COURT FILE NO.: FS-18-06661

DATE: 20191028

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

jewish family and child service of greater toronto Applicant/Respondent on Appeal

– and –

E.K.B. Respondent/Appellant on Appeal

– and –

S.J.B Respondent on Appeal

– and –

R.G. Respondent on Appeal

Sara Westreich and Arthika Srivarapathy for the Respondent on Appeal Joseph Kary, for the Appellant on Appeal Self-represented Self-Represented (Not Present) Patric Senson, for the Office of the Children’s Lawyer Harjot Dosanjh, for the Office of the Public Guardian and Trustee, Intervenor Susan Sack and Andrea Acri for Renatta Austin, Intervenor

HEARD at Toronto: July 23, 24, 25 and 26, 2019

Appeal from the decision of the Honourable Justice Sager dated September 21, 2018, Jewish Family and Child Service of Greater Toronto v. K.B., 2018 ONCJ 650

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3), which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re 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) Prohibition re identifying person charged—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.

142(3) Offences re publication—A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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.

KRISTJANSON, J.

Overview

[1] This is an appeal from a summary judgment decision in a child protection application brought by Jewish Child and Family Service of Greater Toronto (JFCS). The child protection summary judgment motion was argued on May 29 and July 16, 2018. In September 2018 the motion judge ordered that the appellant’s two children were to be placed in extended society care (formerly, Crown wardship) with no order for access to the mother, EKB.

[2] In December 2017, before the summary judgment motion was argued, EKB was declared a “special party” under Rule 2(1) of the Family Law Rules. This means she was found to be a party who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, about an issue in the case and who, as a result, requires legal representation.

[3] The Public Guardian and Trustee (PGT) was appointed as a representative for EKB under Rule 4(3) of the Family Law Rules, O. Reg. 114/99. The PGT appointed a lawyer as counsel for the PGT representing EKB on the summary judgment child protection motion. The issue of whether EKB was no longer a special party, or that she was then mentally capable, was not raised before the judge on the motion.

[4] EKB is no longer a special party. She is represented by counsel on this appeal. The appellant challenges the procedural fairness of the summary judgment proceeding on several grounds. At the heart of the challenge is EKB’s argument that she was adversely affected by her inability to give instructions and direct counsel after she was declared a special party. EKB argues that the motion was procedurally unfair since she was denied the right to retain and instruct counsel in child protection proceedings, a right which she states is protected by section 7 of the Charter of the Rights and Freedoms. EKB also argues that she was no longer a special party by the time of the summary judgment motion, but that she was prevented from raising this issue earlier since special party status designation is not subject to reassessment or appeal. EKB further argues that the hearing was procedurally unfair since the motion judge, the PGT and a lawyer appointed by the PGT failed to reassess her special party status during the summary judgment motion. EKB also claims ineffective assistance of counsel and submits that the motions judge made several errors of fact and law. I dismiss the appeal on all grounds, as discussed below.

Issues

[5] I have grouped the issues into six main categories:

1. Was the summary judgment motion procedurally unfair because EKB was no longer a special party at the time of the motion? Did the motion judge, the PGT or the lawyer fail to meet their duties to reassess her special party status during the summary judgment motion?

2. Was the summary judgment motion procedurally unfair, or conducted in a manner contrary to Charter values, because, as a special party, EKB was denied the right to retain and instruct counsel in a child protection proceeding?

3. Was the motion procedurally unfair because the lawyer appointed by the PGT provided ineffective assistance on the motion?

4. Was the motion procedurally unfair because of the conduct of the PGT?

5. Did the motion judge err in fact or law in her decision?

6. Are there other issues which would lead to granting this summary judgment appeal?

The Decision of the Motion Judge

[6] I summarize the motion judge’s findings of fact, and her decision, in this section. EKB is the mother of two children who are now 8 and 9 years old. JFCS started a child protection application seeking an order of extended society care for the children under subsection 101(1) of the Child and Youth Family Services Act, S.O. 2017, c. 14, Sched. 1 (CYFSA). The JFCS also sought an order that the mother have no access to the children, a restraining order against the mother, and that the maternal uncle SJB be granted access to the children.

