findings K. remained in her Mother’s care until the erroneous hair follicle testing of the mother and child by Motherisk in September 2012. K. was immediately apprehended based entirely on that now totally discredited drug testing conducted by Motherisk.

[26] Throughout those early days of the proceeding, Mother repeated to anyone who would listen (and few did – including her own counsel) that:

(a) she had native heritage, thus so did her daughter; (b) the drug tests were wrong and that she was not using cocaine.

[27] Her counsel ignored those assertions and took no steps whatsoever to bring any motion before the court, or to get competing drug tests to challenge the Motherisk test results, in order to give the court evidence that would allow the court to reconsider the circumstances of the apprehension or to comply with s.57(4) community placement, least disruptive alternatives, s.57(3) or with s.57(5) where a child is an Indian or native person, with a band or native community or s.51(3.1) placement with relative.

[28] Indeed, the temporary consent order that itself contained errors (“child of no native heritage”), see s.47(2)(c) sat unchallenged from May 30, 2012 until the trial started July 21, 2014, well past the s.70 timeline imposed by the Legislation.

[29] The 14 day trial proceeded intermittently over 8 months:

• 5 days July 2014
• 3 days September 2014
• 4 days November 2014
• 1 day December 2014,
• followed with 3 days in March 2015.

[30] The decision was reserved on March 17, 2015. Almost nine (9) months later on December 15, 2015, he trial judge released her 211 paragraph written reasons, almost 3.5 years after K. was wrongly apprehended.

[31] This passage of time is not only entirely unacceptable, it is reprehensible and cannot be justified or excused on any credible basis.

[32] This abuse of process was further exacerbated in that during the hiatus between mid-March 2015 and the release of the trial judge’s decision in mid-December 2015, the child was moved from her first 3 year foster placement (where she’d been since apprehension in September 2012) to a new “foster placement-with-a-view-to-adoption “without notice to either parent, the OCL or any of their counsel. Despite this reality (the first foster mother gave notice before the trial that she intended to retire in June 2014, thus the need for a replacement) was disclosed at trial and canvassed with the first foster mother in some detail. K. has remained at that “new” foster/adoption placement. Since the end of June 2015 – now over 19 months and she still has not been “free” to be placed for adoption with that second foster mother.

[33] I have no evidence that despite extensive attention given at trial to the circumstances and unreliability of the Motherisk testing (including a mid-trial. private conference amongst three counsel and the trial judge), no counsel for either Mother/Father, the Agency nor the OCL moved to have child placed/returned to Mother or any other of the legislated alternatives, nor is there any evidence that despite what should have been patently obvious to anyone paying any attention (including the trial judge) to the child’s native heritage, the Agency paid any attention to s.57(2)(3) less disruptive alternative, (4) community placement or (5) child Indian/native shall place the child with a member of extended family/child’s band/native community OR another Indian or native family, or that any counsel/party, the OCL or the trial judge even considered the obligation to consider those options.

[34] Actually, based upon the early May 30, 2012 consent findings/order, the trial in 2014/2015 was a S.R.A. pursuant to s.64/65 of the Act. But I find that the principles/protections included in the Act, especially those in s.1(2) Paramount Purpose

• to support autonomy and integrity of family – least take/impose the disruption available;
• to provide services that recognize continuity of care and stable relationships within child’s cultural environment inter alia spiritual, early assessment and cultural needs of child and planning participation of child/parents/relatives/extended family and community entirely ignored.

[35] Basically, once Motherisk tests were received in and accepted, the Agency took decision/position that the only reasonable result was for Crown Wardship and it passively acquiesced to the delays that ensued and to which court contributed and exacerbated. The status quo created by delays eventually dictated a reality that all participants recognized, acknowledged and accepted.

[36] The status quo made the decision – the passage of time predicted the result. This is not how the legislation was intended.

[37] Neither counsel for Mother or Father did anything at all to ameliorate or avoid that inevitable result – their passivity and inattentiveness to instructions and their unwillingness to even consider registering an objection to the process effectively sabotaged their own client’s rights and protection as provided by the Act.

