ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL

Ely Anna Hidalgo-Simpson, for the Applicant

Applicant

• and -

L.M. (née L.D.)

Jessica Gagné, for the Respondent

Respondent

HEARD: May 31, 2018,

at Brampton, Ontario

Price J.

Reasons For Order

OVERVIEW

[1] The Children’s Aid Society of Peel (“CAS”) removed L.M.’s two eldest children from her care on May 20, 2016, following an incident on December 17, 2015, in which L.M., while holding her ten month old daughter, S.S., removed a hot pan of baked goods from the oven, accidentally burning S.S. The CAS apprehended her youngest child, E.M., from her care on […], 2016, a day after he was born. The children have been in separate foster homes since then.

[2] On January 30, 2018, Justice Dunn granted summary judgment, making all three children Crown wards with no access by L.M. L.M. has appealed from that decision and now moves for state-funded counsel to represent her in her appeal.

BACKGROUND FACTS

[3] L.M. is 35 years old. She has three children:

a) R.D., who is 8 years old;

b) S.S., who is 3 years old; and

c) E.M., who is 2 years old.

[4] On December 1, 2011, on the application of the Toronto Children’s Aid Society (Toronto CAS), Weagant J. of the Ontario Court of Justice, found R.D. to be in need of protection, within the meaning of s. 37(2)(b)(i) and (ii), and 37(2)(d) of the Child and Family Services Act (“CFSA”). Two months later, L.M. (then L.D.), married E.M.S. in February 2012. The Toronto CAS determined that E.M.S. was an appropriate caregiver for R.D., and an effective support for L.M.

[5] On June 20, 2013, E.R. Murray J. made a Final Order placing R.D., then 3 years old, with L.M. and E.M.S. for six months, subject to supervision by the Toronto CAS. There were further Orders on December 9, 2013, and March 26, 2015, confirming that placement. Each Order provided that R.D. was not be left alone in L.M.’s care for extended periods.

[6] On February 27, 2014, L.M. and E.M.S. moved to Halton Region, and the Halton CAS assumed jurisdiction over the supervision of R.D.’s care. On […], 2015, S.S. was born to L.M. and E.M.S., with no intervention by the CAS.

[7] In September 2015, L.M. became pregnant with E.M. By October 2015, the Toronto CAS planned to end the court’s involvement and continue to work voluntarily with L.M. and E.M.S. However, before it could withdraw its Protection Application, E.M.S. died on November 11, 2015.

[8] Following E.M.S.’s death, L.M., with R.D. and S.S., moved to L.M.’s aunt’s home in Peel Region. The Halton CAS continued its court involvement, even though the family now resided in Peel. Halton CAS brought a Protection Application for S.S. and a status review application for R.D.

[9] On December 17, 2015, Justice O’Connell granted a temporary Order, placing R.D. and S.S. with L.M. under Halton CAS supervision, on terms requiring L.M. to live with her aunt in Peel and not be alone with the children for more than five hours per week. Peel CAS assisted Halton CAS to monitor the household.

[10] From November 2015, when L.M. and the two children moved to Peel Region, until May 2016, L.M.’s aunt grew uncomfortable with R.D.’s disruptiveness, R.D. having been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, autism spectrum disorder and a learning disability. She asked that another placement be found for L.M. and the children. In the meantime, in early 2016, L.M. met J.M., who is 49 years old, whom she later married.

[11] On April 26, 2016, while L.M. was holding S.S., she removed a hot tray of baked goods from the oven, accidentally burning S.S. She regarded the incident as an accident, but the Peel CAS regarded it as evidence of neglect.

[12] On May 16, 2016, L.M., with R.D. and S.S., moved to a house where J.M. rented the second floor and basement for himself and his three children, T., who is 23, D., who is 19, and A.M., who is 13. The landlords occupy the main floor of the house.

[13] On May 16, 2016, the same day L.M. moved into J.M.’s home, the Peel CAS apprehended R.D. and S.S. On May 20, 2016, Justice Parent varied the December 17, 2015, Order of Justice O’Connell, and placed R.D. and S.S. in the care of Peel CAS, with access to L.M. twice per week, supervised by the Society.

[14] E.M., the child of L.M. and the late E.M.S., was born on […], 2016. Peel CAS apprehended him the following day and placed him in a different foster home from that of his siblings.

[15] L.M., sometimes accompanied by J.M., began exercising access to the three children in June 2016. J.M. and L.M. were married in August of 2016.

[16] In June 2016, when Peel CAS took E.M. into care, it moved for a status review of R.D., who was then 7 years old, seeking an Order that he be made a Crown ward and be placed the CAS’s custody for adoption, pursuant to the Child and Family Services Act (“the Act”), s. 37(2)(b)(i). It additionally sought a finding that S.S., then 1 ½ years old, and E.M., still a newborn, were in need of protection and for an Order that they also be made Crown wards and be placed the CAS’s custody for adoption.

[17] L.M. opposed the CAS’s application and asked that her three children be returned to her and J.M. under the Society’s supervision. J.M. was not a party to the proceeding, but was included in L.M.’s plan for the children.

The motion for summary judgment

[18] The CAS noted R.D.’s biological father in default on June 13, 2017. By September 12, 2017, S.S., who was then 2 ½ years old, had been in the care of the Peel CAS for over a year since May 16, 2016, when she and R.D. were apprehended, and for a year and nine months since December 17, 2015, when Justice O’Conner placed her and R.D. in the care of Peel CAS. E.M. had been in care for a year and three months since his apprehension on […], 2016

[19] Section 70(4) of the Child and Family Services Act provides that a child under 2 years of age may remain in care for a maximum of one year. Peel CAS therefore moved for summary judgment in its application.

[20] Justice Dunn heard the CAS’ motion for summary judgment on November 15, 2017. Mr. Baker, on behalf of L.M., consented to the court making statutory and protection findings for S.S. and E.M. Mr. Misheal, of the Office of the Children’s Lawyer, agreed to an Order for Crown wardship, but urged that the children have access to each other.

[21] Justice Dunn noted that Mr. Baker had described a number of positive characteristics of L.M. and her husband. Neither has a criminal record, they have no issues with drugs or alcohol, no domestic violence or history of police intervention, and were available full time to parent without work or school commitments. Their residence was in a good geographic location, they were committed to employing daycare for the children, are able to work with the Peel CAS and foster parents, and did not ignore the CAS concerns about conditions in their residence. On their own, they sought and accepted support from a community wellness coordinator and completed a seven week parenting program recommended by the Peel CAS.