[7] The JFCS started the child protection application in December 2015 after the mother’s first involuntary hospitalization for mental health issues. EKB was placed on a Form 1 under the Mental Health Act, RSO 1990, c M.7, at Sunnybrook Hospital (Sunnybrook) as a result of an amphetamine-induced psychotic episode caused by the mother’s use of medication (Adderall and Dexedrine) prescribed to treat Attention Deficit Hyperactivity Disorder. EKB had been taking Adderall and Dexedrine for 20 years. The children were placed in the care and custody of the JFCS on December 8, 2015, and then placed with the mother’s friend as a place of safety. On February 10, 2016 the children returned to the mother’s care subject to supervision by the JFCS.

[8] In July 2016 the JFCS placed the children in a foster home because of concerns about the deterioration of the mother’s mental health, and concerns that the mother would remove the children to Israel as she had violated a court order to deliver the children’s passports to the JFCS. By court order of August 2016, the children were placed in the care of JFCS on a temporary, without prejudice basis, with access to the mother in the JFCS’s discretion. On August 30, 2016 that order was made with prejudice, and a summary judgment motion was scheduled for November 7, 2016.

[9] On August 12, 2016, the police took EKB to North York General Hospital (NYGH) and she was involuntarily hospitalized on a Form 1 under the Mental Health Act. She was released on August 22, 2016 on a Community Treatment Order (CTO). The police returned the mother to the hospital on August 28, 2016, and she was again involuntarily hospitalized on a Form 1. She remained in hospital on a Form 3 due to her mental state. EKB refused anti-psychotic treatment. Following a hearing before the Consent and Capacity Board, in September 2016 the mother was found to be incapable of consenting to treatment decisions. A substitute decision-maker was appointed and consented to anti-psychotic treatment. EKB was released from NYGH in September 2016 with a CTO. The November 2016 summary judgment date was vacated after the mother was found not competent to make treatment decisions.

[10] EKB was diagnosed with amphetamine-induced psychotic disorder during the August-September 2016 hospital stay. The psychiatrist found symptoms were “impaired concentration, hallucinations, delusions, with poor impulse control.” At discharge, the psychiatrist recommended that the appellant refrain from using amphetamines and found that her insight was “grossly impaired” in that she did not feel she suffered from psychotic symptoms.

[11] Following the three NYGH hospitalizations in August/September 2016, the finding of EKB’s incapacity to consent to treatment in September 2016, and the departure of her counsel of record, the JFCS brought a motion on October 20, 2016 to find EKB a “special party” and to appoint the PGT as her representative. EKB attended the motion hearing with privately retained counsel, Robert Shawyer. Mr. Shawyer vouched for EKB’s capacity to instruct counsel. EKB testified as a witness. The JFCS’s motion to have EKB declared a special party in 2016 was dismissed.

[12] On November 30, 2016 the mother met with JFCS and denied using amphetamines. In fact, the day before the mother obtained a refill of her amphetamine prescription from her longtime treating psychiatrist, Dr. Hoffer. The JFCS asked the mother to discontinue treatment with Dr. Hoffer and see a new psychiatrist, Dr. Zalan. The mother agreed, but never met with Dr. Zalan.

[13] In January 2017, the parties agreed to a Parenting Capacity Assessment. Dr. Jean Wittenberg concluded that the mother lacked the capacity to safely care for her children. Dr. Wittenberg’s conclusions were disputed by EKB on the summary judgment motion, and the motion judge did not rely on Dr. Wittenberg’s conclusions in reaching her decision.

[14] In March 2017 Justice Sherr found the children to be in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Service Act, R.S.O. 1990, c C.11 (CFSA). Justice Sherr found that the children were likely to suffer physical harm by their mother or as a result of her failure to adequately to care for, provide for, supervise or protect the children because of her mental health issues and hospitalizations for amphetamine-induced psychosis caused by medications that the mother continued to rely on.

[15] In May 2017 the mother was taken to the hospital because of expressions of suicidal ideation; a psychiatrist assessed her, found she was not at risk of self-harming, and she was discharged.

[16] The mother made many complaints to JFCS that the children were not receiving proper care from the foster parents. The mother somehow obtained the address of the foster parents and in September 2017 asked Emergency Services to attend and check on her children as she believed they were not safe.

[17] On September 25, 2017, the mother attended at the children’s school as she felt that the JFCS was not addressing her concerns about the children. The school principal called police, and the school went into lockdown mode because of this incident.

[18] On September 27, 2017 Justice Sherr issued a restraining order preventing EKB from attending at or having contact with the foster parents and the school or contacting or having any access (direct or indirect) with the children, except with the approval of the JFCS. The JFCS relocated the children to a new, undisclosed foster placement and school as a result of EKB’s conduct.