[38] Indeed, except for serving and filing generic Notices of Appeal within the week of the decision being released, neither counsel sought by simultaneous Notices of Motion to seek an order to continued access between the parents and the child pending the Appeal Hearing. Neither counsel ordered transcripts of the trial, nor does the evidence support that either counsel sought approval from their funding source (Ontario Legal Aid Plan) to order those transcripts. Indeed, counsel appeared in S.C.J. on March 18, April 29, May 19 and May 27, 2016, all the while when confronted assure the presiding judge that all was proceeding apace and that no prejudice was occurring. Nothing could be further from the truth!

[39] The Appeals had not been perfected by the last date and Flynn J. allowed then counsel a further period of time (until June 6, 2016) to perfect the Appeals and order the transcripts and in default of compliance, both Appeals were to be dismissed as abandoned. Indeed, as early as the first attendance in S.C.J., on March 18, 2016, Taylor J. ordered that the transcripts were to be ordered by counsel by April 29, 2016. They were not. On April 29, 2016, Ms. Gratl didn’t even attend. Trial counsel to J.B. spoke for both and assured the court that matters were proceeding. Taylor J. again ordered the transcripts to be ordered by May 27, 2016, or in default the Mother’s appeal was dismissed. Trial counsel to J.B. was also to perfect Father’s appeal by May 27, 2016. Evidence now shows that the trial transcripts were not in fact ordered until July 6, 2016 by the new counsel.

[40] In the meantime, Father’s counsel had filed a generic Notice of Appeal and Certificate Respecting Evidence, both dated January 12, 2016, with no counsel shown on the documents as representing him, despite trial counsel to J.B. appearing in court as his counsel on March 18, April 29, May 19 and May 27. This is beyond curious. She never brought a motion for access to the child by the Father (her client) at any time after the December 15, 2015 decision. As a result, the Father has not seen the child now for over 13 months. Mother has not seen the child since July 2015, some 18 months ago.

[41] On May 27, 2016, as well as the terms of his Order with regard to perfecting the Appeal to ordering the trial transcripts by June 6, 2016, Flynn J. set a “conditional” hearing date for the Appeals for July 25, 2016 (one day!) was allowed on the advice of counsel. Totally unrealistic.

[42] On July 21, 2016, Mother’s new counsel, Ms. Kirkpatrick (erroneously referred to as Ms. Fitzpatrick by Broad J. in his endorsement) brought a motion inter alia to adjourn the July 25, 2016 hearing and to be allowed to amend and restart the appeal and to remove trial counsel to J.B. as counsel for Mr. B. (Father) due to her incompetence.

[43] For written reasons, Broad J. declined to adjourn the Appeal hearing date (4 days hence) and adjourned the balance of the relief sought in the motion to the Appeal Judge.

[44] On July 25, 2016, five counsel attended. (Strangely enough, trial counsel to J.B. was still counsel of record for Father, despite the Mother’s motion for her to be removed, based upon the allegation of her incompetence at trial and subsequently.)

[45] Sloan J. adjourned the Appeal hearing to September 29, 2016 and identified that Ms. Russo (OCL) and trial counsel to J.B. had (that day) withdrawn as counsel for the OCL and for Father. He then made several procedural orders including allowing the parents to file amended Notices of Appeal, set timelines and gave directions with regard to Facta/Exhibit Books/Books of Authorities and the like.

[46] As a result of the Sloan J. July 25, 2016 Order on August 11, 2016, Father retained Ms. Hensel. Upon the return of the Appeal for a hearing on September 29, 2016 before Braid J., the parties/counsel all agreed to adjourn the hearing to allow them to avail themselves of the Aboriginal Alternative Dispute Resolution (AADR) process. Braid J. seized herself as case management judge and set further timelines for various events, and the service of documentation to occur, including the need (or not) to give notice of the proceedings to an Indian Band and The Agency undertook to give notice of new hearing date to the new foster mother M. (who by then had had K. in her care for 14 months (see s.39 (3) of Act).

[47] The matter was adjourned to November 25, 2016 before Braid J. to manage the appeal hearing and to report to her on the AADR process and to set a date for the Appeal Hearing.

[48] All parties attended (Ms. Kirkpatrick, agent for Father’s counsel Hensel) on November 25, 2016. Braid J. observed that “This matter has not progressed as far as I had directed by this date”. She then endorsed eight (8) terms of timelines for further events/service of documentation to occur and set the Appeal Hearing for “2 full days” on January 31, February 1, 2017. She allowed for cross examinations if completed by December 31, 2016 – AADR efforts were to continue. No party/counsel availed themselves of cross examinations.

