COURT FILE NO.: FS-124-18
DATE: 2018-12-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Family and Children’s Services of the Waterloo Region
Applicant
– and –
J.L.S.
Respondent
Cheryl Buehler, Counsel for the Applicant / Responding Party, Family and Children’s Services of the Waterloo Region
Sarah Clarke and Beth Purdon-McLellan, Counsel for the Respondent/Moving Party, J.L.S.
Jennifer Gallagher and Elizabeth McCarty, Counsel for the Ministry of the Attorney General Ontario – Office of the Children’s Lawyer
Rochelle S. Fox and Yashoda Ranganathan, Counsel for the Intervener, Attorney General Of Ontario - Constitutional Law Branch
Jean LeDrew Metcalfe, Counsel for the non-party, D.O.B.
HEARD: December 3, 2018
The Honourable Mr. Justice D.J. Gordon
Reasons for Decision
[1] In this proceeding, J.L.S., the biological mother of Z. and D., seeks to have the adoption order set aside, extending time to appeal the Crown wardship no access order and other relief. She has also given notice of constitutional question, challenging the validity of certain sections of the Child, Youth and Family Services Act, 2017. The stated basis of the relief sought includes the prior reliance on Motherisk drug testing reports, now known to be flawed and unreliable.
[2] The ultimate remedy sought by J.L.S. is an openness order so as to allow a relationship with Z. and D. and to allow a sibling relationship between Z. and D. and her two younger children.
[3] In the present motion, J.L.S. requests an order appointing the Office of the Children’s Lawyer to represent the interests of Z. and D. The motion is opposed by Family & Children’s Services and the adoptive parents. The Office of the Children’s Lawyer has advised it will assign counsel if the court grants the order sought by J.L.S. The intervener, Attorney General of Ontario, takes no position on the motion.
[4] The motion was previously scheduled to be heard as a long motion on July 21, 2018. On that occasion, I advised Ms. Clarke and Ms. Buehler that further information was required, specifically whether Z. and D. were aware of their adoption and the present litigation. I also requested counsel from the Office of the Children’s Lawyer appear on the adjourned date, having regard to the interests of Z. and D. and other children impacted by Motherisk reports and to address possible intervener requests. Following that appearance, affidavit evidence from D.O.B., the adoptive mother of Z. and D., and additional factums were filed. I am most grateful for the co-operation and assistance of counsel in providing all relevant material so as to allow the motion to proceed on a complete record.
Factual Background and Litigation History
[5] The evidentiary record in this case, some of which remains in dispute, is extensive. For the purposes of this motion, the background and litigation history may be briefly summarized as follows:
(i) Z. and D. are presently 13 and 11 years of age;
(ii) child protection proceedings were initially commenced in the Ontario Court of Justice in 2006;
(iii) on December 2, 2008, Nicklas J. granted a final order following a summary judgment motion in which Z. and D. were made Crown wards with no access to their parents;
(iv) an adoption order was subsequently granted in 2010;
(v) in the child protection proceedings, the Children’s Aid Society tendered reports from the Motherisk Drug Testing Laboratory at the Hospital for Sick Children regarding hair samples taken from D. and J.L.S.;
(vi) these reports revealed cocaine and other substances;
(vii) J.L.S. has always denied use of cocaine and disputed the test results and report;
(viii) in granting summary judgment, Nicklas J. relied on the Motherisk reports, including making findings the parents were “in the grasp of drug addiction” who “cannot explain the positive drug reports”; and
(ix) other evidence was tendered and addressed in that decision.
Motherisk Reports
[6] Until 2015, the Motherisk Drug Testing Laboratory tested hair samples at the request of child protection agencies and in some criminal cases. As a result of an appeal of a criminal conviction in 2014, a controversy arose regarding the drug testing methodology.
[7] Subsequently, The Honourable Susan E. Lang was appointed to conduct an independent review. On December 15, 2015, she released her “Report of the Motherisk Hair Analysis”, concluding the laboratory testing was inadequate and unreliable for use in child protection and criminal proceedings. Recommendations included a review of those cases involving Motherisk reports.