[19] After the JFCS relocated the foster home and school, between October and November 2017 the mother made many Facebook posts raising her concerns that the children were malnourished, poorly dressed, and suffering from bruises and scrapes. The Facebook posts violated the statutory publication ban which applies in child protection cases, since the mother referred to the children being in the care of the JFCS.

[20] The mother also posted flyers at a subway station and a Shopper’s Drug Mart near her home. The flyers asked, “Have you seen my children?”, contained photos of the children, and the mother’s phone number.

[21] On November 1, 2017, the mother posted a four-hour video on Facebook alleging that JFCS and the foster parents were abusing the children. The posting of the video also violated the statutory publication ban.

[22] On November 20, 2017 the mother attended at the children’s foster home at 6 a.m., trying to force her way inside. She was criminally charged with breaching the September 2017 restraining order.

[23] The JFCS brought another special party status motion in December 2017. EKB did not attend on this motion, unlike the first PGT motion on October 20, 2016, at which she testified. EKB’s then-counsel, Richard Brown, did not confirm that EKB had legal capacity to instruct counsel. Instead, he advised the court that he would be getting off the record. The PGT attended but took no position on EKB’s capacity.

[24] In his oral reasons for decision, Sherr, J. found that the many incidents set out in the affidavit evidence showed that EKB's mental health had deteriorated to a point where she was a special party. Sherr, J. made an order December 18, 2017 declaring EKB a special party in the child protection proceeding and appointing the PGT as her representative.

[25] On January 4, 2018, two weeks after the appointment of the PGT as personal representative, the police arrested EKB and took her into custody for disruptive behaviour at a Canadian Tire Store. She was charged with two criminal offences, resolved by diversion through the Mental Health Court at the Ontario Court of Justice.

[26] On January 9, 2018, EKB was again involuntarily hospitalized. Toronto police brought EKB to the NYGH on a Form 2 Mental Health Act warrant sworn by her community psychiatrist, Dr. Mary Kathryn McLean, out of concern that EKB posed a risk of harm to herself. EKB was observed to be delusional and, at times, hallucinatory. She was diagnosed with a psychotic disorder, amphetamine-induced psychosis, bipolar affective disorder and abuse of ADD medications. EKB refused the anti-psychotic treatment prescribed by the hospital psychiatrists. She had a CCB hearing on January 21, 2018. She was declared incapable to consent to treatment. A substitute decision-maker was appointed, and anti-psychotic treatment began immediately. She was discharged in February 2018 on a CTO.

[27] On February 25, 2018, the mother emailed 52 recipients, including some at the camp the girls attended and at their former school. The email included a flyer, a photo of the mother with the children and a JFCS worker during an access visit, and a copy of the court order appointing the PGT.

[28] The mother posted an online petition on April 17, 2018, entitled “Don’t let JF&CS abduct my daughters.” The post mentions the children by their first names and includes the mother’s full name and a reference to JFCS. This too violates the statutory publication ban.

Mother’s Access Prior to Summary Judgment Motion

[29] The mother’s access to the children had been suspended since September 2017. The motion judge held at para. 77:

JFCS’s affidavit evidence describes many concerning features of the mother’s visits with the children when they did take place and which the mother did not deny. They include:

(a) Discussing the foster parents’ care of [the children] with the children;

(b) Prompting the children to tell JFCS staff that they want to go home and that they wish to see their mother more;

(c) Telling the children that they will be returning home soon;

(d) Speaking negatively of the foster parents and JFCS to or in front of the children;

(e) The mother at times became argumentative and combative with JFCS workers in front of the children;

(f) The mother coached the children to make allegations against their foster parents of mistreatment and neglect;

(g) The mother made inappropriate promises to the children including that there would be additional visits;

(h) The mother claimed that the children were being abused in their foster home, are malnourished and that one of the children was pregnant; and,

(i) The mother accused a JFCS worker of abusing [the children] in front of the children.

[30] Following an access visit in June 2017, the mother’s access was suspended as JFCS staff believed that the mother appeared to be displaying the same presentation and behaviour that led to the 2015 hospitalization for amphetamine-induced psychosis. JFCS reinstated supervised access in August 2017. After a visit, one of the children began showing anxiety and stress; access was suspended again between August 29 and September 12, 2017. It was shortly after this that the mother sent Emergency Services to the home of the foster parents and attended at the children’s school.

[31] On October 2, 2017 the JFCS again suspended access because of the mother’s behaviour. The mother arrived late for the October 25, 2017 access visit, for which she dressed in a wedding gown. She was extremely agitated and could not be calmed down by staff. She was escorted from the premises by security and the visit did not take place.