[49] The Appeal Hearing proceeded as scheduled before me on January 31, February 1 & 2, 2017.

[50] I was advised during the submissions that despite the Appeal Hearing proceeding as scheduled, the AADR process was also still “continuing”.

[51] At the Appeal Hearing, on consent, I was given two papers by Ms. Hensel, which papers I have read and considered:

1. Tragic Choices and the Division of Sorrow – speaking about Race, Culture and Community traumatization for the lives of children by (now) Professor Hadley Friedland found in (2009) 25 Canadian Journal of Family Law 223-256; and
2. a chapter from “Putting a Human Face on Child Welfare: Voices from the Prairies”, a text published in (2007), “On the Matter of Cross-Cultural Aboriginal Adoptions”, written by Kenn Richard.

[52] I was also given, on consent, by OCL counsel Belinger, a paper written by Elizabeth McCarty entitled “Openness to Access in Ontario” dated November 21, 2016, presented at the Ontario Bar Association conference entitled “Advanced Issues in Child Protection Law.

[53] At the outset of the Appeal Hearing, I ruled on the several motions seeking to file further evidence. I allowed affidavits by each parent, three from the Agency, including one from the “new” foster mother (M.) and one from the child K.’s ongoing therapist, as well as evidence of post-trial decisions and interviews with the child and M. in July 2016 by Todd Perreault, an experienced and qualified member of the OCL’s clinical panel.

[54] In coming to my decision, I have relied heavily on this “fresh” evidence, none of which the trial judge had available to her at trial.

Issues

1. Competence of Counsel

[55] If my decision is sought to be reviewed by another court, I reserve the right to expand upon the following areas and the various cases presented, quoted and relied upon by counsel and myself.

[56] Although not tendered by counsel, since it is in the public domain, I examined both the LSUC Standards of the Legal Profession and Regulations, as well as the Advocates’ Society “Principles of Professionalism for Advocates” and “Best Practices”, both of which are relevant to this issue and helpful.

[57] The Advocates Society’s Principles include:

An Advocate’s Duty to Clients and Witnesses

1. Advocates should pursue the interests of their clients resolutely within the bounds of the law and the rules of professional conduct, and to the best of their abilities. Advocates must “raise fearlessly every issue, advance every argument, and ask every question." At all materials times, however, they must represent their clients responsibly and with civility and integrity. The duty of zealous representation must be balanced with duties to the court, to opposing counsel and to the administration of justice.
2. Advocates should be skilled, knowledgeable, capable and competent within the area of law that they practise. They should remain current regarding developments in the law relevant to their practice.
3. Advocates must at all times advise their clients with honesty and condour.
4. Advocates should treat all witnesses with fairness, courtesy and respect, and should not abuse, intimidate or harass a witness.
5. When seeking information from a witness, advocates should avoid deceiving or otherwise misleading the witness and should avoid asserting improper influence over the witness’ recollection of events.

An Advocate’s Duty to the Court

1. Advocates should use tactics that are legal, honest and respectful of courts and tribunals.
2. Advocates should act with integrity and professionalism, maintaining their overarching responsibility to ensure civil conduct in accordance with the Principles of Civility for Advocates.
3. Advocates should educate clients and others about the court processes and promote the public’s confidence in the administration of justice.
4. Advocates should promote the efficient and effective operation of the judicial system. They should not seek adjournments without proper reason and should cooperate with ongoing counsel if achieving the most expeditious and least costs resolution of proceedings.
5. Advocates should not knowingly permit the giving of false evidence or engage in any other conduct calculated to induce the court to act under a misapprehension of the facts.
6. Advocates should ensure that the court is apprised of changes in the law and important judicial authority on the legal questions in at issue in a proceeding.

