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-16-27-00
DATE: 2018 03 07
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Matter of: Am H. (d.o.b.: 2005)
Az H. (d.o.b.: 2013)
BETWEEN:
Children’s Aid Society of the Region of Peel
Applicant (Respondent on Appeal)
– and –
M. H. and S. H.
Respondents (Appellants)
Laura Shaw, for the Respondent
Renatta Austin and Benjamin Vincents, for the Appellants
J. Cook for M. Osadet
HEARD: January 23, 31, February 23, May 9, 2017
REASONS FOR JUDGMENT
PUBLICATION BAN PURSUANT S. 45(8) OF THE CHILD AND FAMILY SERVICES ACT
No person shall publish or make public information that has the effect of identifying a child who is a witness or a participant in a hearing or the subject of this proceeding, or the child’s parents or foster parents or a member of the child’s family.
MCSWEENEY, j.
Overview
[1] This child protection appeal is about two sisters, “Am” and “Az”. A third sister, “M”, died at the age of 27 months from complications arising from malnutrition and asthma while in the care of her parents, Mr. S.H. and Mrs. M.H (the Appellants). The Appellants were convicted of manslaughter in the death of M, and received custodial sentences.
[2] The elder sister, Am, was born in […], 2005. She was apprehended at the age of six by the respondent, the Children’s Aid Society of the Peel Region (the “CAS” or “the Society”), and is now 12. Az was born after M’s death, was apprehended at birth, and is now four.
[3] Following a 12 day trial in 2014, Bovard J. of the Ontario Court of Justice made both children Crown wards without access: Children’s Aid Society of Peel v. M.H., 2015 ONCJ 756, [2015] O.J. No. 7012.
[4] The Appellants appeal that decision. They ask that Am and Az be returned to their care, or alternatively, placed with kin under a supervision order. They argue that the trial judge made many errors and that his decision should be set aside. They also argue that they received ineffective assistance from their trial counsel, and that had counsel been effective, the outcome of the trial would have been in their favour.
[5] The respondent asks that the appeal be dismissed, as the trial judge was thorough and did not err in making the children Crown wards without access for the purpose of adoption.
[6] It has taken some time to carefully review the trial decision and the several volumes of materials filed, as well as to consider all the submissions and issues on appeal. Having done so, I do not doubt that M.H. and S.H. love their children, or that the tragedy of M’s death has cast a long shadow over their family. For the reasons that follow, however, I find no basis to overturn the trial judge’s decision. The appeal is dismissed.
Notes about the Appeal hearing procedure
[7] This appeal was heard over four days between January 23, 2017 and May 9, 2017.
[8] On the appeal ground of ineffective assistance of counsel (IAC), the Superior Court of Justice Protocol-Allegations of Incompetence was followed. After three days of hearings, the appeal was adjourned on a timeline to permit trial counsel to file evidence, be cross-examined, and to make written and oral submissions on the IAC issue. All parties followed the court’s direction and a final hearing day took place on May 9, 2017, at which time the IAC issue was argued.
[9] On consent, all parties filed fresh evidence on appeal. Trial counsel filed fresh evidence in response to the issue of IAC only. The fresh evidence is described later in these reasons.
[10] While this decision was under reserve, the Ontario Court of Appeal overturned an appeal decision which had been relied on by parents’ counsel before me: see Children’s Aid Society of the Municipality of Waterloo v. C.T., 2017 ONCA 931, [2017] O.J. No. 6324, released 1 December 2017 (“Waterloo v. C.T.”), overturning 2017 ONSC 1022, 2107 O.J. No. 693. All parties were provided with an opportunity to provide written submissions on the impact of this appellate decision. All parties filed submissions. I have considered those submissions.
Background Facts
[11] The background facts are not in dispute.
[12] The Appellants are members of the Nation of Islam and adhere to a diet and lifestyle in accordance with their faith.
[13] On February 25, 2011, the Appellants’ daughter, M, died suddenly. A police investigation commenced and the respondent Society became involved with the family.
[14] It was thought initially that M died from rickets and a heart complication, and the police investigation closed. However, an autopsy later determined that the cause of death was complications due to asthma and rickets/vitamin D deficiency.
[15] The autopsy further determined that these complications were likely due to malnutrition. The police re-opened their investigation based on the autopsy report. The parents were subsequently charged with manslaughter.
[16] At the time of M’s death, the Appellants had one other child, Am, then age six. After M died, the Office of the Coroner contacted the Suspected Child Abuse and Neglect unit (SCAN) at the Hospital for Sick Children to have Am assessed.
[17] Although reluctant at first, the parents agreed to have Am medically assessed at SCAN on March 3, 2011. This was not due to suspected child abuse, but to assess the levels of micronutrients in her body. Blood work was completed. Dr. Emma Cory, the attending physician at the Hospital for Sick Children (HSC), determined that Am had severely low levels of Vitamin D and B12.
[18] As a result of Am’s severely low levels of Vitamin D and B12, Dr. Cory advised the Appellant father on March 3, 2011 that dietary supplementation was necessary. The Appellant father declined at that time to sign a consent form that would have authorized Dr. Cory to speak with representatives from the Society.
[19] On March 17, 2011, Dr. Cory reported to the Society that Am had seriously low levels of Vitamin D and B12, and that there were potential health ramifications for her should this not be addressed promptly.
[20] Following an admission from the father that the parents had not given Am the vitamins recommended by Dr. Cory, the Society commenced a child protection application on April 13, 2011. They sought a supervision order with conditions that the Appellant parents cooperate with the Society, and follow the recommendations of the HSC.
[21] On April 13, 2011, Justice P.W. Dunn heard and dismissed the Society’s motion. The court did not agree that the suggested terms of supervision were sufficient to keep Am safe. As a result, the Society apprehended Am and placed her in a foster home with members of the Appellants’ religious community. This placement did not last long, due to the caregivers’ failure to give Am the supplements as directed.
[22] The Society then placed Am in a Society foster home. The foster parents reported that when she was first placed in their home, Am lacked stamina and had difficulty playing outside without becoming tired and her legs hurting her. After approximately six months in the home, she was able to run and play like an average child.