[32] The motion judge found at para. 82 that: “Despite the concerns around the mother’s access to [the children] it is not contested that the mother and children love each other and were affectionate with one another during visits and that the children were happy to see their mother. When the mother was well, the visits had some positive aspects to them.”

Plan of Care for the Children

[33] The mother’s plan of care for the children presented at the summary judgment motion was for the children to be returned to her care, with or without JFCS supervision. She stated she was living in a one-bedroom apartment, on ODSP, and that her mental health case manager would help with housing and services for the children. The mother did not provide details of her housing to the JFCS and refused to permit them to attend her home for a mandatory home visit.

[34] The mother stated she had three close friends to assist her and hoped her brother SJB would assist as well. She expressed a desire to move to Israel but given the instability the children had been through her priority was a safe and happy home with her children. The mother stated that she would follow the advice of third-party parenting professionals to ensure her children were safe and well cared for.

Efforts Made by JFCS to Support the Mother

[35] The motion judge reviewed the uncontested evidence of JFCS efforts to help the mother and concluded at paras. 100-101 that:

[100] The uncontested evidence demonstrates that JFCS’s efforts to assist the mother in addressing the protection concerns were significant. JFCS provided the mother with supports and the tools to address the issues that led to her children being taken to a place of safety but she was unable or unwilling to utilize those tools.

[101] The society was relentless in their attempts to engage the mother and assist her in obtaining services, manage her finances and secure housing. She was unable or unwilling to take advantage of the assistance being afforded to her by refusing assistance, refusing to meet with the society or by misleading the society.

Legal Conclusions

[36] The motion judge analyzed the legal considerations applicable to protection applications brought under section 101 of the CYFSA, and the children’s best interests under section 74(3) of the CYFSA. She determined that there was no genuine issue requiring a trial based on the evidence before her, without using expanded fact-finding powers under Family Law Rule 16(6.1). She found that on the evidence not disputed by the mother, there were no material facts in dispute that create a genuine issue requiring a trial, and the summary judgment process was a fair and proportionate process permitting the court to conclude, on a final basis, that it was in the children’s best interests to be placed in the extended care of the JFCS.

[37] The motion judge found that while the JFCS and the mother disagreed about the mother’s mental health diagnosis, the Court instead focused on the mother’s “actions, inaction, choices and behaviour that put the children at risk; not the cause.” The motion judge found it was clear, and undisputed, that the mother had a long history of struggling with mental health issues, finding at paras. 111-112 that:

[111]...…She has been in hospital on four occasions since 2015 due to mental health crises; she was brought to hospital by the police, on one occasion in restraints; she was found during one hospitalization to be incapable of making treatment decisions; one of her treating psychiatrists took extraordinary steps to have the mother brought to hospital by the police; she has been kept in hospital against her will by utilizing the Mental Health Act; she is in receipt of ODSP due to mental health struggles; she has a mental health worker; she has had criminal charges diverted by the mental health court; she has repeatedly been diagnosed as suffering from psychosis; and the Public Guardian and Trustee was appointed in this proceeding to act as her legal representative.

[112] In addition, the mother has admitted to having engaged in conduct that put her children at risk of harm and which caused them significant instability. She attended at the foster home and the school when she knew she was not permitted to do so. She attended at the foster home in the face of a restraining order; she caused the children’s foster home and school to be changed; she made details of this proceeding public on numerous occasions despite repeatedly being cautioned by the court that she was violating a legislated publication ban.

[38] The motion judge specifically considered the least intrusive order. She found on the evidence that the mother could not identify the source of difficulties in her life other than the involvement of the JFCS; she did not recognize that she was unwell and required intervention; and there was no evidence of improvement in the mother’s mental health since the children were first brought into the care of the JFCS in August 2016.

[39] The motion judge found at para. 114 that the mother “has shown no insight into the protection concerns and as a result she has never demonstrated a willingness to cooperate with the society to demonstrate the protection concerns.” She concluded that the mother’s actions and judgment made it clear that the mother was incapable of addressing the protection concerns and could not be entrusted with the care of the two children. As the mother had not seen the children since 2017, her plan of care “does not have any air of reality to it.” The mother’s history showed that she would not comply with a supervision order. The motion judge found that on all aspects of the children’s best interests, the JFCS’s plan better met the children’s needs.