[8] The Honourable Judith C. Beaman was appointed to conduct such a review regarding child protection cases. On February 26, 2018 she released her report “Harmful Impacts: The Reliance on Hair Testing in Child Protection”. During this review process, J.L.S. was contacted by the Commission, advising that a review of this case resulted in a determination the results of the Motherisk tests had played a significant role in the court’s decision to grant a Crown wardship order.
[9] Thereafter. J.L.S. consulted and retained counsel. Following counsel’s review, this proceeding was commenced by motion, dated February 14, 2018 seeking the relief as described at the outset of these reasons.
The Children
[10] The adoptive parents were made aware of this proceeding by Family & Children’s Services. They retained counsel. The issue as to whether these parents ought be added as parties will be addressed at some future point.
[11] In response to my request for information regarding the children, Z. and D., the adoptive mother, D.O.B., provided an affidavit. A summary of her evidence, relevant to the motion, is as follows:
(a) the children are aware of their adoption;
(b) the children know their biological mother and father by their first names;
(c) Z. has some memory of his biological mother, such as her face and of visits with her;
(d) D. has no memory of his biological parents;
(e) the children are aware their parents have sent updates and photographs to J.L.S. in the past;
(f) in July 2018, Z. and D. received their first letter and photographs from J.L.S.;
(g) the children are aware that as adults they can request to open adoption records;
(h) the children are aware of the current proceeding, are upset and concerned they may be taken from their parents; and
(i) Z. is seeing a counsellor to address his worry about this case.
Children’s Rights
[12] Children are the focus in child protection and custody cases. The best interests of the child test has long been the standard for judicial determination, as set out in the following statutes:
(a) Child, Youth and Family Services Act, 2017 (“C.Y.F.S.A.”), S.O. 2017, Chap. 14, sections 1 and 74;
(b) Children’s Law Reform Act (“C.L.R.A.”), R.S.O. 1990, c.C.12, as am., section 24; and
(c) Divorce Act, R.S.C. 1985, c.3, as am., section 16.
[13] It is helpful to remember that the best interests of the child is the only test, parental and other rights being secondary. See, for example: Young v. Young (1993), 1993 CanLII 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.); Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.); and Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38.
[14] At the heart of the best interests test are the rights of children.
[15] Article 12, United Nations Convention on the Rights of the Child, 2 September 1990, 1577 UNTS 3, provides as follows:
Article 12
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
[16] This convention, adopted by Canada in 1991, is recognized in the Preamble of the C.Y.F.S.A.. The Preamble also states:
The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard.
[17] Those rights include section 7, Canadian Charter of Rights and Freedoms, Constitution Act 1982, R.S.C. 1985, c.11, namely:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[18] There are specific statutory provisions regarding representation of children and their right to be heard, as hereafter discussed, including:
(a) C.Y.F.S.A., sections 78 and 211;
(b) C.L.R.A., sections 24 and 64; and
(c) Courts of Justice Act (“C.J.A.”), R.S.O. 1990, c.C.43 as am., section 89.
[19] Since the adoption of the United Nations Convention on the Rights of the Child, the courts have recognized the entitlement of children to participate and be heard in cases involving their care and future. See, for example: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (S.C.C.); A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30; S.G.B. v. S.J.L., 2010 ONCA 578; and B.J.G. v. D.L.G., [2010] Y.J. No. 19 (Yuk. S.C.J.).
Jurisdiction for Children’s Lawyer Appointment
[20] The following statutory provisions are relevant to this motion regarding the appointment of the Children’s Lawyer to represent children:
(i) C.Y.F.S.A., section 78 (1) – (4):
- LEGAL REPRESENTATION OF CHILD – (1) A child may have legal representation at any stage in a proceeding under this Part.
(2) COURT TO CONSIDER ISSUE – Where a child does not have legal representation in a proceeding under this Part, the court,
(a) shall, as soon as practicable after the commencement of the proceeding; and
(b) may, at any later stage in the proceeding,
determine whether legal representation is desirable to protect the child’s interests.
(3) DIRECTION FOR LEGAL REPRESENTATION – Where the court determines that legal representation is desirable to protect a child’s interests, the court shall direct that legal representation be provided for the child.