[23] In September 2011, the Appellant parents were arrested on charges of failing to provide the necessities of life to M. They were held in custody for three months.
[24] In 2012, the Society worked with the Appellant parents to put together a Family Group Conference to discuss a plan for safely returning Am to their care.
[25] In January 2013, the plan to return Am to the Appellant parents’ care was deemed unsuccessful by the Society due to the Appellant parents’ unwillingness to cooperate with Society representatives.
[26] Am was found to be in need of protection on April 17, 2013. The Appellants had overnight access with Am until she was made a Crown ward, other than periods in which they were in detention.
[27] The Appellant mother gave birth to the younger child, Az, on October 20, 2013. Az was apprehended at birth and placed in foster care. The Appellants had supervised access to Az until she was made a Crown ward.
Procedural Background
[28] The trial before Bovard J. was held over 12 days between May and December 2014. The Society sought Crown wardship with no access to the parents, with a view to adoption. The parents sought the return of the children to their care with or without a supervision order. The parents did not testify.
[29] Counsel Margaret Osadet represented both parents in the child protection trial before Bovard J. The evidence was concluded on September 4, 2014, and final submissions were made in December 2014.
[30] The parent’s criminal jury trial for the charge of manslaughter was held in October 2014. Ms. Osadet represented M.H. in the criminal trial. The Appellant father was separately represented in the criminal trial.
[31] The Appellant parents were convicted of manslaughter in October 2014. On April 10, 2015, the Appellants were sentenced to two years less a day imprisonment. At the Appellant mother’s request, her sentence was changed to two years exactly to permit her to serve her sentence in a federal facility, as she was pregnant with her fourth child, a son “As” (who is not a subject of these proceedings).
[32] On May 27, 2015, Bovard J. re-opened the child protection trial to permit the Society to introduce evidence of the parents’ convictions and to hear argument as to whether the Reasons for Sentence of Sproat J. should be admitted. The parents asked that the Reasons for Sentence be admitted. Bovard J. admitted the fact of conviction and the length of sentence, but declined to admit the reasons for sentence.
[33] The children Am and Az have had several foster placements since they were apprehended. They have been with a paternal cousin, D.H., since June 30, 2015.
[34] The Appellants maintain their innocence and have appealed the criminal conviction to the Ontario Court of Appeal. In December 2015, they were released on bail pending that appeal. Their appeal from conviction has not yet been heard.
[35] Although the Appellants filed their notice of appeal in this matter in a timely way, the appeal was not perfected until December 2016.
Chronology of relevant dates:
| Dates | Judge/court | Description |
|---|---|---|
| Feb 25, 2011 | Death of Child M | |
| April 11, 2011 | Motion before Dunn J. (OCJ) | Dismissal of CAS Motion to place Am with her parents subject to CAS supervision |
| April 11, 2011 | Am apprehended by CAS | |
| October 25, 2011 | Parent S.H. and M.H. charged with failing to provide necessities of life in the death of M | |
| August to December 2012 | Botham J. (OCJ) | Preliminary Inquiry (evidence heard August 1, September 17, and November 8, 2012) in criminal proceedings. |
| December 13, 2012 | Pawagi J. (OCJ) | CAS working with parents to return Am, age 7. CAS bringing Motion for section 54 parenting assessment. Parents oppose motion on basis of their right to silence with respect to upcoming criminal trial. CAS motion dismissed. |
| April 17, 2013 | Parent J. (OCJ) | CAS summary judgment motion seeking finding Am in need of protection per section 37 of Child and Family Services Act. Motion granted |
| […], 2013 | Az born | |
| October 21, 2013 | Az apprehended and placed in foster care | |
| April 24, 2014 | Date of CAS Plan of Care seeking a finding that Az is in need of protection and Crown wardship for both Am and Az | |
| April 28, 2014 – September 2014 | Bovard J. (OCJ) | Evidence portion of child protection trial before Bovard J. |
| September to October 2014 | Sproat J. (SCJ) with jury | Manslaughter Trial of parents S.H. and M.H. Jury convicts S.H. and M.H. of manslaughter in death of M. |
| December 2014 | Bovard J. (OCJ) | Final Submissions in child protection trial |
| April 10, 2015 | Sproat J. (SCJ) | Reasons for Sentence delivered by Sproat J. re: manslaughter conviction of S.H. and M.H. |
| May 27, 2015 2015 | Bovard J. (OCJ) | Final appearance before Bovard J. CAS motion to reopen child protection trial to file evidence of conviction. |
| June 30, 2015 | Am and Az placed with paternal cousin D.H. | |
| October 15, 2015 | Ontario Court of Appeal | S.H. and M.H. initiate appeal of criminal conviction. |
| December 31, 2015 | Bovard J. (OCJ) | Bovard J. decision released. Am and Az made Crown wards without access |
| April 25, 2016 | Ricchetti J. (SCJ) | CAS brings motion to dismiss child protection appeal for delay. Motion adjourned. |
| December 2016 | SCJ | Child Protection Appeal Perfected by S.H. and M.H. |
The Trial Judge’s Decision
[36] The trial judge made the following findings:
a) That the child Az is a child in need of protection pursuant to s. 37(2)(i) and s. 37(2)(b)(i)(ii) of the Child and Family Services Act, R.S.O. 1990, c.c.11. (CFSA);
b) That the children Am and Az are made Crown wards; and
c) That the Appellants shall not have access to either child.