[40] The motion judge considered the children’s views and preferences, that they had consistently expressed a desire to return to their mother’s care and have access with her. The Court weighed this against other factors, including that the mother poses an ongoing risk to the children’s safety and well-being. The motion judge, weighing relevant factors based on the evidence before her, concluded that “the risks associated with fulfilling the children’s desire to have contact with their mother are so severe and so likely to seriously jeopardize their future well-being that the court is not in a position to give effect to their views and wishes.”

[41] The motion judge ordered that the children be placed in extended society care with no access by the mother. She ordered that the children and a maternal uncle, SJB, were reciprocal access holders, at the discretion of the JFCS. She ordered a restraining order with respect to the mother. These orders were made under s. 101(1), s. 104 and s. 137 of the CYFSA.

Procedural Background to the Appeal

[42] EKB’s Notice of Appeal was served on November 1, 2018, beyond the prescribed deadline. By order of Justice Kiteley dated December 21, 2018, EKB and the Office of the Children’s Lawyer (“OCL”) were granted extensions of time to file their Notices of Appeal.

[43] The appeal was case managed at the Superior Court of Justice. Counsel from the Ministry of the Attorney General attended a case conference on April 15, 2019, and Justice Stevenson ordered EKB to particularize her claims against the PGT, claims about ineffective assistance of counsel, and constitutional claims about Charter breaches.

[44] After an exchange of correspondence with the Ministry of the Attorney General, EKB’s counsel confirmed that she was not challenging the constitutional validity of the “special party” provisions in Rules 2(1) and 4(3) of the Family Law Rules and that she was not challenging the constitutionality of any government action. Justice Stevenson made an endorsement to that effect.

[45] The appellant did not name the PGT nor the appointed lawyer as parties to the appeal. In a March 18, 2019 endorsement, Justice Stevenson found that the appellant’s materials raised allegations about the PGT, and she ordered the appellant to serve the PGT.

[46] The PGT sought particulars of the allegations about the PGT and the lawyer. The PGT also sought clarification about whether the appellant contended that EKB was no longer a special party at the time of the summary judgment motion.

[47] In May 2019 EKB’s lawyer confirmed that “the actions and statements of counsel and of other agents of the PGT are relevant to the issue that the appellant was adversely affected by her inability to direct or give instructions with respect to her own case.” His letter also states that “we do not concede that EKB should have been properly considered a special party at any time.”

[48] In a decision released June 24, 2019, I granted intervenor status to the PGT and to the lawyer: Jewish Family and Child Services v. E.K.B. et al., 2019 ONSC 3942.

[49] Fresh evidence motions brought by EKB, the JFCS, the lawyer and the PGT were argued at the start of the appeal on July 23. I admitted most of the fresh evidence with oral reasons for decision given on July 23 and July 24.

Issue #1: Was the summary judgment motion procedurally unfair since EKB was no longer a special party at the time of the motion?

[50] There are three legal issues flowing from EKB’s argument that she was not a special party by the time the summary judgment motion was argued:

(a) Was EKB prevented from raising this issue earlier, since special party status designation was not subject to reassessment or appeal?

(b) Did the motion judge err in failing to raise EKB’s lack of special party status of her own initiative at the motion?

(c) Did the PGT or appointed legal counsel fail to meet their obligations in failing to identify and act on EKB’s lack of special party status at the motion?

[51] I find that EKB had the opportunity to appeal the special party finding and failed to do so. I also find that EKB had the opportunity to bring a motion to discharge the PGT as personal representative and conduct the litigation herself if she was no longer a special party. She did not do so. The appellant cannot raise the issue that she was not a special party at the hearing for the first time on appeal. This is a collateral attack on the Court’s special party order. EKB has waived her rights by not raising the issue at an earlier stage. Neither the motion judge, the lawyer or the PGT breached any duty to bring up EKB’s incapacity before the motion, on the facts here.

General Framework: Special Party Status Under Family Law Rules

[52] A special party under Rule 2(1) of the Family Law Rules is defined to include a party who is or appears to be mentally incapable under the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation. The Substitute Decisions Act, 1992 defines two kinds of incapacity: incapacity to manage property and incapacity to make personal care decisions.

[53] Incapacity to manage property is defined in section 6 of the Substitute Decisions Act, 1992:

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[54] Incapacity to make personal care decisions is defined in section 45 of the Substitute Decisions Act, 1992:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[55] The test for a special party has been interpreted to mean that a party is mentally incapable about an issue in a case where the party is not able to understand information that is relevant to making a decision regarding the issue, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the issue: Children's Aid Society of Niagara Region v. D. (W.) (2003), 2003 CanLII 2293 (ON SC), 43 R.F.L. (5th) 286 (Ont. S.C.), at para. 11; York Region Children's Aid Society v. V. (J.H.), 2016 ONSC 4996, [2016] W.D.F.L. 5548, at para. 14.