[22] The CAS’s lawyer Ms. Hidalgo-Simpson, relied on the CAS workers’ observations of the parents’ interactions with the children. She conceded that some visits went well, and that L.M. adequately met her children’s needs. Sometimes, the notes indicated “overall, a positive visit”. They observed the following strengths in L.M.:

• She arrived on time for visits and was prepared for them;

• She was well-groomed and appropriately dressed;

• She could redirect the children’s behaviour;

• She met the children’s physical needs;

• She engaged with each child;

• She set boundaries for the children’s behaviour;

• She problem-solved;

• She could settle down the children;

• She offered praise to the children;

• She managed safety concerns;

• She received support from J.M. to meet the children’s needs;

• She shared responsibility with J.M. for the children’s care;

• She got along reasonably well with the children’s foster parents and with the Peel CAS personnel.

[23] Following the hearing, Justice Dunn reserved his decision on the Peel CAS’ motion for summary judgment. He released his decision on January 30, 2018, granting the Orders the CAS sought, making all three children Wards of the Crown with no access by J.M. or L.M.

Appeal from Justice Dunn’s Order granting Summary Judgment

[24] L.M. obtained a Legal Aid Ontario (“LAO”) appeal opinion certificate for three hours, and consulted a lawyer, Jessica Gagné. Ms. Gagné accepted the certificate, wrote an opinion letter to LAO, and on February 26, 2018, filed the Notice of Appeal, within the 30 day timeline.

[25] Ms. Gagné submitted her appeal opinion letter to LAO on February 26, 2018, requesting funding for the appeal. She followed up with LAO in early March and was told that the funding decision could take up to 20 business days.

[26] On March 22, 2018, Ms. Gagné received the CAS’s motion dated March 19, 2018, to dismiss L.M.’s appeal, which had been served on L.M. herself, as Ms. Gagné was not yet counsel of record. On the same day, Ms. Gagné called LAO’s Lawyer Service Centre to follow up her appeal opinion letter and request for funding. She was advised that L.M. had been denied funding on March 16, 2018. LAO’s staff stated they had mailed a letter to Ms. Gagné.

[27] As Ms. Gagne had not yet received the letter notifying L.M. of the decision, LAO agreed to fax a copy of the letter to her, which they did that day. On the same date, Ms. Gagné appealed the LAO District Office decision to the Legal Aid Ontario Provincial Office.

[28] Also on March 22, 2018, Ms. Gagne notified Peel CAS of her appeal of LAO’s decision. They advised her that they could not withdraw their 14B motion to dismiss L.M.’s appeal, which had already been filed. Ms. Gagné, on behalf of L.M., made a cross-motion seeking the dismissal of the CAS’s motion and costs. To date, L.M. has not received a ruling of this court with respect to either party’s 14B motions.

[29] On April 13, 2018, L.M. advised Ms. Gagné that she had received a letter from the LAO’s Provincial Office denying her request for funding. She attempted to take photos of the letter and send it to Ms. Gagné, but was unable to do so. Ms. Gagné called the LAO Lawyer Service Centre herself on Monday, April 16, 2018 to ask if they would fax her a copy of this letter as she had not received it. The date on the fax is April 9, 2018, but the fax was only sent on April 16, 2018 following Ms. Gagné’s request.

[30] This motion for state-funding was brought on April 18, 2018 (within two days of receiving notice that L.M. had exhausted her rights of appeal within LAO). It was initially returnable May 8, 2018 (so as to meet the requirements of the Courts of Justice Act regarding the required 20 day notice period for the Notice of Constitutional Question).

[31] On May 8, 2018, the motion was adjourned on consent to May 31, 2018, at 10:00am, as the Office of the Children’s Lawyer had inadvertently not been served.

L.M.’s motion for state-funded counsel for her appeal

[32] L.M. moves for the following remedies pursuant to S. 24(1) of the Canadian Charter of Rights and Freedoms:

a) An order staying any further proceedings in this matter until such time as funding for counsel is provided to the Respondent mother, L.M., by the Attorney General of Ontario;

b) A declaratory order that L.M.’s rights pursuant to s. 7 of the Canadian Charter of Rights and Freedoms are triggered in these circumstances and that it would not be in accordance with the principles of fundamental justice to deny her state-funded counsel for her appeal;

c) An Order, pursuant to s. 24(1) of the Charter, that state-funded counsel be provided to L.M. in this matter, at Legal Aid Ontario rates, including funding for the transcript of proceedings and all disbursements associated with her appeal;

d) In the alternative to the order described in paragraph (c), an order appointing Jessica Gagné as Amicus Curiae to assist the court in this matter, to be paid at Legal Aid Ontario rates;

e) If necessary, an order shortening the time for service of this motion;

f) If necessary, an order shortening the time for service of the notice of constitutional question on the Attorney General of Ontario and the Attorney General of Canada;

g) An order for such directions as to the hearing of this motion as the Honourable Court may deem appropriate;

h) Costs of this motion;

i) Such further and other relief that this Honourable Court may deem just.

ISSUES

[33] The Court must determine whether L.M. qualifies for state-funded counsel for her appeal from Justice Dunn’s Order granting the CAS summary judgment and making her three children Crown wards with no access by J.M. or L.M.

PARTIES’ POSITIONS

[34] The parties agree that the only issue the Court needs to address is whether there is sufficient merit in L.M.’s appeal to justify state-funded counsel. L.M. submits that there are 13 appealable errors on the face of Justice Dunn’s reasons. The Peel CAS submits that none of the alleged errors has merit.

[35] The non-party the Attorney General of Ontario (“Ontario”) takes no position on the motion, and participated only to assist the court in applying the relevant legal test.

ANALYSIS AND EVIDENCE

Legal framework

[36] The parties and the Attorney General for Ontario agree that the relevant legal test for the appointment of state-funded counsel at the appellate level in a child protection proceedings is the one laid out by the Supreme Court of Canada (“SCC”) in New Brunswick (Minister of Health and Community Services v. G.(J.) (“G. (J.)”),[^1] with the proviso that the court should also consider whether the applicant’s appeal has merit.[^2]

[37] In New Brunswick (Minister of Health and Community Services) v. G.(J.), the Supreme Court of Canada considered the circumstances under which a parent has a right to state-funded counsel in child protection proceedings at first instance. The Supreme Court found that “continuing custody” applications threaten a person’s s. 7 rights and, given the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the principles of fundamental justice required the appointment of state-funded counsel for the parent.^3

[38] The Supreme Court of Canada articulated the following legal test applicable to motions for state-funded counsel at first instance:

a) The parent must demonstrate that the interests at stake in the proceeding engage his or her s. 7 rights;

b) The court must consider whether the parent can receive a fair hearing without counsel, having regard to the following: the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent;

c) The parent must demonstrate that he or she has applied for legal aid and exhausted all possible avenues for otherwise obtaining state-funded legal assistance;

d) The parent must be unable to afford a lawyer or be “indigent”.