[37] In reaching his decision, the trial judge made the following findings of fact:
a) With respect to finding Az in need of protection:
i. The parents were serving a sentence, were not available to care for the children, and had not made alternative arrangements for the care of their children while they were in jail. Based on these findings, Az was a child in need of protection pursuant to s. 37(2)(i) of the CFSA;
ii. Based on evidence of past parenting, there is a risk that Az is likely to suffer physical harm if placed in the care of the parents and is therefore a child in need of protection pursuant to s. 37(2)(b)(i),(ii) of the CFSA;
b) With respect to Crown wardship:
i. The Society has a realistic plan that is in both children’s best interests and there is evidence that the Society will find an adoptive home for both children within a reasonable time;
ii. The children cannot be adequately protected if returned to the parents’ care due to a lack of cooperation by the parents;
iii. The Society’s evidence showed that it was poised to make detailed arrangements for the children’s long-term stable placement;
iv. The Society demonstrated that it will find an adoptive home that is a close cultural and religious match for both children;
v. The Society made genuine efforts to place the children with kin but was unsuccessful;
vi. There is no other alternative that would be less disruptive to the children and in their best interests than Crown wardship;
vii. The children’s physical, mental and emotional needs would be best taken care of by the Society’s plan for Crown wardship and adoption;
viii. There was little or no evidence with regard to the children’s relationships or emotional ties to their parents, extended family members, and community;
ix. Even after the death of M from malnutrition, for which the parents were convicted of manslaughter, the parents have not changed their ideas or behaviour sufficiently regarding how they feed their children;
x. The parents profoundly mistrust the Society and all who work for it, which has resulted in a long-standing lack of genuine cooperation with the Society’s efforts to help them adopt better dietary habits.
What is the Standard of Review?
[38] The Supreme Court articulated the different standards of review that apply depending on the issue in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[39] The standard of review is described in the child protection context by Aitken J. in Children's Aid Society of the Niagara Region v. J.C., 2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058 (Div. Ct.), at para. 5 (“Niagara v. J.C.):
... In regard to a pure question of law, the standard of review is correctness. For findings of fact, the standard of review is palpable and overriding error. Where the trial judge draws inferences from facts, the standard of review first is whether the trial judge made any palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inferences from those factual findings (the second part of the test is not simply whether the inferences could reasonably be drawn from the factual findings). In regard to a mixed question of law and fact, if it involves the trial judge's interpretation of the evidence as a whole, the standard is palpable and overriding error. If it involves the trial judge's interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.
[40] Further, in reviewing a trial judge’s decision, an appeal court must intervene only "where there is a material error, a serious misapprehension of the evidence, or an error in law." The appeal court may not overturn a trial judge's decision "simply because it would have made a different decision or balanced the factors differently": Niagara v. J.C., supra at para. 6.
[41] There are several reasons for this deferential approach to the findings of the trial judge: see Waterloo v. C.T., at para 33. In Woodhouse v. Woodhouse, 1996 CanLII 902 (ON CA), [1996] O.J. No. 1975 (C.A.), at para. 54, the court quoted with approval the concurring reasons of Cory and Iacobucci JJ. in P.(D.) v. S.(C.), 1993 CanLII 35 (SCC), [1993] 4 S.C.R. 141, at p. 192:
On issues of credibility, a trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings.
Similarly, the trial judge is in the best position to assess evidence pertaining to the best interests of the child. It is the trial judge who not only hears the evidence but also has the great advantage of watching the demeanour of all who testify.
[42] In practical terms, this deferential approach means that, “[i]f there is some evidence upon which the trial judge could have reached his or her factual conclusions, the appeal court will not intervene” [Emphasis in the original]: Van Wieren v. Bush, 2015 ONSC 4104, [2015] O.J. No. 3412, at para. 9, cited with approval in Waterloo v. C.T., at para 32.
[43] Courts have emphasized that deference is particularly compelling in child protection cases. As Justice Gillese stated in Children's Aid Society of Ottawa v. S.N.-D., 2012 ONCA 590, [2012] O.J. No. 4290, at para. 19: "[t]his court owes deference to factual determinations, a consideration that is particularly compelling in child protection proceedings." See also: Children's Aid Society of Toronto v. P.L., 2012 ONCA 890, [2012] O.J. No. 6009 at para. 16 and D.D. v. Children's Aid Society of Toronto, 2015 ONCA 903, [2015] O.J. No. 6816, at para. 29.
The Grounds of Appeal
[44] The Appellants raised many grounds of appeal. Pursuant to the analytical framework set out by the Court of Appeal in Waterloo v. C.T., the grounds are to be considered consecutively. My decision is therefore divided into three parts as follows:
A. Did the trial judge err?
B. Would the fresh evidence have made a difference to the result?
C. Does the record establish ineffective assistance of counsel (IAC)?
Part A. Did the trial judge err?
[45] These grounds of appeal can be summarized into the following questions:
a) Did the trial judge err in finding Az to be a child in need of protection?
b) Did the trial judge err in law or exhibit bias in deciding not to admit the Reasons for Sentence?
c) Did the trial judge err or exhibit bias in his use of Dr. Zlotkin’s testimony?
d) Did the trial judge err or exhibit bias in admitting the evidence of Dr. Michael Pollanen from the preliminary inquiry?
e) Did the trail judge err in ruling that the Appellants could not file a new medical report at trial?
f) Did the trial judge err in his evaluation and use of the evidence of Dr. Emma Cory of the Hospital for Sick Children?
g) Did the trial judge err in finding a lack of available kin placements?
h) Did the trial judge err making a no access order, and in particular, did he fail to consider Am’s views and preferences?
i) Did the trial judge err in his use of past parenting evidence?
a) Did the trial judge err in finding Az to be a child in need of protection?
[46] Appellants’ Position: The Appellant’s argue the trial judge made an error of law by finding that Az is a child in need of protection without evidence of faulty parenting before and after the child was born. Specifically, they dispute the second basis on which Az was found to be in need of protection, and argue that it was not open to the trial judge to find on the evidence that there was a risk to Az based on past parenting behaviour, unwillingness to change dietary habits, and reluctance to cooperate with the Society. In support of this ground, they point to some evidence of the parents’ cooperation with the Society within each category, and argue that the trial judge erred in concluding that Az was in need of protection.
[47] Relevant facts and analysis: The first ground on which Az was found to be in need of protection was that the parents were serving a sentence, were not available to care for the children, and had not made alternative arrangements for the care of their children while they were in jail. This factor was supported by the evidence. In May 2015, when Bovard J. re-opened the evidence to admit the fact of sentencing, both parents were in custody.
[48] With respect to the second ground, that the child Az was a child in need of protection due to risk of harm if returned to her parents’ care, there was ample evidence from which the trial judge could make this factual finding. Bovard J. reviewed the evidence with regard to Az in paras. 312-327 of the trial decision. I would give no effect to this ground of appeal.
b) Did the trial judge err in law or exhibit bias in deciding not to admit the Reasons for Sentence?