[56] In York Region Children's Aid Society, at para. 15, the Court set out components of the test to determine mental capacity in a family law proceeding. They include the following:

(a) the onus is on the party alleging mental incapacity;

(b) the test is functional ability, particular to the task or activity at issue;

(c) the ability to appreciate reasonably foreseeable consequences includes the ability to consider a reasonable range of possible outcomes, positive and negative;

(d) caution must be exercised before removing a party's right to self-determination.

[57] The test for capacity for consent to treatment or make other personal care decisions under section 45 of the Substitute Decisions Act, 1992, differs from the test for special party status. The latter involves the ability to understand financial and legal issues which are “significantly higher on the competency hierarchy”: Calvert (Litigation Guardian of) v. Calvert (1997), 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281 (C.J.), at para. 56, aff’d, (1998), 1998 CanLII 3001 (ON CA), 37 O.R. (3d) 221, leave to appeal refused, [1999] S.C.C.A. No. 161. Part of the test in determining whether the party is a special party is determining whether the individual is capable of instructing counsel. As set out by Justice Price in Constantino v. Constantino, 2016 ONSC 7279, at paras. 47-48:

[47] To meet the test for capacity to instruct legal counsel, a person must:

a) Understand what they have asked the lawyer to do for them and why;

b) Be able to understand and process the information, advice, and options the lawyer presents; and

c) Appreciate the advantages and drawbacks and the potential consequences associated with the options they are presented with.

[48] The test for special party status includes the ability to instruct counsel and is thus the test applicable in section 6 of the Substitute Decisions Act, 1992.

Issue 1(a): Was EKB prevented from raising this issue earlier, since special party status designation was not subject to reassessment or appeal?

[58] Although EKB had retained private counsel and testified at the December 2016 special party motion, EKB chose not to participate in the December 2017 motion leading to the finding of special party status and the consequent appointment of the PGT as EKB’s representative. By failing to appeal the December 2017 court order, but now asserting that she was not a special party at the time, EKB is collaterally attacking the validity of the court order.

[59] The Supreme Court of Canada in R. v. Bird, 2019 SCC 7, [2019] S.C.J. No. 7, explained the importance of the rule against collateral attacks on court orders at paras. 21-22:

[21] A collateral attack is an attack on an order “made in proceedings other than those whose specific object is the reversal, variation or nullification of the order” …This Court has recognized a general rule against collateral attacks on court orders: with limited exceptions, an order issued by a court must be obeyed unless it is set aside in a proceeding taken for that purpose...

[22] There is a powerful rationale for the general rule precluding collateral attacks on court orders:

... the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice. To allow parties to govern their affairs according to their perception of matters such as the jurisdiction of the court issuing the order would result in uncertainty. Further, “the orderly and functional administration of justice” requires that court orders be considered final and binding unless they are reversed on appeal. … (internal citations omitted)

[60] In R. v. Bird, the Supreme Court also held at para. 23 that “people must have an effective means to challenge court orders, particularly when those orders are alleged to violate constitutional rights”, and “[w]here a collateral attack is the only way to effectively challenge a court order, a collateral attack will be permitted.”

[61] EKB argues that she did not have the right to appeal Justice Sherr’s determination of special party status, relying on the Court of Appeal decision in Must v. Shkuryna, 2015 ONCA 665. EKB has misinterpreted that decision. In Must v. Shkuryna the Superior Court of Justice found a family law litigant to be a special party and appointed the PGT as the personal representative. The litigant appealed to the Court of Appeal. The Court of Appeal quashed the appeal because appeals from interlocutory orders of the Superior Court must be appealed to the Divisional Court.

[62] EKB did have the right to appeal the finding of special party status. The proper appeal route from an interlocutory order of a judge of the Ontario Court of Justice is to a single judge of the Superior Court of Justice, under section 19(4) of the Courts of Justice Act, R.S.O. 1990, c. C.43: P.M. v. M.A., 2017 ONCA 6.

[63] The appellant does not explain why she failed to appeal the special party finding and appointment of the PGT to the Superior Court of Justice. Even though EKB was under involuntary hospitalization at NYGH when the appeal period expired, upon her discharge from NYGH, EKB could have sought an order for extending timelines for the appeal. She did not do so.