Applying the legal principles to the facts of this case

[39] The CAS concedes that L.M. has satisfied all four elements of the test set out above for qualifying for state-funded counsel. I agree with this assessment for the following reasons:

a) The proceeding engages L.M.’s s. 7 interests, as the effect of Justice Dunn’s Order is to terminate her access to her children, and effectively deprives her of her relationship with them. Justice Dunn noted that the children had been in care beyond the time limits prescribed by s. 70 of the Child and Family Services Act (“the Act”), which provides that a child under the age of 6 years shall remain in care for a maximum of 2 years, and that a child under the age of 6, shall remain in care for a maximum of 1 year, pursuant to s. 70(4), subject to discretionary extensions of 6 months. The Act provides that if the time limits are reached, the court must either make the children wards of the Crown, with or without access by L.M., or return them to L.M., with or without supervision, or extend the time when the children shall be kept in care.

b) L.M. is unable to receive a fair hearing without counsel, having regard to the seriousness of the interests at stake, the complexity of the proceedings, which entails applying the various provisions of the Act, as interpreted in the jurisprudence, and L.M.’s limited cognitive capacity.

c) There is no dispute that, having regard to the history set out above, L.M. applied for legal aid and has exhausted all avenues for otherwise obtaining state-funded legal assistance.

d) L.M. is unable to afford a lawyer. In 2017, her household income was $22,533.00, derived from the Ontario Disability Support Program and $2,520.00 from Ontario Works. Since her marriage to J.M. in mid-2017, L.M. no longer qualifies for Ontario Works, but J.M.’s ODSP cheque has been slightly increased to take into account L.M. being his dependent. Their household income must support four individuals, including J.M. and L.M., and three of J.M.’s children from a prior relationship, who reside in their home.

Merits of the appeal

Jurisprudence

[40] At the appellate level, the test for receiving state-funded counsel is varied slightly pursuant to the unreported decision of Children’s Aid Society of Toronto v. Linda Guest (“CAS v. Guest”).[^4] CAS v. Guest appears to be the only decision in Ontario to have considered the availability of state-funded counsel in an appeal arising from child protection proceedings. In that case, Backhouse J. held that when applying the test laid out in G. (J.), the Court must also be satisfied that the appeal has merit. She stated:

5. The merit threshold cannot be a high onus, given that the transcript is not available. In any event, if a detailed review of the transcript were necessary to determine the merits issue, there would be little point in not proceeding with the appeal.

[Emphasis added]

[41] The addition of a merit consideration to the G. (J.) test at the appellate level mirrors the jurisprudence in other jurisdictions.[^5]

[42] In order to establish merit, applicants need not show that they have a strong case. They need only demonstrate that their application has at least some chance of success or some basic merit. This principle has been interpreted as follows:

• In Guest, Backhouse J. found that an appeal had merit where “the reasons for decision are not completely free of error.” Additionally, she stated:

[4] The fact that there may be some problems with the reasons does not mean that the appeal will necessarily be allowed. However, these problems make it impossible to conclude that there is no merit to the appeal;[^6]

• In F. (R.A.) v. Saskatchewan (Department of Community Resources & Employment)[^7] and S. (W.) v. Alberta (Director, Child, Youth & Family Enhancement Act)[^8] the court held that an appeal would have merit where the appeal had at minimum some demonstrated or arguable legal ground to support the appeal or some chance of success;

• In D. (L.) v. B. (J.),[^9] the court held that an appeal was unmeritorious where it had “little chance of success”; and,

• In B.(P.), after an extensive review of the law in this area, the court held that “[w]hatever merit test is applied should be a minimum test.”[^10]

[43] While the merit consideration is not onerous, it must be sufficient to address the underlying reasons which warrant the addition of a merit consideration to the test. These include:

a) Every jurisdiction has only finite judicial resources and unmeritorious appeals place unnecessary strain on the court system, creating problems of access to justice for those litigants with meritorious cases;

b) A merit consideration is in the best interests of the children who are the subject of proceedings. If the Children’s Aid Society plans to find an adoption placement for the child, the plan should not be prolonged for an appeal which has little chance of success and which would keep the children in custody, negatively impacting their ability to find a placement;

c) Public funds are not limitless. While the welfare of children should never take a backseat to fiscal concerns or expediency, the public interest and the interests of justice should require courts to expect some degree of accountability on the part of litigants before granting orders for state-funded counsel. Anything less would be untenable; and,

d) To provide funding for an appeal that has no real chance of reuniting parent and child does not further the parents’ or the children’s right to security of the person.[^11]

[44] In R. v. P.C., (2014), the Court of Appeal for Ontario considered a constitutional challenge to s. 684 of the Criminal Code, which is the provision that governs applications for state-funded counsel in criminal law appeals (“Rowbowtham Applications”). In that case, the Court of Appeal considered whether s. 7 of the Charter requires state-funding of appeals in all cases, and whether it is unconstitutional to set a merits threshold for appeal funding. The Court of Appeal held that requiring an accused person to show that they have an “arguable” appeal does not breach s. 7 of the Charter. This is because it would not be a breach of s. 7 of the Charter for an accused not to be able to advance an appeal that was “void of merit”.[^12]

[45] This is a low threshold. The Court of Appeal, in R. v. P.C., gives an example of an appeal that would have “no merit” as being one where an accused alleges bias on the part of the trial judge in the absence of supporting facts. The merits test for appeal funding should not be any higher in child protection law than in cases involving criminal charges.