[59] The affidavits of the Mother and the Father, filed as fresh evidence, which evidence I accept as uncontroverted disclose a litany of complaints about their two trial counsel, including a list both of broad and specific areas of inattention, a lack of preparedness, ignoring instructions, lack of preparation of the client to give evidence at trial, an unwillingness to consult or explain, a lack of the development of a theory of the client’s case, treating the client with disdain and/or ignoring her evidence/instructions, a lack of due diligence to examine case notes or the “Maybe Days” adoption book, not objecting in court when appropriate (to the mid-trial secret meeting – or reporting to the client what occurred in the meeting), not objecting to Ms. Russo giving evidence from counsel table upon which the trial judge relied – see: Jewish Family & Children Services of TD v. JK (2014), not investigating or calling direct evidence from the mother’s doctor regarding her medical marijuana use and her mental health, obtaining a comparison drug test in a timely way to refute the Motherisk erroneous test results or to move to have the court place the child back with the Mother after the Mother did finally obtain a clear (for cocaine) drug test (and the child was going to be moved in any event), was disorganized and unprepared, was confrontative and at one juncture of the trial directly “threatened” the trial judge that she intended to appeal. The list of errors and shortcomings are delineated in paras. 25-41 of Mother’s counsel’s factum and are as well as shocking are sufficient from which a finding of incompetence can be based and are.

[60] Both parent’s counsel “dropped the ball” as it applies to Ms. Russo (the OCL representative), giving evidence from counsel table and not having interviewed or even contacted any collaterals; either parent; any of the child’s school teachers or the Mother’s medical doctor (re her medical doctor’s monitored marijuana use). Both counsel should have registered their client’s objection to the cavalier and inadequate approach to this very complex set of circumstances, the delay and the procedural unfairness and non-compliance with the Act of the matter. Neither counsel did or said anything.

[61] Similarly neither counsel did or said anything with regard to the mid-trial private conferences. No objections were registered and both parents aver that at the time neither of their counsel explained what occurred out of their view after the trial. Trial counsel to J.B. wrote a reporting letter to the Father explaining that she was so unsettled by whatever occurred behind that closed door (out of the presence of the parents) that she was “too shocked and shaken to say anything”! That is unacceptable behaviour in an advocate and shows that trial counsel to J.B. was not up to the task to “vigorously advocate” for her client. She did not then, nor did she throughout the trial, “zealously represent” her client’s interests. This is especially true as it applies to the Father’s native/indigenous heritage. She ignored that aspect of the matter entirely and apparently passively acquiesced, almost as a spectator, to the ongoing and escalating incivility between Ms. Gratl and the trial judge.

[62] The transcripts appear to show that both parent’s counsel had no plan/nor any or much preparation to do anything positive for their clients, other than cross-examine (at length) whatever evidence the Agency brought forward. The overall picture appears that both counsel effectively conceded the result because of the procedural delays and the status quo that had been established. Neither counsel objected to the long delays between bursts of evidence for a few days in July 2014, then September 2014, then November 2014, then December 2014 and March 2015. Neither counsel ever even mentioned s.70 of the Act.

[63] Present counsel for both parents raise many examples of trial counsel’s incompetence and inadequate attention to (and active representation of) their clients’ rights and cases - Father’s appeal counsel sets out various instances of this, in her factum at paras. 6-12, inclusive – all of which I accept and which the transcripts (and their client’s fresh evidence affidavits) confirm. Both the Father and the Mother were inadequately represented by incompetent counsel as defined by the LSUC Rules.

[64] Counsel for the parents have cited several cases with regard to ineffectiveness of counsel, portions of which cases I have read and considered, including:

• R. v. Archer (2005), at para. 119 – the three part test that needs to be met to quash a conviction on basis of ineffectiveness of counsel.
• D.W. v. White 2004 (OCA) – additional two factors before Appeal court can overturn trial judge.
• CC v. N.S., Minister of Community Services (2015), case.

[65] On all of the evidence before me and after applying the case law and the LSUC and Advocates’ Society Rules/Principles, I find that the parents were inadequately represented by incompetent counsel.

2. Judicial Conduct of/in Trial, and Integrity of Trial Process

[66] Counsel for the mother has also submitted a number of cases that pertain to trial fairness/impartiality of the trial judge/demeanor, words or actions of trial judge. See paras. 73 -83 of mother’s factum, which I have read and with which I agree with, including:

• Conforti v. Conforti – OCA
• HMQ v. Poulos (2015) – OCA
• R. v. Simon (2010) – OCA
• R. v. Schofield (2012) – OCA
• CAS of Region of Waterloo v. CM (2003) – OSCJ
• R. v. GDB – (2000) – SCC
• Moreau-Berube v. NB (Judicial Counsel) 2002 – SCC
• R. v. RDS (1997) - SCC