Waiver: Failure to Set Aside Special Party Finding Prior to the Summary Judgment Motion

[64] If EKB was no longer incapable at some point after the December 2017 order and before the summary judgment motion in May 2018, she could have raised the issue anew and sought to set aside the special party status finding. Sherr, J. was case managing the child protection proceeding. EKB did not raise her mental capacity on a February 18, 2018 attendance before Justice Sherr dealing with a motion for production of records. EKB did not raise her mental capacity on a March 20, 2018 attendance before the motion judge. This was the date originally set for the summary judgment motion, at which time the motion judge of her own motion determined that the JFCS affidavits needed to be reduced in length and ordered the filing of the condensed Amended JFCS Motion Record. EKB did not raise her mental capacity on either day of the summary judgment motion hearing.

[65] The Family Law Rules do not outline the procedure to remove a representative. If the Family Law Rules do not cover a matter adequately, Rule 1(7) provides that the court may give directions, and the practice is to be decided by analogy to the Family Law Rules, other relevant statutes, and, if the court considers it appropriate, by reference to the Rules of Civil Procedure, R.R.O. Reg. 194.

[66] Rule 7.06 (1)(b) of the Rules of Civil Procedure provides that where, during a proceeding, “a party under any other disability for whom a litigation guardian has been acting ceases to be under disability, the party or the litigation guardian may move without notice for an order to continue the proceeding without the litigation guardian.” Thus, if indeed EKB had capacity, she could have brought a motion, without notice, to continue the child protection proceeding without the PGT as representative.

[67] EKB did not bring a motion to continue the proceeding without the PGT acting as her personal representative. If EKB contended that she was capable, as the party asserting capacity, she would have had the onus at that time to satisfy the court on a balance of probabilities that she was capable. Having failed to bring a motion prior to the summary judgment hearing to continue the litigation without a personal representative, she has waived her rights to raise that issue, and cannot raise it now for the first time on appeal.

Issue 1(b): Did the motion judge err in failing to raise EKB’s lack of special party status of her own initiative at the motion?

[68] The appellant submits that the capacity of a person must be assessed by the judge when a motion is heard. Counsel for the appellant states that the issues relate to interpreting the Family Law Rules in accordance with Charter values, including how and when special party status should be assessed and reviewed throughout the litigation. The appellant asserts that the motion judge’s failure to reassess the state of EKB’s mental health at the start of the summary judgment motion led to a lack of procedural fairness. EKB relies on a series of “red flags”, including:

(a) The appellant filed an affidavit in her own name, which “suggests that the appellant was able to critically review and correct information that was given to her to sign”; if a special party can swear an affidavit in her own name, she should be presumed not to be a special party as she had meaningful input into developing the evidence.

(b) Dr. Hoffer’s affidavit of March 2018 establishes she was not psychotic.

(c) The evidence shows that EKB’s psychotic episodes were amphetamine-related and episodic, not an ongoing condition.

(d) A February 22, 2018 report from the NYGH Outpatient Clinic, two months after the special party finding, found that her mental health and cognitive assessment were within normal limits and there was no evidence of delusional thinking or thought disorder.

(e) At the summary judgment motion in July the lawyer asserted she was taking instructions from her client, on the procedural issue of asking for an adjournment.

[69] Essentially, EKB asserts that the motion judge, of her own volition and without anyone raising the issue, had to deduce from the “red flags”, including contested affidavits of third parties filed in response to the summary judgment motion, that EKB had legal capacity, and on that basis the motion judge should have started a reassessment. EKB asserts that this would accord with Charter values, to protect the security of the person under Charter section 7. I do not accept this argument.

[70] First, the motion judge’s role is to adjudicate, not to investigate: Children’s Aid Society of Peel (Region) v W(M.J.), 1995 CanLII 593 (ON CA), 23 O.R. (3d) 174, at para. 48. As an adjudicator, the motion judge must review all the evidence and submissions and make findings of fact and law. The appellant’s mental state was the subject of much contested evidence. The appellant’s suggestion is that the motion judge should have prejudged one of the central issues in the case based on only parts of the evidence and alleged “red flags” before the conclusion of the summary judgment motion. This deviates from the role of an adjudicator, and indeed would undermine the ability of any adjudicator to impartially review the entirety of the evidence and arguments to make the findings of fact and law required of her.