Applying the legal principles to the facts of this case

[46] L.M. seeks, by means of her appeal, the opportunity to test the CAS’s evidence at trial. For the reasons that follow, I find that L.M.’s appeal has sufficient merit to entitle her to state-funded counsel to assist her. While L.M.’s counsel identifies thirteen appealable issues from the face of Justice Dunn’s reasons, I will focus on four, namely:

a) Failure to conduct a status review in relation to R.D., or to apply the test applicable to such a review, or to make a finding as to whether R.D. was in need of protection;

b) Finding that L.M.’s children could not remain in care any longer in accordance with s. 70 of the Act and in failing to consider the option of extending the existing Order for six months.

c) Failing properly to apply the test of whether there was a genuine issue for trial as to whether L.M. should have access to the children if they were made Crown wards, by imposing the onus on L.M. that she will have at trial at the stage of the motion for summary judgment.

d) Taking judicial notice of the effect of access on the children’s opportunities for adoption

[47] I now turn to why each of the above is an arguable basis for appeal.

a) Failure to conduct a status review in relation to R.D. and to apply the proper approach in such a review

[48] Justice Dunn makes no finding as to whether R.D., who was 7 years old at the time of the motion, was still in need of protection. L.M.’s consent (referred to as L.M. in the decision) to such a finding was restricted to the two younger children. Justice Dunn states:

[6] Mr. Baker consented on L.M.’s behalf to this Court making statutory and protection findings for S.S. and E.M..

[49] Justice Dunn’s reasons focus on L.M.’s inability to supervise all three children, together and at the same time. He states:

1. Ms. L.M. appeared overwhelmed by caring for three children during access. She required constant support.

[26] Ms. Tonan stated that Ms. L.M. would have preferred to see E.M. one day and R.D. and S.S. on another.

[27] That was the arrangement for a period of time, and Ms. L.M. could care for E.M. if he was the only child present. However, most of the visits were with the three children, and it was very difficult for Ms. L.M. to supervise them all. If R.D. or S.S. ran off, Ms. L.M. would either go after that child and leave the other two unattended, or she would remain with the two children, and let the other child run on his or he own.

[31] A capable parent can care for three or more children at once if s/he knew the children well, could anticipate their moves, and be constantly alert for safety issues….

[34] During the office visits, Ms. L.M. asked supervisors for help to manage one or more children. She saw that as a strength, believing that she should be credited with recognizing she needed help. I disagree, because there will be no society supervisors present in Ms. L.M.’s residence….

[50] Justice Dunn does not point to evidence that would support a finding that L.M. and her husband are unable to care for R.D. alone.

[51] Justice Dunn fails to articulate the test to be applied in a status review application, and does not make a finding that R.D. is in need of protection. The test to be applied on a status review application was set out in Children’s Aid Society of Hamilton v. G. (C.), (2013).[^13] In that case, Pazaratz J. states:

CROWN WARDSHIP: THE LAW

298. This is an amended status review application. On February 28, 2011 Justice McLaren made a final order which included a finding that the child V.B. is in need of protection pursuant to s. 37(2) (L) of the CFSA. That section provides:

A child is in need of protection where,

(l) the child's parent is unable to care for the child and the child is brought before the court with the parent's consent and, where the child is twelve years of age or older, with the child's consent, to be dealt with under this Part.

299. In a status review hearing the original order being reviewed is presumed to be correct. This is not a re-hearing or re-trial of the order previously made.

300. The examination to be undertaken involves two-stages, as recently confirmed by the Ontario Court of Appeal in Children’s Aid Society of Oxford v. W.T.C. 2013 ONCA 491:

a. First, determine whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection;

b. If it has been determined that the child is still in need of protection, the court must determine which of the available range of orders is in the best interests of the child.

301. In determining what order is required to meet the child’s best interests, the court must consider the degree to which the risk concerns that prompted the original order still exist. This must be examined from the child's perspective. (Catholic Children's Aid Society of Toronto v. M. (C.), (1994) 1994 83 (SCC), 2 S.C.R. 165 (S.C.C.).

302. A status review application is brought pursuant to s. 64 of the CFSA. Section 65(1) sets out the court's options:

(a) Vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;

(b) Order that the original order terminate on a specified future date;

(c) Make a further order or orders under section 57; or

(d) Make an order under section 57.1.

304. Section 57 sets out the available dispositions and considerations where a child has been found in need of protection:

57(1) Order where child in need of protection

Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

1. Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

2. Society wardship — That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

3. Crown wardship — That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

4. Consecutive orders of society wardship and supervision — That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

57(2) Court to inquire

In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

57(3) Less disruptive alternatives preferred

The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

57(4) Community placement to be considered

Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

[52] In Catholic Children’s Aid Society of Hamilton v. M. (R.), (2015), Chappell J., citing the Supreme Court of Canada’s decision in M. (C.), set out the applicable test on a Status Review Application. Justice Chappell stated:

[28] The Supreme Court of Canada set out the fundamental principles that apply on a Status Review application under the CFSA in M.C., Supra. It stated that in dealing with child protection cases pursuant to the CFSA, the court must always keep in mind the overall purpose and rationale of the global legislative scheme. It held that the underlying philosophy of the Act is that the best interests of children must be balanced with the importance of keeping the family unit intact. The court concluded that this philosophy is the foundational starting point for determining the applicable test on a Status Review application. It emphasized the importance of avoiding unduly restrictive interpretations of the individual sections of the Act which may work at cross purposes with this overall philosophy. Applying these general principles, the court held that in a Status Review application, it is not necessary to retry the original need for protection order. As the court stated at paragraph 35 of its judgment, “that order is set in time, and it must be assumed that it has been properly made at that time.” However, the court also rejected the suggestion that the test in Status Review proceedings involves a pure best interests analysis that places the state and parents on an equal footing with respect to the care of the child. Rather, it set out a two-fold test for the determination of Status Review applications. The first branch of the test requires the court to determine whether the child continues to be in need of protection, and as a result requires a court order for their protection. The second branch of the test involves a consideration of the best interests of the child.

[29] With respect to the first part of the test in Status Review proceedings, the Supreme Court did not state that the child must be found to be “in need of protection” as that phrase is defined in section 37(2)(b) of the CFSA. What is required is that the child welfare agency involved must justify ongoing state intervention in the life of the family by proving that a court order continues to be necessary to protect the child in the future. The Ontario Court of Appeal recently reiterated this point in Children’s Aid Society of Oxford County v W.T.C., 2013 ONCA 491, 2013 CarswellOnt 10258 (C.A.). The Supreme Court emphasized in M.(C.) that a preliminary determination of whether ongoing state intervention is required to protect the child is important to ensure that the overall objectives of the CFSA are protected and promoted. In support of its decision on this issue, the court relied heavily on the fact that these statutory objectives include the preservation of the autonomy and integrity of the family unit, and the provision of child protection services in the least restrictive and disruptive manner. The court also held that the inquiry into the child’s continued need for protection involves more than simply analyzing the events and concerns that triggered the child welfare intervention in the first instance and determining if those concerns persist. Rather, the issue must be assessed from the perspective of both the child and the parents, taking into account the reality that the needs and circumstances of both evolve continually. A finding that the child continues to require protection can be based on ongoing concerns respecting the parents’ ability to meet the child’s needs, or for reasons unrelated to the parties’ parenting, such as concern about the effects of removing the child from a long-term caregiver who is able to present a permanent plan.