[67] Both parent’s counsel cite various examples of inappropriate judicial conduct and bias throughout the 14 day trial and the mid-trial off-the-record conference (that so shocked one experienced trial counsel that she was rendered mute!) of the trial judge trying to assert control over Ms. Gratl, as well as occasions of unsolicited, casual, threatening or sarcastic comments to those present, including counsel and the parents. See paras. 17-20, inclusive, of Mother’s factum. The not so subtle messages for the trial judge cited at paras. 19 & 20 of the Mother’s factum, I believe, would convince any litigant (or any observer of the whole trial) that the trial judge was:

(a) antagonized by Mother’s counsel; (b) angry at how long the trial was taking; (c) suggesting both directly and indirectly that “someone” might have to “pay costs” if things didn’t change; (d) was disbelieving of much of what the Mother and Father had to offer (didn’t use cocaine/was indigenous – hearsay!); (e) had already decided the outcome of the trial “they should be grateful …”, “it’s a waste of our time” … “what cloud are you living on?”, telling Mother’s counsel to “just sit down”; and (f) as Mother’s present counsel argued, it was not just the trial judge’s words but the tone of those words and her demeanor that caused the parents to despair and conclude that trial fairness was not occurring.

[68] Having read the transcripts of these and other interactions between the trial judge and (mostly) Ms. Gratl, it would appear to me that Ms. Gratl’s “style” of advocacy – i.e. her “manner” of advocacy, continuously baited and exasperated the trial judge. Unfortunately, the trial judge rose to the bait. The other trial counsel (for Father) was intimidated into silence. By the time of the trial she had been a regular attendee in court and an advocate experienced in the ‘rough & tumble’/adversarial confrontative trial process. If a trained advocate was so shocked by the trial process, it is an easy and obvious conclusion that the parents would have recognized that the trial process was stacked against them and that it was unfair biased against them and that they stood no chance of succeeding in anything they sought.

[69] Whether the test of trial fairness is an objective one or a subjective one, on the evidence before me, I find that the trial process was unfair, unjust and skewed against the parents. The integrity of the administration of justice was compromised by this trial and brought into disrepute. Both parents had good reason to have formed a reasonable apprehension of bias. They realized that they didn’t have a fair hearing of the issues.

[70] As Mr. Boich correctly described this case to me, the trial process became a ‘Perfect Storm’ of errors, incompetence, institutional oversights and mistakes (Motherisk,), late appointments/assignments of responsibilities, a lack of due diligence of the parents and the OCL counsel, the Agency not complying with s.70 timelines/ the indigenous to native issues/court and judicial resourcing overwhelmed with volume/demands of too many cases/too few judges and an obvious personal and professional antipathy between Mother’s counsel and the trial judge – all contributed to delay and the creation of a status quo of a child in legal limbo from September 2012 to January 2017. 4 years.

3. Miscarriage of Justice and Effect of Delay

[71] Despite finding and declaring that the integrity of the trial/court process was breached and impeached, in light of the parents withdrawing their appeal of the Crown Wardship finding/order, I am unpersuaded that there was a complete miscarriage of justice that can be addressed by way of any relief presently sought, other than a finding of incompetence of counsel and a declaration that the parents (and the child) were inadequately represented.

[72] I have considered the three part test set out in KR v. CAS (2015), Ont. Div. Crt – as confirmed in Windsor-Essex CAS v. RHC, 2016 – OCA. Although I am persuaded that counsel for the parents were both ineffective and incompetent and that their efforts (of lack thereof) did indeed “undermine the appearance of fairness of the trial”, even the parents (who’s rights were abused and their assertions and evidence ignored, demeaned and disbelieved) recognized that the trial judge was probably correct in December 2015, in confirming K’s placement in care. That, by then, too much time had passed and too much emotional damage might be inflicted on the child if permanent placement was not confirmed with a view to adoption and the child were removed from care and placed with either parent or any of the other options still available to the court – community/extended family/native placement, etc.

[73] Accordingly, I am unpersuaded that the “Verdict” (see KR v. CAS) or decision was unreliable or in these circumstances was an overriding and palpable error by the trial judge.

[74] There is no question in my mind that the inordinate and unconscionable delay was the deciding factor that decided the case, as exacerbated by the very poor (beyond any acceptable level) performance of their retainers and obligations by trial counsel (until July 2016).