(4) CRITERIA – Where,
(a) the court is of the opinion that there is a difference of views between the child and a parent or a society, and the society proposes that the child be removed from a person’s care or be placed in interim or extended society care under paragraph 2 or 3 of subsection 101 (1);
(b) the child is in the society’s care and,
i. no parent appears before the court, or
ii. it is alleged that the child is in need of protection within the meaning of clause 74 (2) (a), (c), (f), (g) or (j); or
(c) the child is not permitted to be present at the hearing,
legal representation is deemed to be desirable to protect the child’s interests, unless the court is satisfied, taking into account the child’s views and wishes, given due weight in accordance with the child’s age and maturity, that the child’s interests are otherwise adequately protected.
(ii) C.Y.F.S.A., section 211:
- Legal representation of child – (1) A child may have legal representation at any stage in a proceeding under section 194, 196, 197, 198, 207 or 208 and subsection 78 (2) applies with necessary modifications to such a proceeding.
(2) CHILDREN’S LAWYER – The Children’s Lawyer may provide legal representation to a child under this Part if, in the opinion of the Children’s Lawyer, such representation is appropriate.
(3) COURT MAY REFER MATTER TO CHILDREN’S LAWYER – Where the court determines that legal representation is desirable, the court may refer the matter to the Children’s Lawyer.
(iii) C.J.A., section 89 (1) – (3.1):
- CHILDREN’S LAWYER – (1) The Lieutenant Governor in Council, on the recommendation of the Attorney General, may appoint a Children’s Lawyer for Ontario.
(2) QUALIFICATION – No person shall be appointed Children’s Lawyer unless he or she has been a member of the bar of one of the provinces or territories of Canada for at least ten years or, for an aggregate of at least ten years, has been a member of such a bar or served as a judge anywhere in Canada after being a member of such a bar.
(3) DUTIES – Where required to do so by an Act or the rules of court, the Children’s Lawyer shall act as litigation guardian of a min or other person who is a party to a proceeding.
(3.1) SAME – At the request of a court, the Children’s Lawyer may act as the legal representative of a minor or other person who is not a party to a proceeding.
[21] Section 78, C.Y.F.S.A., addresses representation in child protection proceedings under Part V while section 211 involves adoption and openness proceedings in Part VIII.
[22] Despite the expiration of the appeal period and the finality of adoption orders, I am of the view sections 78 and 211 do apply given the nature of the claim presented by J.L.S. in this case. If I am incorrect in this interpretation, it can be said there is a legislative gap, bringing into operation the parens patriae jurisdiction of the court for the benefit of the children and protection of their rights. In this regard, representation can be seen as necessary. See: E. v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388 (S.C.C.).
[23] Regardless, there can be no dispute that section 89 (3.1), C.J.A., provides statutory authority to request the Children’s Lawyer act as the legal representative of the children. There are no limitations regarding the nature of the case. See, for example: C.R. v. Children’s Aid Society of Hamilton (2004), 2004 CanLII 34407 (ON SC), 4 R.F.L. (6th) 98 (Ont. S.C.J.); and C. (M.A.) and D. (C.A.) v. K. (M), 2008 ONCJ 212.
Should the Children’s Lawyer Be Appointed in This Case?
[24] There are two issues in this topic, namely the merits of appointment and whether such is premature.
[25] The Children’s Lawyer has been requested to represent children in a variety of circumstances. See: Children’s Aid Society of Durham v. S. (A.), 2011 ONSC 1001, for a helpful summary in this regard at paras. 84-109. The underlying claim in this case is unique and the court will be asked to address issues that have not been previously decided.
[26] In this case, I conclude representation is required having regard to the following factors:
(a) the overriding importance of children’s rights to know about and participate involving their lives, to express their views and have their voices heard as previously described in the statutory provisions and caselaw;
(b) the children are now 13 and 11 years of age and are at a level of maturity to understand;
(c) the children know about their adoption and of the current proceedings, to some extent, and have expressed concern as to the potential impact on their lives;
(d) the children have some knowledge of their biological parents; and
(e) it appears the children are capable of expressing their views.