[49] Appellants’ Position: The parents argue that the trial judge should have admitted the whole Reasons for Sentence of Justice Sproat, not just the fact of conviction and length of the sentence. The parents wished to have the court consider the positive comments made by Sproat J., specifically his assessment that they are not likely to re-offend.
[50] Relevant facts and analysis: The trial judge considered the parents’ counsel’s submission that he should admit the Reasons for Sentence. The sentencing reasons contained facts found by Sproat J. for the purpose of sentencing, because the trier of fact in the criminal trial was a jury.
[51] The transcript shows that in ruling on this issue, Bovard J. was concerned that the Reasons for Sentence were based in significant part on evidence that was not before the court in the child protection hearing. Facts were found against the parents at the criminal trial, beyond a reasonable doubt. The parties would not be able to test or challenge those findings if the Reasons for Sentence were admitted.
[52] The portions of the Sproat J. sentencing reasons which are favourable to the parents include the following:
a) “The evidence does not support, and certainly does not prove beyond a reasonable doubt, that this is a case of parents deliberately starving a child in the sense of withholding food from a hungry child over an extended period”: R. v. S.H., 2015 ONSC 2050, [2015] O.J. No. 1862, at para. 36.
b) “While there is no specific expression of remorse, I believe the H’s have learned from this tragedy and would not make the same mistakes again that led to the malnutrition”: R. v. S.H., at para. 47.
[53] However, other portions of the sentencing reasons cast the Appellants and their actions in a significantly more negative light.
[54] For instance, Sproat J. states the following regarding the finding of a criminal culpability:
On March 26, 2010, at age 16 months, the H’s took M. to Dr. [R]. One of the H’s advised Dr. [R] that M. was not crawling or walking. As noted by Dr. [R], M.'s skull bones should have knit together but had not. These were obvious and serious concerns that could not have escaped Dr. [R]'s attention and she would surely have communicated them. I am satisfied beyond a reasonable doubt that Dr. [R] advised the H’s that there were serious concerns that M. was developmentally delayed and that she needed to see a specialist. …The fact that the H’s ignored the advice of Dr. [R] is both culpable and criminal. Further, from 16 months to her death M. gained only 1kg. Week by week, month by month, the H’s could see that there was no indication of any improvement. M. never walked and her weight gain was slight: R. v. S.H., at para. 42.
[55] He adds further:
I do not know why the H’s ignored medical advice and warning signs but I am satisfied beyond a reasonable doubt that they did. Distrust of medical professionals may have been a factor: R. v. S.H., at para. 44.
[56] At the sentencing hearing, both parents read lengthy statements and provided the court with copies. The court noted that they both expressed great sadness and pain at the loss of M.
[57] Justice Sproat concludes his description of the parents’ statements on sentencing as follows:
The statements also second guessed how the case was conducted by defence counsel and alleged that various witnesses fabricated evidence and lied. They also advanced a number of arguments that simply have no merit. For example:
i. that M.'s weakened and fractured bones were caused by Paget's disease. Dr. Pollanen had no doubt this was caused by Vitamin D deficiency rickets which was supported by blood tests indicating a severe Vitamin D deficiency and x-rays;
ii. that M. was somehow injected with Paget's disease by hospital staff when she was in neonatal intensive care after her birth;
iii. that weights for M. recorded at the Hospital for Sick Children and by Dr. Pollanen or his staff were inaccurate”: R. v. S.H., at para. 22.
[58] Conclusion: The trial judge made no error in law in exercising his discretion to exclude the reasons for sentence. Further, on a review of those reasons, specifically the portions excerpted above, I conclude that had he admitted Justice Sproat’s reasons, the resulting risk analysis in the child protection context would likely have been even more critical of the parents. I further find no basis to conclude that the trial judge exhibited bias toward the Appellants in making the ruling he did. I do not give effect to this ground of appeal.
c) Did the trial judge err or exhibit bias in his use of Dr. Zlotkin’s testimony?
[59] Appellants’ Position: The trial judge made an error of mixed fact and law by choosing to accept only those portions of Dr. Zlotkin’s testimony that were helpful to the Society.
[60] Analysis and Conclusion: Dr. Zlotkin was qualified on consent as an expert in pediatric nutrition and pediatric gastroenterology. He did testify at trial as to the results of his review of Am’s medical records and blood test results. A review of the trial judge’s reasons shows that Bovard J. considered the totality of evidence of Dr. Zlotkin, and that the facts found in relation to that testimony were based on that evidence. I give no effect to this ground of Appeal.
d) Did the trial judge err or exhibit bias in admitting the evidence of Dr. Michael Pollanen from the preliminary inquiry?
[61] Dr. Michael Pollanen, Chief Forensic Pathologist for Ontario, performed the autopsy on M and made findings as to cause of death. He gave expert testimony at the Appellants’ preliminary hearing on the manslaughter charges.
[62] Appellants’ Position: At trial, the parents opposed the admission of the transcript on the basis that Dr. Pollanen was available to testify and that his evidence would be prejudicial as it would distract from the central issue at trial, specifically the parenting ability of the Appellants. On appeal, they also argue that M’s weight at death was much higher than that recorded at the autopsy, and thus that M was not malnourished when she died.
[63] The trial judge carefully considered the transcript issue at paras. 424-442 of his reasons. He ruled that the transcript evidence was highly reliable, probative of the cause of M’s death, and admissible pursuant to s. 50(1)(b) of the CFSA. I find no error in his analysis.
[64] With respect to M’s weight at death, the discrepancy in the two recorded weights was explained in an affidavit of Dr. Pollanen sworn December 21, 2016, which formed part of the consent fresh evidence on appeal. In that affidavit, Dr. Pollanen explains that after M died, her body was weighed on two separate occasions in the Provincial Forensic Pathology Unit. The first was at the time of intake; the second was at the time of autopsy. The weight recorded at intake was the total combined weight of M’s body, as well as “resuscitation items, blankets/ shrouds and the body bag.” The second weight was obtained by Dr. Pollanen himself at autopsy, and was the weight of M’s body alone, which was 8.62 kg [see Affidavit of Dr. Michael Pollanen, December 21, 2016 at paras. 6, 9 and 11].