[30] A number of amendments were made to the CFSA in 2000. These amendments included the repeal of section 65(3) of the Act, which set out a number of factors which the court was required to consider on a Status Review application. Former 65(3) of the Act stipulated as follows:

Criteria

65(3) Before making an order under subsection (1), the court shall consider,

(a) whether the grounds on which the original order was made still exist;

(b) whether the plan for the child's care that the court applied in its decision is being carried out;

(c) what services have been provided or offered under this Act to the person who had charge of the child immediately before intervention under this Part;

(d) whether the person is satisfied with those services; (e) whether the society is satisfied that the person has co-operated with the society and with any person or agency providing services;

(f) whether the person or the child requires further services; (g) whether, where immediate termination of an order had been applied for but is not appropriate, a future date for termination of the order can be estimated; and

(h) what is the least intrusive alternative that is in the child’s best interests.

[31] The Ontario Court of Appeal noted in Children’s Aid Society of Oxford County v. (W.T.C.), Supra., that the repeal of section 65(3) has led to debate in the courts as to whether the first branch of the test set out in M.C. still applies, or whether a pure “best interests” test now applies in Status Review proceedings. Unfortunately, neither of the parties in that case raised the question of the proper test, and therefore the court did not decide the issue. As I previously concluded in Catholic Children’s Aid Society of Hamilton v. T.D. and A.A., 2013 ONSC 5650, 2013 ONSC 5650 (S.C.J.), in my view, the repeal of section 65(3) did not alter the test which the Supreme Court articulated in M.C., Supra. The Supreme Court’s decision in M.C. regarding the need for the first branch of the test was not based on the factors set out in former section 65(3) of the CFSA, but rather on the broad objectives of the CFSA which seek to strike a balance between the best interests of the child and the need to prevent unwarranted state intervention in family life. The amendments which were proclaimed in 2000 did not alter those overriding objectives. The Supreme Court referred to former 65(3) of the CFSA at paragraph 38 of its decision, in the context of the best interests analysis which the second branch of the test requires, and did not cite that subsection in its discussion regarding the first prong of the test.

[32] In balancing the factors relevant to the best interests of the child pursuant to section 37(3) of the CFSA, the court must ultimately maintain a primary focus on the needs of the child and the importance of pursuing permanency planning for the child within a timeframe that is sensitive to those needs (citations omitted)…. [^14]

[Emphasis added]

[53] Justice Dunn’s does not advert to the statutory objectives of preserving the autonomy and integrity of the family unit, or of providing child protection services in the least restrictive and disruptive manner. His reasons also do not disclose that he sought to strike a balance between R.D.’s best interests and the need to prevent unwarranted state intervention in family life.

[54] It is arguable that Justice Dunn’s reasons do not reflect the approach to be taken in a Status Review Application. He does not articulate the test set out above or state that he is engaged in a Status Review. This was necessary in the present case, especially because L.M. had cared for R.D. for a substantial period of time, with Society supervision, after the original protection order was made.

b) Finding that L.M.’s children could not remain in care any longer in accordance with s. 70 of the Act and in failing to consider the option of extending the existing Order for six months.

[55] The Child and Family Services Act provides:

70 (1)  Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

(2) In calculating the period referred to in subsection (1), time during which a child has been in a society’s care and custody under,

(a) an agreement made under subsection 29 (1) or 30 (1) (temporary care or special needs agreement); or

(b) a temporary order made under clause 51 (2) (d),

Six-month extension

(4) Subject to paragraphs 2 and 4 of subsection 57 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so. 1999, c. 2, s. 21 (3).

[Emphasis added]

[56] Justice Dunn states, at para. 5 of his reasons:

[5] R.D, S.S. and E.M. have been in care respectively for over four years and six months, one year and five months, and over one year and five months. These children cannot remain in care any longer in accordance with Section 70 of the Act. The only options now are either Crown wardship, or return the children to Ms. L.M.. With or without supervision.

[57] The six month extension of the period permitted under subsection 70(1), available under subsection 70(4), would have been a less onerous disposition in this case. It is arguable that Justice Dunn erred in law in failing to consider subsection 70(4) or the option that it afforded to him. .

c) Reversing the onus as to whether there was a genuine issue for trial regarding access

[58] Justice Dunn correctly articulates that the test to be applied on a motion for summary judgment is whether there is a genuine issue requiring a trial. After articulating the test, he makes his own findings on the issues regarding access, rather than determining whether they raise a genuine issue requiring trial.

[59] At paragraph 79 of his reasons, Justice Dunn states:

[79] The final issue requiring a decision is whether the possibility of access between the children and Ms. L.M. is a genuine issue requiring a trial. Subsection 59(2)(22.1) is being considered:

A court shall not make… an access order made under Section 58 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.

[60] Justice Dunn later concludes, at paragraphs 88 and 89:

[88] It was the obligation of Ms. L.M. to establish that there should be an access order, and she did not do so.

[89] …Ms. L.M. has not proved that there would not be an impairment with the adoptive prospects if there was an access order. I find that the second test subsection 59(2.1) has also been satisfied in the Peel Society’s favour.

[61] It is arguable that in making those findings, Justice Dunn imposed the onus on L.M. that s. 59(2.1) imposes on her at trial, to prove that an access order would not impair the children’s opportunities for adoption, and failed properly to apply the onus on the Society, on the motion for summary judgment, to establish that there was no genuine issue for trial with regard to access. This approach runs contrary to the prevailing jurisprudence that in motions for summary judgment granting Crown wardship, orders precluding access are only to be made in rare and exceptional cases

Jurisprudence on the granting of summary judgment

[62] Spence J., in the Ontario Court of Justice, in Children’s Aid Society of Toronto v. C.(R.), (2016), gave the following helpful summary of the jurisprudence governing motions for summary judgment in child protection cases.[^15] He stated:

[89] There is a considerable body of case law dealing with the issue of when courts ought to be making Crown ward orders on motions for summary judgment. It is not necessary for this court to examine that body of case law in extensive detail. However, what is important for this motion, is the essence of that case law.