[27] The Children’s Aid Society and the adoptive parents say the appointment of the Children’s Lawyer is premature. They submit the court ought first determine the issue of jurisdiction to overturn the adoption order or allow the appeal of the protection order. Reliance is placed on the finality of adoption orders as provided in the C.Y.F.S.A.
[28] With respect, I disagree with this position. The issues raised in this case have not been previously decided. The statutory provisions are being challenged. I take the view the children must be allowed to participate because of those very factors. Further, it will be most helpful for the court to hear submissions of counsel for the children on these important and unique issues.
[29] It is important to recognize the role of the Children’s Lawyer under section 89(3.1), C.J.A., namely: to provide full, complete and independent representation of the children protecting their interests alone, ensuring all evidence relevant to their best interests is before the court, marshal evidence on their behalf, test the evidence of others and present submissions to the court as to the admissibility and merit of evidence tendered and the relevant principles of law that apply. See: C.R. and Children’s Aid Society of Hamilton, supra, at para. 26.
[30] The comments of Benotto J.A. in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, at paras. 65-66 and 68-70 are worth repeating:
[65] It has always been a challenge for family law courts to find a way for children to express their views without exposing them to further trauma or causing more damage to the family. Those who work in the family law system are all too aware that children remain part of the family long after a judicial decision is reached. The process of determining the child’s true wishes and preferences requires delicacy, for to undertake the process without expertise may further hurt the child and fracture family relationships.
[66] The Children’s Lawyer has been recognized as a model for addressing this challenge. The Honourable Donna J. Martinson and Caterina E. Tempesta, wrote that:
In Canada, the most expansive child representation program is offered by the Office of the Children’s Lawyer…[it] may serve as a model for other jurisdictions in promoting access to justice for children by ensuring that their views are heard in court processes.
[68] The Children’s Lawyer is an independent statutory office holder appointed by Cabinet through the Lieutenant Governor. She derives her independent powers, duties and responsibilities through statute, common law and orders of the court.
[69] Her fiduciary duties to the child require undivided loyalty, good faith and attention to the child’s interests, to the exclusion of other interests, including the interests of the child’s parents, the interest of the Crown and the interests of MAG. As stated by Abella J., as she then was, in Re W. (1980), 1980 CanLII 1958 (ON CJ), 27 O.R. (2d) 314 (Prov. Ct.), at p. 317, the Children’s Lawyer has an obligation to ensure that the views expressed by the child are freely given without duress.
[70] The Children’s Lawyer not only represents the child’s interests; she provides a safe, effective way for the child’s voice to be heard. For her to do this, she must provide a promise of confidentiality. Children must be able to disclose feelings and facts to the Children’s Lawyer that cannot or will not be communicated to parents. Children’s interests can be averse to that of their parents. Feelings of guilt and betrayal that may influence a child require a safe person to speak to.
Summary
[31] This case raises serious issues, potentially involving a wrongful protection order and with reliance on flawed Motherisk drug testing evidence. The lives of many people have and are impacted in this case, the children, biological parents, adoptive parents and the community at large.
[32] The children’s interest in this case is independent of others and their right to be involved from the outset must be allowed. Their voices must be heard. I am satisfied it is in the best interests of these children to request the Children’s Lawyer act as their legal representative in order that their rights be protected. I am most pleased the Children’s Lawyer is prepared to accept this appointment.
[33] In result, an order is granted pursuant to section 89(3.1), C.J.A., requesting the Children’s Lawyer act as the legal representative of Z. and D. in this proceeding.
[34] I wish to express my appreciation to counsel for their assistance and in the manner of addressing this difficult and sensitive matter. As the case management judge, I request that counsel advise when the Children’s Lawyer has completed the necessary steps so as to continue this proceeding.
D.J. Gordon J.
Released: December 12, 2018
COURT FILE NO.: FS-124-18
DATE: 2018-12-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Family and Children’s Services of the Waterloo Region
Applicant
– and –
J.L.S.
Respondent
REASONS FOR DECISION
D.J. Gordon J.
Released: December 12, 2018