[65] I note that the parents issued a summons to Dr. Pollanen at trial and could have called him as a witness and questioned him as to the discrepancy in these two recorded weights. They did not do so [see Trial Transcript, April 28, 2014, pp. 6-7]. I would give no effect to this ground of appeal.
e) Did the trial judge err in ruling that the Appellants could not file a new medical report at trial?
[66] Appellants’ Position: The Appellants argue that the trial judge erred in ruling that their expert witness could not file a new medical report on the day of her testimony in order to critique the report of Society witness Dr. Zlotkin.
[67] Relevant facts and analysis: After the Society’s case was closed, the parents called Dr. Paola Marignani as a witness. She was qualified by the trial judge as “an expert in molecular biology including the pathology associated with environmental and genetic variations and/or mutations.” The Appellants’ counsel explained that the purpose of this expert was to challenge the Society’s evidence that low levels of vitamins D and B12 were found in Am, and that the low levels were caused by malnutrition.
[68] A review of the trial transcript indicates that when Dr. Marignani came to court on May 5, 2014, the court was advised that the Appellants’ counsel wanted to file another report she had prepared, critiquing the evidence of the Society’s witness Dr. Zlotkin. The Society had called Dr. Zlotkin as an expert in pediatric nutrition and pediatric gastroenterology. He prepared a nutrition assessment of Am based on her health and medical records. His report was made a trial exhibit on consent.
[69] The Society objected as it had no notice of this line of proposed testimony. Dr. Marignani’s first report, served before trial, contained no reference to such a critique, and the Society argued that it was therefore prejudiced in its ability to prepare and respond. The trial judge ruled that Dr. Marignani could testify to the contents of the report she had filed in advance, but could not offer critique beyond the bounds of that report, nor could her second report be filed.
[70] Conclusion: The report had not been served prior to trial as required by the Rules. The trial judge exercised his discretion not to admit the report. He made no error in doing so. Further, he did not err in confining the expert witness to testifying within her expertise, nor in restricting her testimony to the report filed in advance of trial. I give no effect to this ground of appeal.
f) Did the trial judge err in his evaluation and use of the evidence of Dr. Emma Cory of the Hospital for Sick Children?
[71] Appellants’ Position: Dr. Cory was a staff pediatrician at the HSC. She was called as a witness by the parents at trial, and was qualified as an expert in the nutrition of young children, including vitamin deficiencies. The Appellants argue that Dr. Cory was biased against them.
[72] Relevant facts and analysis: Dr. Cory testified to her involvement in assessing Am at HSC after M’s death. Dr. Cory obtained blood test results showing Am’s very low levels of vitamin D and B12, and contacted the Society to report her concerns after S.H. refused to give his consent authorizing her to speak with the Society.
[73] Conclusion: A review of the evidence of Dr. Cory does not support the Appellants’ contention that the trial judge should have discounted her evidence as biased against the parents. Dr. Cory was certainly concerned with, and critical of, the parents’ failure to give Am the vitamins ordered immediately after receipt of the blood test results. She was also concerned with their failure to comply with medical direction in the interests of Am’s health. I conclude that the trial judge made no error of fact in referring to or applying the evidence of Dr. Cory. I would therefore give no weight to this ground of appeal.
g) Did the trial judge err in finding a lack of available kin placements?
[74] Appellants’ Position: The trial judge made an error of mixed fact and law by finding that there was no evidence with regard to the children’s relationship or emotional ties to their extended family, and that there was a lack of an appropriate kin placement for the children.
[75] Relevant facts and analysis: The trial judge reviewed the evidence in detail and concluded that, based on the evidence at trial, there was no appropriate kin placement although many options had been explored. In his review of the evidence regarding placement, the trial judge also described the parents’ reluctance to provide names of family members, as well as the significant efforts made by the Society to locate kin.
[76] On appeal the parents argue that, on May 27, 2015, when the trial judge re-opened the evidence to admit the fact of the convictions, the parties should have introduced evidence of D.H. as a potential kin placement.
[77] Of course, this argument by the Appellants is not an allegation of error by the trial judge, as the evidence was not introduced. However, I make the following observations on this point:
a) By May 2015, Ms. D.H., a paternal cousin of the Appellant father, had come forward of her own accord to the Society as a potential foster parent; and
b) By May 2015, the parents were incarcerated. Am had been in care since April 2011 (over four years), and Az since her birth 16 months earlier.
[78] As found by the trial judge on the evidence, extensive efforts by the Society to return Am and Az to their parents had been unsuccessful. By May 2015, permanency planning was the appropriate focus given the statutory obligation to identify stable long term placement. A further kin placement under supervision of the Society, whether with D.H. or someone else, would not have advanced this goal.
h) Did the trial judge err making a no access order, in particular did he fail to consider Am’s views and preferences?
[79] Appellants’ Position: The Appellants submit that having determined that Crown wardship was the appropriate disposition, the trial judge failed to consider access as required by the CFSA. Further, they submit that the trial judge failed to consider the child’s views and preferences in arriving at his decision on access.
[80] Relevant facts and analysis: This ground was argued with respect to the elder daughter Am, who had had a relationship with her parents at the time of apprehension. A review of the trial decision indicates that the parents did not seek an order for access in the event of an order of Crown wardship. Accordingly, the trial judge did not err in failing to consider their submissions on this issue. In any event, I find that the trial judge did not err in not ordering access based on my analysis of the test below.
[81] The test for access once Crown wardship has been ordered is set out in the CFSA at s. 59(2.1). The court shall not make or vary an access order with respect to a Crown ward “unless the court is satisfied that, (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child’s future opportunities for adoption”.
[82] With respect to the first part of the test, the question is whether access is meaningful and beneficial to the child. Although not argued at trial, the CAS takes the position on appeal that it does not dispute that access to her parents is meaningful and beneficial to Am.
[83] The parents also argue that the trial judge failed to consider Am’s views and preferences in making his access decision. In this regard, I observe the following. A child’s views and preferences are one statutory factor to be considered by the court. Such views and preferences are often adduced separately on behalf of the child through representation by the Office of the Children’s Lawyer appointed pursuant to section 38 of the CFSA.