[75] By any standard, trial counsel did not adequately advocate for their clients and directly contributed to the delay of the Appeal process and by their respective inaction created the reality that neither parent has had any contact with K.

[76] As any informed observer of this entire unfortunate court process would conclude, my conscience is shocked by the abuse of process and the lack of procedural fairness. But to set aside the decision and remit the matter to another trial a “do-over” would damage and threaten the child’s stability even more.

4. Access to Crown Ward – S.59 and S.37 of CFSA

[77] The trial judge devoted only five paragraphs (of 211) to the issue of s.59(2) Access to Crown Wardship. I interpret the wording of her finding that access by K. to her Mother was indeed “meaningful”, but that it was not “beneficial” (as she found at para. 208). She found that access by K. to her Father was neither meaningful nor beneficial.

[78] The trial judge found that any access to either parent would in fact and indeed “impair the child’s future opportunities for adoption”. She identified at para. 211 of her reasons why continued contact between her parents and K. would “undermine” any placement (for adoption) and that at para. 210 she confirms that “there is no evidence that the adoption placement is supportive of access”. No such evidence could possibly be presented since the child wasn’t placed with M. until 3 months after the trial. M. did not give evidence at trial, but apparently during someone else’s evidence at trial a “proposed placement was “raised at trial”. An adverse inference was somehow made by the trial judge because “Unfortunately neither parent took the opportunity to meet the proposed placement”. This whole conclusion is problematic since the decision to place was not canvassed enough at trial and the investigations, considerations and alternatives or other alternative options that may have been available to the Agency were not examined.

[79] I cannot find direct evidence that a clear offer was ever made to either parent directly to “meet” the proposed placement. In their fresh evidence affidavits, the parents deny ever being offer that meeting..

[80] In any event, I have better, more recent, direct evidence from the parents, from M. (the placement) and indirect evidence from the child through Mr. Perrault’s affidavit, upon which I rely and which offers me a more complete picture of K.’s views and preferences and her more recent circumstances.

[81] I am well aware of the Standard of Review on Appeals. The case law is well settled and I reviewed the area in my decision in Van Wieren v. Bush (2015), ONSC 4104, copies of which I made available to Appeal counsel. At the time of the trial and on the paucity of evidence on this issue (access) before her (the trial judge chose not to avail herself of her authority by way of s.49 of the CFSA), the trial judge may well have been correct.

[82] The s.59(2.1) test for access to Crown Ward is conjunctive. Regardless whether the trial judge found that access might be meaningful and beneficial to the child, (she did not make that finding) without that access also not “impairing” the child’s “opportunity for adoption” a finding that it was meaningful and beneficial is useless. Without finding that the third factor had also been met, two of the three insufficient. The trial judge “shall not make” an access order unless all three criteria are met. They were not met and the trial judge’s order was correct … then. Now, however, I have evidence that K. desires, expects, hopes and prays for contact with her (both) parents. She also wants M. to adopt her.

[83] On the evidence now before me, I find that in fact contact/access between/among K. and her parents both is both meaningful AND beneficial to K. Her entitlement to explore her heritage and her culture (as guaranteed by the Act) has been overlooked/thwarted and frustrated by the ineptness of K.’s parent’s and her trial counsel. That is wrong for so many reasons (see the two papers made available by Father’s counsel, Ms. Hensel). However, in her affidavit (at para. 16), and as late as the last day of the Appeal hearing, M. has clearly, unequivocally and in an unambiguous sentence asserted that she will not proceed with adopting K. if there is an order for access/contact/openness.

[84] The child (now age 10) clearly and emphatically wants both – contact and adoption. I find that it would be and is in her best interests that she have ongoing contact with her parents AND that she be adopted by M. I find therefore that the legislation is internally inconsistent; namely that s.59(2.1) and s.37 are in direct conflict and there is no clear priority of one section over the other and no direction how to overcome that impasse.

[85] As long as M. refuses to allow openness/access/contact in any way between K. and her parents, it would appear that the absolute bar provided by s.59(2.1)(b) invests a “veto” power in M. that cannot be overridden, despite any findings that both contact and adoption are in K.’s best interests (as per s.37(3) and (4) and s.1(1) and (2) Paramount and Other Purposes of the Act).