[90] In Children’s Aid Society of Ottawa v. RS, 2014 ONSC 7226, the court stated, at paragraphs 18 and 19 [my emphasis]:

Crown Wardship with no access for the purpose of adoption is the most intrusive of the dispositional orders and has been described as the capital punishment of family law . . . . As such, careful scrutiny of the evidence must justify such a result with a high degree of probability . . . . Great caution must be exercised. The evidence must be compelling, and an order may be made only after a careful examination of possible alternative remedies.

See also Frontenac Children’s Aid Society v. C.T. and M.T., 2010 ONSC 3054 for similarly expressed statements of caution about making orders for Crown wardship.

[91] Mother’s counsel also directed the court to another caution expressed in the decision of Justice Stanley B. Sherr, in Catholic Children’s Aid Society of Toronto v. C.C., 2015 ONCJ 334, at paragraph 100 [my emphasis]:

It is important not to judge a parent by a middle class yardstick, one that imposes unrealistic and unfair middle class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child’s best interests.

[92] What constitutes no genuine issue for trial? At paragraph 8 of J.C.J.-R. v. Children's Aid Society of Oxford County, 2003 2388 (ON SC), 2003 2388 (ONSC), the court stated [my emphasis]:

As to what constitutes “no genuine issue for trial”, the Ontario Court of Appeal has equated that phrase with “no chance of success”, and “plain and obvious that the action cannot succeed”: Prete v. Ontario (Attorney General) (1993), 1993 3386 (ON CA), 110 D.L.R. (4^th) 94, 16 O.R. (3d) 161 (C.A.), leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 46, 110 D.L.R. (4^th) vii. Chapnik J. in Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.), (supra), also provides a useful yardstick in suggesting that it is appropriate to grant summary judgment “when the outcome is a foregone conclusion”.

[Emphasis added]

Jurisprudence regarding access in Crown wardship cases

[63] Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair a child’s opportunities for adoption. In particular, the pre-amendment version of s.141.1(a) of the CFSA read as follows:

141.1 Limitation on placement by society - - A society shall not place a child for adoption until,

(a) any outstanding order of access to the child made under subsection 58(1) of Part III has been terminated.

[64] The Child and Family Services Act was amended effective September 1, 2011 and now allows Crown Wards subject to an access order to be adopted. The former s.141.1 of the CFSA now has been replaced by the new s.141.1.1 (1), which reads as follows:

141.1.1 Nothing in this Act prohibits a society from planning for the adoption of a Crown ward in respect of whom there is an access order in effect under Part III (Child Protection), 20111, c.12, s.3.

[65] Section 141.1 opens the door slightly to access in Crown wardship orders. It does not change or reduce either element of the conjunctive test in s. 59(2.1). The court must ultimately still be satisfied that access will not impair the child’s future opportunities for adoption. The onus on the parents remains high.[^16] However, the onus is on the Society, in a motion for summary judgment, to establish that there is no genuine issue requiring trial in that regard.

[66] In Frontenac Children's Aid Society v. C.T. and M.T., (2010), the court indicated that the court should consider the potential detriment to the child of not making an access order.

158 Knowing one's roots can be an important part of a child's development. If a child can maintain a connection with these roots without jeopardizing the security of a permanent adoptive placement, that is an option that should be considered. See: Children's Aid Society of Toronto v. M.M. [2012] O.J. No. 3240 (OCJ).[^17]

[67] It is arguable that Justice Dunn failed to consider the potential detriment to the children of not making an access order.

First prong of the test for access – Meaningful relationship

[68] Justice Dunn finds a lack of meaningful relationship between L.M. and E.M., who was removed from her care the day after he was born, and between L.M. and R.D., who is autistic, without regard to those circumstances and without considering the potential value to the children of their relationships with their biological mother.

[69] Justice Dunn stated:

[82] Regarding R.D. and his mother, L.M. said she did not connect with him because he was autistic. However, she was going to learn about autism and then she believed she could bond with her son. I do not think L.M.’s future knowledge of autism would make her more receptive to R.D.’s needs. The Peel Society’s workers did not believe so either and they urged her to relate to her son just as he is. Ms. Frampton in her affidavit writes that L.M. tended to ignore R.D., and for his part he was indifferent to her ministrations when she made them.

[70] There was no expert evidence regarding autism or how it affects the nature or meaningfulness of a relationship between a parent and an autistic child, or whether such relationships are enhanced by greater knowledge of autism by the parent. Although the onus is on the parent, at trial, to establish that there exists a meaningful relationship, there was evidence from the Society that L.M. met the children’s physical needs, managed safety concerns, engaged with each child and offered praise to them, could redirect the children’s behaviour and problem solved. It is arguable that the existence of a meaningful relationship between them was a genuine issue requiring trial.

[71] Regarding S.S., Justice Dunn observes that the Society’s case notes did not mention any closeness of relationship. He then speculates:

[83] …I can understand L.M.’s belief that the children appeared happy at the visits. It may well have been because they enjoyed the outing and the things to do at the Society’s office….

[88] I do not see that the children reacted any differently to L.M. than they would for a nice person they see twice a week, who pays some attention and brings them things. I do not find that L.M.’s existing relationship with any of her children delivered a significant positive advantage to any child. It was the obligation of L.M. to establish that there should be an access Order, and she did not do so.

[72] While a finding that the relationship between J.M. and L.M. and the children involves more than evidence that the children enjoyed their visits, it is arguable that:

a) the significance of the evidence of the children’s interaction with Mr. and L.M. should not have been dismissed based on speculation as to its cause;

b) evidence of positive interaction is more properly examined at trial, based on evidence from both parties, rather than by basing conclusions on the Society’s notes alone;

c) Justice Dunn’s finding substitutes a trial judge’s decision for a determination as to whether there is a genuine issue requiring a trial.

Second prong of the test – Impairment of Opportunities for Adoption

[73] The Court in Children’s Aid Society of the Regional Municipality of Waterloo v. M.(L.), (2013) reviewed recent decisions in which the Court considered potential reasons why courts might reject claims for access on the second prong of the test.[^18] The reasons why claims for access have been rejected, or might be rejected, in the future, include the following:

1. Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

a. They would be facing further litigation;

b. They would not know the result of such litigation;

c. They would not know what form an openness order might take;

d. If an openness application is brought, the adoption will be delayed

e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved.