[84] In this trial, there was no order for OCL appointment requested by either party. However, during argument, appeal counsel advised that prior to trial, a section 38 appointment of the OCL had been ordered by the court apparently without notice to the parents, and a lawyer had been assigned by the Children’s Lawyer’s to represent the children. Neither the CAS nor the parents had requested the court to make such an order. Upon learning about the OCL appointment, the parents objected to OCL counsel representing their children, and in particular, objected to the lawyer who had been assigned, given that he had previously worked for a Children’s Aid Society. The parents were not in favour of counsel for their child.
[85] With respect to the statutory obligation on the court in any event to consider evidence of a child’s views and preferences, I find that the evidence at trial did include evidence from foster parents with respect to Am’s relationship with her parents during the time she had access visits with them. Although it may have been preferable to have direct evidence of the child’s views and preferences given that Am was 9 years old at the time trial, I cannot conclude that even if such evidence had been adduced, that the trial judge’s decision would have been different. Even if there were undisputed evidence that Am had said that she wanted to go home, the evidence at trial was cumulatively overwhelming that it was not in her best interest to be returned to the care of her parents.
[86] With respect to the second consideration in the access analysis, whether access will impair future adoption opportunities, this is discussed thoroughly in Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678, [2015] O.J. No. 6236. In that decision, the court described types of parent conduct which can disrupt foster placements and thus impair children’s future opportunities for adoption:
[166] The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.
[167] The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child’s sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child’s life.
[168] The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.
[169] The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child’s life and are likely to engage in openness litigation.
[87] The second category or attribute described above is an accurate description of the parents’ behaviour as found by the trial judge in this case. The trial evidence is unequivocal that the Appellant parents are unable to support the permanent placement of their children with others. The evidence contains many examples of parental conduct that continually had the effect of interfering with the decisions being made by the legal caregivers for their children. The evidence supports the trial judge’s conclusion that an order for access would impair the children’s opportunities for adoption. I therefore conclude that the trial judge made no error in terminating access.
[88] I observe further with respect to the fresh evidence affidavit of Ms. D.H., the paternal cousin with whom the children have been placed since 2015, that she articulates the same concerns with respect to the parents on willingness to support the success of placement with her. She concludes in this regard that she is not prepared, in the interests of the children, to facilitate contact with the parents.
[89] I would give no effect to this ground of appeal.
i) Did the trial judge err in his use of past parenting evidence?
[90] The Appellants also argue that the trial judge erred in placing weight on evidence of past parenting, which in this case means their parenting of the deceased daughter M. They do not argue that evidence relating to M was inadmissible, but rather that as past parenting evidence, it “suffocated” the evidence of their subsequent parental conduct during access with the older daughter Am.
[91] A review of the trial judge’s findings and the evidence as a whole does not support the Appellants’ argument. The evidence of the Society witnesses at trial focused specifically and extensively on their interactions with the parents after the death of M. Indeed, the Society had not been involved with the family until after the death of M, so there was very little historic evidence to suffocate, or otherwise obscure, the evidence about their care of Am. I would give no effect to this ground of appeal.
Part B. Would the fresh evidence have made a difference to the result?
Fresh evidence in the child protection context
[92] Section 69(6) of the CFSA permits an appeal court to receive further evidence relating to events that took place after the decision under appeal. The parties agree that in child protection matters it is important to have up-to-date information: see Catholic Children’s Aid Services of Metropolitan Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, at para. 20.
[93] The test for admissibility of fresh evidence is set out in Waterloo v. C.T. at paras. 35-36:
35 The test for fresh evidence in a child protection matter is undoubtedly more flexible than in other types of cases where the R. v. Palmer (1979), 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 (S.C.C.) test requires the applicant to satisfy four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
36 When an appeal involves a child protection matter, a more flexible rule applies. In Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.), at p. 188, L'Heureux-Dubé J. invoked the child-centered focus of the Act to conclude that the admission of fresh evidence in child welfare matters requires a "sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance". Likewise, this court has said that it is important to have the most current information possible when determining the child's best interests "[g]iven the inevitable fluidity in a child's development": D. (R.) v. Children's Aid Society of Owen Sound & Grey (County) (2003), 2003 CanLII 21746 (ON CA), 44 R.F.L. (5th) 43 (Ont. C.A.), at para. 21, per Abella J.A.
[94] In Waterloo v. C.T., the Court of Appeal overturned a Superior Court appeal decision below where the appeal judge considered fresh evidence after concluding that the trial judge made no errors. In doing so the Court of Appeal stated:
The conclusion that the trial judge made no errors [in making no access order] should have ended the appellate inquiry. Instead, the appeal judge went on to consider the fresh evidence about access. As I will explain, the fresh evidence did not support overturning the trial judge's decision: Waterloo v. C.T., at para. 34.
[95] Given my conclusion in Part A that the trial judge made no errors, the appellate inquiry should conclude at this point with the dismissal of the appeal. In the event that I have erred in this conclusion, I have reviewed the fresh evidence below.
What materials were filed as Fresh Evidence?
[96] Two types of fresh evidence were filed on appeal. The first is described below. The second were those materials specifically prepared to create the record necessary to argue IAC issue (see part C).
[97] The fresh evidence filed on appeal included:
a) Three affidavits sworn by the father, S. H., in September, October, and December 2016;
b) An affidavit sworn by the mother, M.H., in October 2016;
c) An affidavit filed by the Society, sworn by D.H., who has had Am and Az in her care since June 2015;
d) The full Reasons for Sentence of Justice Sproat;
e) Various medical records relating to the health care and care provided to the parties’ deceased child, M.H.;
f) And a supplementary appeal record, including transcripts of Crown witness testimony at the Preliminary Inquiry from over three days between August and November 2012.
[98] The question before the court is whether this fresh evidence provides an accurate assessment of the children’s current situation that is of crucial importance: Waterloo v. C.T., at para. 36.
[99] I have reviewed all the fresh evidence filed on the appeal. The extensive affidavits of the parents describe their concerns with the Society, their experiences of parenting, and concerns with the medical system. They also point to their willingness to work with the Society in respect of their children born after Am and Az. Those children are not the subject of these proceedings.