5. The Pathway Plan

[86] When I challenged counsel with this dilemma and sought assistance with which conflicting “best interest” need of the child (contact or adoption), I should sacrifice, after extensive submissions regarding ss.141 and 145 of the Act (adoption and application for openness), Ms. Kirkpatrick ingeniously devised a “Pathway Plan” through the legislative labyrinth. She proposed that I order “access” (I prefer to call it “contact”) to each of the Mother and the Father AND to K., so that each has a right to access and hence each is entitled to notice of the Agency’s intention to place for adoption (s.145.1.1(2). As a result, each of those three people (per s.145.1.2(1)) could apply to the court for an Openness Order Hearing.

[87] All four counsel appear to agree with the technical “pathway” through these sections in order to circumvent the s.59 2.1(1) v.s. best interests challenge. Further, to protect M.’s present position, counsel encourage me to make the access/contact order but to stay its enforcement/implementation pending an Openness Application/Hearing at which all parties, including M. (the present foster and future adoptive mother), may participate. M. is apparently entitled to notice of such an intention to place for adoption and an Openness Application AND that despite being served with an Openness Application, the adoption plan/placement may proceed despite my stayed access/contact order.

[88] I expressed some scepticism and could not follow the “path” that all counsel (including counsel for the Agency) seemed to see. I have revisited ss.141-146 of the Act and still have not been able to see the clear “pathway” However, all counsel present at the appeal hearing appear to be ad idem: except for M., who may, if she wishes, retain independent counsel to advise her of her rights and responsibilities as a potential adoptive mother of K. All parties seem to agree that this pathway is legislatively available and will, at least temporarily meet the needs (and wishes) of the child K.

[89] If counsel are correct, the proposed pathway would appear to offer K. a chance (albeit a slim one at present) to extract herself from this confusion, and move towards permancy.

[90] Accordingly, I accede to the proposal and overturn the “no access” order of the trial judge and replace it with a contact order enabling and granting contact between Mother and K., Father and K., and K. and both of her parents. Each of the three is granted an order of contact.

[91] Except for one visit, supervised by the Agency at the CAS, within the next 30 days, between Mother and K. and Father and K., (one right after the other) for a maximum of 30 minutes each, at which visit Mr. Perrault is to attend – either in the room or in an adjoining one-way observation room, my contact order is stayed, pending further or other order of this court. Pictures may be taken during the visit, if K. agrees.

[92] I direct Mr. Perrault to visit K. one time before the above contact visit and one time after the contact visit and to prepare an affidavit of his observations, the child’s views and preferences, her reactions to the visit and any recommendations he might suggest to the parties and to M., within 30 days of that one time visit.

[93] I also direct Mr. Perrault to briefly interview each parent AND M., both before and after the visit and to include his observations of those interviews and recommendations his, if any, in said affidavit.

[94] Counsel have encouraged me to seize myself of the Openness Hearing. The jurisdiction/authority to do so in a non-U.F.C. region was argued. I again accede to the request.

[95] My particular personal patent appointing me a Justice of this court (and ex officio of the OCA) dated August 24, 1995, invests me with dual federal/provincial jurisdiction as a U.F.C. (Family Branch) Justice. I intend to avail myself of my dual authority to act as a trier at first instance of the Openness Application Hearing, which I hereby set to commence May 15, 2017 at 10:00 a.m. I will set aside 4 days for this hearing.

[96] In that regard, I direct the following:

(a) The Agency verbally expressed through its counsel on February 2, 2017, its intent to place the child K. with M. for adoption. No Indian band nor native community has been identified by the parties as having an interest in these proceedings. (b) All four counsel are directed to forthwith hold a telephone conference call to consider and resolve whether s.141.2 needs to be addressed and to sign a consent whether or how that part of the Legislation is to be complied with. The parents are to each be consulted or to participate in that telephone conference call. (c) The Agency counsel is to forthwith serve each other counsel and M. with a formal written confirmation of its verbal Notice to Place, by FAX or email, and such shall suffice as proper notice. Time shall run from the verbal notice given on February 2, 2017. Each party (and M.) who is entitled to notice of and to bring an Application for an Openness Hearing shall within 10 days of the receipt of the above written confirmation of the Agency’s intent t place, serve electronically or by FAX, his/her Application for an Openness Hearing on each of the other counsel and M. and such service shall be good and sufficient service as required by the Rules of Court and the Legislation. (d) All four counsel and M., and/or her counsel, shall participate in a telephone conference call with me on April 3, 2017 at 9:00 a.m. as arranged by Mr. Boich and my trial coordinator’s office (allow 1 hour) to manage the logistics and details of the expected and impending Openness Hearing. (e) Each party shall prepare/serve (by fax or email) and file an affidavit of one witness each, which affidavit shall serve as his/her evidence-in-chief at the Openness Hearing, on or before April 28, 2017 at noon. M. may use her first name only on her affidavit (in order to try to protect her anonymity). (f) The Agency shall choose a primary worker to inform herself of the Agency file and to swear an affidavit setting out the Agency position and the evidence upon which it relies. Mr. Perreault will do likewise (including evidence from child’s therapist if K. is still receiving some from Mrs. Harvey) M. shall also prepare, serve electronically or by FAX and file her affidavit setting out her then position with regard to openness/access/contact. (g) At the hearing, each other counsel (including M.’s counsel, if she so chooses to be represented or to attend the Hearing), may cross examine each/every deponent for up to 60 minutes. The deponent’s own counsel may then re-examine him/her for up to 30 minutes. (h) AADR may continue on its own schedule, unabated.

Costs

[97] In its factum, the Agency formally sought costs of the Appeal, and perhaps (it is not clear to me) may also be seeking to make submissions for an order for costs for the trial as well.

[98] In any event, in light of my finding of incompetence of co-trial counsel, Ms. Gratl and trial counsel to J.B., and as there is a real and serious possibility that any of the Agency/OCL or either parent’s counsel may also seek costs against a government agency as per Rule 24(2) of the Family Law Rules and or against either Ms. Gratl or trial counsel to J.B. or both personally per Rule 24(9) of the Family Law Rules, I direct that each counsel serve formal written notice personally on any person he/she/it intends to seek costs against by way of motion, within 7 days of this date (February 9, 2017) against that Agency, government institution, person or counsel. Of course, Ms. Gratl and trial counsel to J.B., (if notice is given to them), will need time (as is allowed by Rule 24(9)) to retain counsel and/or notify his/her insurer, if she wishes. I will hold a telephone conference call as arranged by Mr. Boich and my trial coordinator, Melissa Cox, on Friday, February 17, 2017 at 2:00 p.m. to manage how (or if necessary) a costs hearing will proceed in person or by written submissions and to set timelines for same/Facta/Books of Authorities, etc. (allow 1 hour for that telephone conference call).

[99] Two last comments:

1. I have intentionally declined to address Mother’s counsel’s submission that her Charter right to an early trial have been breached. I am unpersuaded in these circumstances that without notice to government institutions that such a right exists in law or is not provided her by the wording of the Act, which I have addressed.
2. Yesterday, counsel for Mother submitted an 82 page affidavit that addresses the issue of whether Ms. Gratl intentionally misled the court directly (and indirectly through trial counsel to J.B. as her agent) during submissions on four occasions in March/April/May 2016 regarding her asking OLAP for approval to order transcripts of the trial. I am greatly concerned that this new evidence may be interpreted to show that as a member of the LSUC and an officer of the court she misdirected and intentionally misled the court. If the evidence now presented is persuasive, significant consequences to her may result. However, it is outside of my mandate and authority to venture into that troublesome issue other than to suggest that if Mother’s counsel believes the evidence shows such an action, she may forward a copy of said affidavit to the LSUC, if instructed by her client or she herself feels as a member of such governing body she has a duty to do so.

[100] I will make available today to each counsel a copy of these Reasons and my brief endorsement.

[101] I again thank counsel for the professionalism and skill you have shown since you were retained and throughout these appeal proceedings.

G.A. Campbell J. Date: February 9, 2017

Corrected Release Date: September 5, 2017

Corrections made September 5, 2017:

In the original decision released February 9, 2017, paras. 25, 39, 40, 42, 44, 45, 61, 98, and 99 referred to trial counsel for J.B., who did not appear at this appeal. That lawyer’s name has been removed from the text of the decision pursuant to an order I issued dated May 12, 2017. Therefore, those paragraphs now refer to “trial counsel to J.B.”