2. Parents of an adoptable child who have a record of being difficult to deal with and not supportive of foster placements might find their access request refused because of their past disruptive behavior. The risk that these parents might undermine a potential placement for adoption if continued contact were permitted would likely be viewed as a reason not to grant an access order because such an order would impair that child’s future opportunities for adoption.[^19]

[74] Evidence “on the beliefs and attitudes of its pool of potential adoptive parents” as regards possible openness arrangement is not always necessary for the court to decide the issue. If the court is not satisfied that an access order would not impair S.D.E.’s future opportunities for adoption, then no access order can follow.[^20]

[75] Since the amendments to the Act, there have been cases which have refused access orders to biological parents who have had a history of undermining a child’s foster placement or of failing to work co-operatively with Society workers. The courts in those cases reason that a parent’s history of failure to work co-operatively with Society workers or of failure to support a child’s foster placement, is a good predictor of future failure to support an adoptive placement.[^21]

[76] In the present case, L.M. was found to share responsibility with J.M. for the children’s care, to get along reasonably well with the children’s foster parents and with the Peel CAS personnel, and to be capable of problem-solving. In light of such strengths, it is arguable that the issue of whether L.M. had demonstrated that her continued access would lessen the likelihood of adoption raised a genuine issue for trial.

[77] The court is not to approach the issue of access simply as one of whether the child is to have contact or no contact with the parents. The court must carefully consider the specific access options available for this parent, and decide whether these children, individually or collectively, will actually derive a benefit from the access regime being proposed. Both the short term and long term implications for the children must be considered. In CCAS of Toronto v. J.T., R.B. and M.B., (2012), Pazaratz J. stated:

945. We have to ask: Where are we going with this? It’s not just a question of whether the child is to have contact or no contact. The court must carefully consider the specific access options available for this parent, and decide whether this child will actually derive a benefit from the access regime being proposed. We must consider the short term and long term implications for the child…. [22]

[Emphasis added]

[78] The court must guard against the biological parent’s access to the Crown ward jeopardizing the permanence and psychological stability that the court is otherwise attempting to achieve through adoption. The court must also avoid prematurely terminating beneficial access by a biological parent in the absence of evidence that the benefit to the child of doing so will outweigh the benefit to the child of continued access.

d) Taking judicial notice of the effect of access on a child’s opportunities for adoption

[79] Justice Dunn bases his finding that L.M. had failed to demonstrate that access would not impair the children’s future opportunities for adoption on a fact of which he takes judicial notice, as follows:

[89] Regarding the second test in the subsection 59(2.1), whether access would impair the child’s future opportunities for adoption, there were no prospective adoptive parents at present, so no opportunity for adoption was being impaired. However, I can take judicial notice that many if not most adoptive parents would not want relations with a birth parent, and would not proceed with an adoption if there was an access order.

[Emphasis added]

[80] At trial, the onus is on a parent to rebut the presumption against access for a crown ward. The parents have the onus of establishing both portions of the test in subsection 59(2.1) of the Act. This is a difficult test for them to meet. Where a Crown wardship order is made, there is no obligation on the Society to prove that the children are adoptable, let alone that there is a prospective adoptive family.[^23]

[81] That said, the determination must be made based on evidence and not speculation. As noted in the examples cited above, the hesitancy that potential adoptive parents may have to adopt a child to whom a biological parent has access should be based on evidence that such access may interfere with the adoptive parents’ relationship with the children. Such evidence may exist where the biological parent has a record of being difficult to deal with and not supportive of foster placements.[^24]

[82] It is arguable that Justice Dunn, in finding that many, if not most, adoptive parents would not want relations with a birth parent, and would not proceed with an adoption if there was an access order, took judicial notice of a fact that was not properly the subject of such notice.

[83] The Supreme Court of Canada, in the criminal case of R. v. Find, (2001), adopted Professor E.M. Morgan’s conception of judicial notice:

Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial [page487] notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy ... [^25]

[Emphasis added]

[84] In R. v. Spence, (2005),[^26] the Supreme Court classified facts for the purpose of applying the Morgan test, and defined the permissible scope for judicial notice Justice. E.B. Murray J., of the Ontario Court of Justice, adopted the Morgan test for judicial notice, and the Supreme Court’s classification of facts, in the context of a child protection proceeding in Children’s Aid Society of Toronto v. J.C., (2013). She stated:

• “Adjudicative facts” are facts which are to be determined in the litigation between the parties in a particular case. Examples include reference to a map to establish the distance between two places, or the “fact” that the cost of raising children increases as they grow older.[^27]

• “Legislative facts” are facts which “have relevance to legal reasoning and the law-making process and involve broad considerations of policy”.[^28] Such facts may assist a court in analyzing a statute by, for example, providing information on the objectives of the drafters of the statue. Documents from government commissions or hearings may be submitted and accepted on this basis in Charter cases.

• “Social context facts” were defined by Justice Binnie in Spence as social science research which is “used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case”. As Professor[^29] David Paciocco says, social context facts are “not ‘facts’ in the true sense of the word; rather they are general explanations about society or human behaviour”.[^30] Examples include the Supreme Court’s acceptance of “the battered wife syndrome” to explain the defendant’s conduct in R. v. Lavalee, (1990) 1990 95 (SCC), 1 S.C.R. 852. Professor Paciocco has said that social context facts may properly include not just facts derived from social science research, but “general questions of fact that are not peculiar to the parties but which will affect the determination of a legal issue”.[31] An example of such facts are a court’s conclusions in sentencing about the prevalence and social cost of a particular crime.[^32]

[85] Based on the foregoing classification, whether a biological parent’s access will make it less likely that a child will be adopted is an “adjudicative fact”. It is the very fact that the court must determine when applying the second prong of the test in s. 59(2.1) of the CFSA. However, even if it is a social context fact, it is arguable that it is so close to being determinative of the issue to be decided under the second prong of the test that it is arguable that it is not the proper subject of judicial notice, especially on a motion for summary judgment.

[86] In Children’s Aid Society of Toronto v. J.C., E.B. Murray J. further stated:

[9] Justice Binnie in Spence commented on as to the proper use of judicial notice.

• Regardless of the type of fact to be noticed, a court must start with the Morgan criteria. If “the fact is adjudicative in nature” and that test is not satisfied, “that is the end of the matter”.

• Where social or legislative facts do not meet the Morgan criteria, the test may be more elastic, but “simply categorizing an issue as “social fact” or “legislative fact” does not license the court to put aside the need to examine the trustworthiness of the “facts” to be judicially noticed”.