[100] The majority of the fresh evidence re-states or confirms the parents’ views as expressed to the Society and referred elsewhere in the trial evidence.
[101] The only evidence which “updates” the court’s information about Am and Az is found in the affidavit of foster parent D.H. That evidence is confirmatory of the appropriateness of the trial judge’s decision.
[102] In conclusion, none of the fresh evidence could reasonably, when considered with the evidence adduced at trial, have affected the result.
Part C: Does the record support a finding of ineffective assistance of Counsel (IAC)?
[103] At trial, the Appellants were represented by counsel, Margaret Osadet. On cross-examination, S.H. agreed that, “from my wife and my vantage point she did a good job in the trial.” He went on to state, “We thought she did a good job during the trial until we found out later on things that were not done. But up until that time I had no reason to doubt Ms. Osadet, except when she made a comment, I think it was on December 16th, after we had been convicted and she told Justice Bovard that my wife and I agreed that our daughter died from malnutrition and asthma. And that’s when I said this can’t stand, because that’s [sic] that’s not what we believe” [Transcript of the cross-examination of S.H., dated March 24, 2017, at pp. 48-49].
[104] On appeal, the parents allege that their trial counsel’s representation was ineffective and rendered the trial verdict unreliable. Fresh evidence on this issue took the form of affidavits from the parents and trial counsel, as well as transcripts of the cross-examination of the Appellant father, S.H., and of trial counsel herself.
Analytical Framework in the child protection context
[105] The Supreme Court of Canada has acknowledged the importance of parent representation in the context of child protection: see New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46.
[106] In respect of the ineffective assistance of counsel issue, the standard of review is also that established by Housen v. Nikolaisen. See also: Windsor-Essex Children’s Aid Society v. R.H.C., 2016 ONCA 595, [2016] O.J. No. 4057, at para. 4.
[107] The test for ineffective assistance of counsel in the child protection context was established in the case of K.R. v. CAS, 2015 ONSC 3769, [2015] O.J. No. 2850 (Div. Ct.), which in turn draws on the principles established in R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No 4348 (C.A.). The test is summarized as follows at para. 7 of that decision:
First, where the claim is based on contested facts, the Appellant must establish the material facts on the balance of probabilities;
Second, the Appellant must demonstrate that counsel's acts or omissions amounted to incompetence; and
Third, the Appellant must demonstrate that counsel's ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the Appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: K.R. v. CAS, at para. 7.
[108] As a threshold issue, however, I must consider whether this ground of appeal in the present case is now moot. In Waterloo v. C.T., the Ontario Court of Appeal has recently clarified in the child protection context that there is no need to consider this ground of appeal where no error by the trial judge is found:
95 First, having found no error on the part of the trial judge, the issue of ineffective assistance was moot. Ineffective assistance of counsel as a ground of appeal has a very narrow application. It is a ground of appeal. It is not a springboard from which an appellate court engages in a retrospective analysis of every aspect of a lawyer's conduct. The far-reaching analysis in which the appeal judge engaged is more properly done in the context of a civil negligence action, with all of its procedural safeguards, or a disciplinary investigation by the Law Society of Upper Canada. [Emphasis added]
[109] As stated further in that decision, at para. 96:
Since the trial judge did not err, there was no ground of appeal left to explore. There was no prejudice to the parents and thus no miscarriage of justice. In R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29: “In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The letter is left to the professional's self-governing body.
[110] In Part A of these reasons, I held that the trial judge did not err. As such, the issue of ineffective counsel is now moot: it is not necessary for me to consider this ground of appeal.
[111] In the event that I have erred in my conclusion in Part A, however, I have considered the evidence and submissions of all parties on the IAC issue, including those of trial counsel. In view of the importance of this appeal to the parents, and the emphasis they placed on this ground in their arguments, I consider it appropriate to explain my conclusion that this ground of appeal cannot succeed even if it were not moot.
IAC errors alleged:
[112] The Appellants allege that their trial counsel:
a) Prevented them from testifying at their trial even though they wanted to;
b) Did not call key witnesses;
c) Did not put forward a paternal cousin, D.H., as a kin placement option;
d) Did not permit the parents to dispute M’s body weight at the time of death; and
e) Was incompetent due to lack of experience in child protection law.
Application of Ineffective Assistance of Counsel test to allegations:
[113] At the first step of the IAC analysis, I must consider what facts have been proven by the Appellants on a balance of probabilities. I have reviewed the trial transcript and fresh evidence filed.
[114] Regarding the Appellants’ failure to testify, the Appellants’ contend that they wanted to testify at trial but counsel prevented them from doing so.
[115] Trial counsel disputes the Appellants’ evidence that she prevented them from testifying. In her evidence, she describes her discussions with the parents about testifying, and her repeated advice that they would be able to do so without fear of the testimony being used against them in the criminal proceeding. She explained what the focus of their evidence would need to be. She was prepared to seek to re-open the evidence to permit the parents to testify as to how they were prepared to change their parenting to address the Society’s risk concerns, but the parents did not want to do that. Trial counsel described this as an “impasse”.
[116] Trial counsel’s decision, given the parents’ reluctance to testify, was to introduce whatever other evidence she could. In cross-examination, she explained, “if they [the Appellants] weren't going to take the stand and talk about what risks or what behaviours they were prepared to change of their own or engage in, then our best evidence was what they had done, which was showing over the three years since this had started, because it was three years, that they had taken care of [Am] over the weekend. They had demonstrated that they could do that” [see Transcript of cross-examination of M. Osadet, March 8, 2017, Q. 382, p. 122].
[117] I find that trial counsel’s description of the conversations is consistent with the position taken by the parents with the Society, as described in the evidence of Society witnesses at trial.
[118] This is also consistent with their position on the earlier CAS motion in which they refused to consent to a parenting capacity assessment, which was sought by the Society to help establish a present factual basis for assessing risk to the children if returned to their parents’ care.
[119] I cannot find on a balance of probabilities that the Appellants wanted to testify at the time of trial. The child protection trial took place just prior to the criminal trial, and the parents were clear that they wanted to remain silent.
[120] Certainly, it is now the parents’ position that they wish they had testified. As noted by the Court of Appeal, it is not uncommon in the “cold light” of an unfavourable trial result for unsuccessful litigants to wish they had testified.
[121] I note further, with respect to this allegation, that when cross-examined on this point, S.H. confirmed if he had testified, he would have wanted to tell the court the evidence contained in his affidavit of November 22, 2013. I have reviewed that affidavit, and conclude that its admission at trial, whether by affidavit or sworn testimony, would not have affected the trial result.
[122] On the allegation that trial counsel prevented the Appellants from testifying, I conclude that the material facts have not been established.
[123] With respect to allegations (b) and (c), the parents argue that trial counsel was “lackadaisical” and did not call all relevant witnesses, and failed to tell the Society about a parental cousin, D.H., as a potential kin placement.
[124] Analysis: Trial counsel called both lay and medical witnesses for the parents. The trial transcript and the cross-examination of trial counsel establish that she took extensive steps to locate and identify witnesses whose testimony would assist her clients’ case. Further, as referenced earlier, the evidence establishes that the parents themselves were not forthcoming in an ongoing manner in assisting the Society to identify and explore potential kin placements.
[125] The Appellants also contend that trial counsel refused to call Dr. Patricia Horsham as an expert witness. According to S.H., Dr. Horsham “would have been able to provide a critique of the post mortem report of our daughter [M] and insight on [Am]’s bloodwork”. Trial counsel agreed on cross examination that the parents wanted Dr. Horsham called as a witness. Trial counsel ultimately determined not to call Dr. Horsham as a witness, due to concerns that Dr. Horsham was not qualified to critique a pathologist’s report. In fact, Dr. Horsham herself had conceded her lack of relevant expertise and training in a preparation meeting with trial counsel [see Transcript of cross-examination of M. Osadet, March 8, 2017, at Q. 338]. Further, trial counsel was concerned that the parents’ desire to call evidence to challenge the cause of M’s death would not address the central issue at trial, namely, “what Mr. and Mrs. [H] could do in the future to protect their two living children” [see Transcript of cross-examination of M. Osadet, March 8, 2017, at Q. 340].
[126] On this issue, I conclude that the trial decision of whether to call Dr. Horsham was within realm of decisions for trial counsel to make, and does not amount to incompetence. In any event, a review of the proposed CV and report of Dr. Horsham confirms trial counsel’s concern regarding the lack expertise in pathology. Had Dr. Horsham been called as a witness, she was unlikely to have been qualified to give expert testimony. Further, in any event, her testimony would not have made a difference to the trial judge’s decision.
[127] In conclusion on allegations (b) and (c), the material facts have not been established. Further, the actions and alleged inactions of counsel do not in any event amount to incompetence.
[128] With respect to allegation (d), the decision of whether to call evidence to challenge M’s weight at death as recorded by the coroner was a decision regarding the conduct of the case. In the context of this trial, counsel exercised her discretion to focus the evidence she called on the parents’ capabilities rather than their belief that the doctors who autopsied their deceased daughter had not recorded her weight accurately. In my view, her decision was reasonable in the circumstances and did not amount to incompetence.
[129] With respect to allegation (e), the record establishes that trial counsel was called to the bar only a year before the trial started, and that her practice was mostly in criminal defence law. This was her first child protection trial. She was on the Legal Aid Ontario list from which counsel are funded to represent parents in child protection proceedings.
[130] The material facts establish that trial counsel had little experience in the area of child protection litigation. The nature and extent of the training she received from Legal Aid Ontario was not established on the record.
[131] Further, the cross-examination of trial counsel and subsequent undertaking requests established that trial counsel did not maintain either detailed time dockets or notes to file about client meetings and instructions.
[132] Despite trial counsel’s limited experience in child protection, my review of the trial transcript and of her cross-examination on appeal shows that she was appropriately aware of and focused on the case her clients had to meet. The evidence also confirmed that the parents specifically sought out and retained Ms. Osadet for trial in preference to two other lawyers who had assisted them earlier in the case. Trial counsel tested the Society’s case extensively and thoroughly, and called what evidence she could to support her clients’ goal of having their children returned to their care. In this regard, unfortunately, the parents’ mistrust of the Society, and their deep belief that they had done nothing wrong in their parenting of M., left trial counsel with limited strategic options for advancing their case.
[133] With respect to the evidence regarding trial counsel’s challenges with file management and record keeping, this evidence is not relevant to the IAC analysis in this case. As stated in Waterloo v. C.T., a consideration of IAC is not to be used as a “springboard from which an appellate court engages in a retrospective analysis of every aspect of a lawyer’s conduct”: Waterloo v. C.T., at para. 95.
[134] In conclusion on the allegation of IAC, I would give no effect to this ground of appeal.
Conclusion:
[135] The trial judge’s decision was based on a careful consideration of the trial evidence. The facts on which he based his decision were well supported by that evidence. I find no error in his application of the law to those facts.
[136] It was open to the trial judge to make an order for Crown wardship and I find it was appropriate that he did so, as further placement of the children with kin under a supervision order would not have been in the children’s best interests. The Society had attempted over a lengthy period to work with the parents toward a potential return of the children. Given that those efforts were unsuccessful, it was appropriate by the time of trial that the court identify a path towards permanency for the children, and it did so.
[137] Further, neither the fresh evidence nor the IAC grounds of appeal establish a basis for interference with the trial judge’s decision. The appeal is dismissed.
Costs:
[138] Given the nature of this proceeding, I make no order as to costs.
Original signed by Justice McSweeney_
McSweeney, J.
DATE: March 07, 2018
COURT FILE NO.: FS-16-27-00
DATE: 2018 03 07
SUPERIOR COURT OF JUSTICE ONTARIO
RE: Children’s Aid Society of the Region of Peel, Applicant (Respondent on Appeal)
v.
M.H. and S.H., Respondent (Appellants)
BEFORE: McSweeney, J.
COUNSEL: Laura Shaw for the Respondents
Renatta Austin and Benjamin Vincents for the Applicants
J. Cook for M. Osadet
REASONS FOR JUDGMENT
McSweeney, J.
DATE: March 07, 2018