• Regardless of the classification of a “fact” proposed for judicial notice, “the closer the fact approaches the dispositive issue, the more the court ought to insist on compliance with” stricter criteria for trustworthiness. In other words, the proposed use of the “fact” put forward is central to assessing the level of scrutiny required by the court. This point is illustrated by the decision of the Ontario Court of Appeal in Isakhani v. Al-Saggaf,[^33] a case in which a mother tendered an Amnesty International report to support her claim that she and her child would be not be adequately protected by a Dubai court if compelled to return to that country, the habitual residence of the family. The Court of Appeal observed that – whether the facts contained in the report were classified as adjudicative, legislative or social—they came close to the dispositive issue in the case, and as such were not the proper subject of judicial notice.

• It is preferable for social or legislative facts to be established through expert evidence, rather than attempting to rely upon a court taking judicial notice of those facts.

[Emphasis added]

[87] Based on the foregoing analysis, it is arguable that Justice Dunn erred in taking judicial notice of the alleged fact that many, if not most parents, would be unlikely to adopt a child to whom a biological parent is exercising access, and in finding, on that basis, that L.M. had failed to prove that her continued access would not impair the children’s opportunities to be adopted.

CONCLUSION AND ORDER

[88] For the foregoing reasons, I find that to deny L.M. state-funded counsel for her appeal would be contrary to the principles of fundamental justice and would breach her rights pursuant to s. 7 of the Canadian Charter of Rights and Freedoms.

[89] It is therefore ordered, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, that:

1. Further proceedings in this matter are stayed until such time as funding for counsel is provided to L.M. by the Attorney General of Ontario;

2. The Attorney General of Ontario shall provide state-funded counsel to L.M. for her appeal, and funding for the transcript of proceedings and all reasonable disbursements associated with the appeal;

3. If the parties are unable to agree on the costs of this motion, they may make submit written arguments, not to exceed 4 pages, plus a Costs Outline, by June 30, 2018.

Price J.

Released: June 11, 2018

COURT FILE NO.: FS-18-0047

DATE: 2018-06-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL

Applicant

• and -

L.M. (née L.D.)

Respondent

REASONS FOR ORDER

Price J.

Released: June 11, 2018

[^1]: New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 653 (SCC), [1999] S.C.J. No. 47, at paras. 55, 75, 103, 104.

[^2]: Children’s Aid Society of Toronto v. Linda Guest, (June 11, 2014), Toronto, FS 14-19235 (Ont. S.C.).

[^4]: Children’s Aid Society of Toronto v. Linda Guest, (June 11, 2014), Toronto FS-14-19235 (Ont. Sup. Ct.), para.3 (“Guest”).

[^5]: F. (J.) v. Newfoundland and Labrador (Director of Child, Youth and Family Services), 2013 NLCA 27 at paras. 34-71; B. (P.) v. Nova Scotia (Minister of Community Services), 2014 NSSC 182 at paras. 34-117; K.P. v. Newfoundland and Labrador (Child, Youth and Family Services), 2017 NLCA 37 at paras. 5-26.

[^6]: Guest, at para. 4.

[^7]: [2003] S.J. No. 783 (Sask. Q.B.) at pg. 2.

[^8]: [2013] A.J. No. 387, 2013 ABQB 231 (Alta. Q.B.) at para. 15.

[^9]: [2012] A.J. No. 1195, 2012 ABQB 693 (Alta. Q.B.) at para. 34.

[^10]: B. (P.), supra note 5 at para. 97.

[^11]: B. (P.), at paras. 88, 92-95.

[^12]: R. v. P.C., 2014 ONCA 577, at para. 29

[^13]: Children’s Aid Society of Hamilton v. G.(C.), 2013 ONSC 4972, at paras. 298 to 309.

[^14]: Catholic Children’s Aid Society of Hamilton v. M. (R.), 2015 ONSC 5101.

[^15]: Children’s Aid Society of Toronto v. C.(R.), 2016 ONCJ 335, paras. 127 – 136.

[^16]: Catholic Children’s Aid Society of Toronto v. M.M. and J.P., 2012 ONCJ 369, [2012] O.J. No. 2717, para. 180; Catholic Children’s Aid Society of Hamilton v. L.S. and W.B. 2011 ONSC 5850, [2011] O.J. No. 4512, paras 418-427.

[^17]: Frontenac Children's Aid Society v. C.T. and M.T., 2010 ONSC 3054

[^18]: Children’s Aid Society of the Regional Municipality of Waterloo v. M.(L.), 2013 ONSC 7564 at para. 11; Catholic Children’s Aid Society of Toronto v. M.M. Respondent, and J.N. [2012] O.J. No. 3240; Catholic Children’s Aid Society of Hamilton v. L.S., supra.

[^19]: Catholic Children’s Aid Society of Toronto v. L.D.E. and D.S., 2012 ONCJ 530, [2012] O.J. No. 4019, para. 17.

[^20]: Catholic Children’s Aid Society of Toronto v. L.D.E. and D.S., 2012 ONCJ 530, [2012] O.J. No. 4019 para 73.

[^21]: Catholic Children’s Aid Society of Toronto v. S.S.B. and R.O.C. and C.J., [2012] O.J. No. 4160, para 185

[^22]: Catholic Children’s Aid Society of Toronto v. J.T., R.B. and M.B., [2012] O.J. No. 3274, para. 945.

[^23]: Catholic Children’s Aid Society of Toronto v. M.M. and J.P., 2012 ONCJ 369, [2012] O.J. No. 2717 at paragraph 176.

[^24]: Catholic Children’s Aid Society of Toronto v. L.D.E. and D.S., 2012 ONCJ 530, [2012] O.J. No. 4019, para. 17

[^25]: R. v. Find, [2001] 1 SCR 863, 2001 SCC 32.

[^26]: R. v. Spence, 2005 SCC 71, 3 S.C.R. 458.

[^27]: David Paciocco and Lee Stuesser, The Law of Evidence, 5^th ed., pp. 469-470.

[^28]: The Law of Evidence, p. 468.

[^29]: Now Justice Paciocco,

[^30]: The Law of Evidence, supra, p. 472.

[^31]: “Judicial Notice in Criminal Cases: PR.D.lems and Pitfalls”, in Vol. 40 (1997) Criminal Law Quarterly 35, at p. 49.

[^32]: Children’s Aid Society of Toronto v. J.C., 2013 ONCJ 711

[^33]: Isakhani v. Al-Saggaf, 2007 ONCA 539,