[71] Second, there was no undisputed evidence of the improved state of EKB’s mental health. The JFCS submits, and I agree, that the evidence cited by the appellant as proof of her mental state was dated and unreliable; the JFCS adduced substantial evidence to the contrary. In fact, the evidence before the motion judge as contained in the records of NYGH and Dr. McLean supported that a finding that EKB’s mental health was in a precarious state, confirming her ongoing “special party” status. The role of the motion judge was to decide the merits based on all the evidence before her.

[72] Third, there was no request by EKB or appointed counsel at the motion to reassess EKB’s special party status. The appellant refers to an on-the-record discussion where the lawyer stated she followed the instructions of her client. The motion judge did not accept that EKB could give instructions, and the lawyer resiled from this position.

[73] Fourth, a finding of special party status is intended to be for the entire duration of the litigation: Costantino v. Constantino, at para. 56. Strategic and procedural decisions in family and child protection cases must be made throughout the proceedings. This aligns with the primary objective set out in Rule 2 of the Family Law Rules, that the court is to deal with cases justly, including ensuring a fair procedure, saving time and expense, and dealing with cases proportionately. While applying principles of protecting the vulnerable drawn from the Substitute Decisions Act, 1992 the special party rules protect the integrity of the court process and fairness for all parties: 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, 116 O.R. (3d) 202, at paras. 19–20. Unless set aside, all parties and the court have a right to rely on the finding of special party status.

Issue 1(c): Did the PGT or the lawyer breach their obligations to EKB, or cause procedural unfairness, in failing to raise EKB’s lack of special party status with the court?

[74] The appellant chose not to bring a motion to discharge the PGT as personal representative before the summary judgment motion on the grounds that she was then capable. As a result, it is a collateral attack to question the procedural fairness of the summary judgment motion after the fact because the appellant was not a special party, and to allege that the PGT and the lawyer failed their obligations by not bringing the issue of her capacity to the Court’s attention.

[75] There is no factual foundation to this allegation, as the appellant has not established on a balance of probabilities that she was no longer a special party by the time of the summary judgment motion. In any event, the fresh evidence filed by the PGT and the lawyer on the appeal proves that at no time did the PGT or the lawyer believe that the appellant was capable, and that this belief was reasonable.

[76] The appellant alleges that the lawyer withheld information about the appellant's capacity from the summary judgment motion court. She suggests that had this information been brought to the court's attention, the court might have found the appellant had regained capacity and allowed her to represent herself, which would have allowed the appellant to present a more compelling case for the return of the children to her care. The lawyer's affidavit evidence establishes that during her involvement with the appellant she never believed the appellant had regained capacity, nor was the lawyer ever in possession of or aware of any evidence establishing that the appellant might no longer be a special party. From many specific examples of the appellant's declining mental state during the lawyer's involvement as explained in her affidavit, which I accept, it was reasonable for the lawyer to believe the appellant was always incapable and thus continued to be a special party, before and during the summary judgment motion.

[77] I similarly find, based on the fresh evidence adduced by the PGT, that it was reasonable for the PGT and his agents to believe the appellant was always incapable and continued to be a special party, before and during the summary judgment motion.

Conclusion on Issue #1: Special Party Status

[78] The attempt to argue that EKB had capacity at the time of the summary judgment motion is a collateral attack on the decision of December 2017, which was not, but could have been, appealed. EKB did not bring a motion to continue the summary judgment proceeding without a personal representative. EKB has waived her right by not raising the issue at an earlier stage and cannot now raise the issue for the first time on appeal.

[79] I find that the motion judge did not have a duty, of her own motion, to reassess EKB’s special party status at or during the summary judgment motion.

[80] I find that it was reasonable for both the lawyer and the PGT to believe the appellant was incapable, and continued to be a special party, before and during the summary judgment motion, and there was no obligation on them to raise the appellant’s special party status with the court.

Issue #2: Was the summary judgment motion procedurally unfair, or contrary to Charter values, because as a special party, EKB was denied the right to counsel?

[81] The appellant challenges the procedural fairness of the summary judgment motion because the appellant was adversely affected by her inability to give instructions and direct counsel after she was declared a special party. The appellant does not question the constitutional validity of the special party provisions of the Family Law Rules and does not argue that the Family Law Rules and the special party status section breach sections 7 or 15 of the Charter. Rather, counsel for the appellant states that the issues relate to interpreting the Family Law Rules in accordance with Charter values, including whether the appellant was deprived of the right to counsel by the special party provisions in a manner contravening fundamental justice and procedural fairness. She argues that as a result of her inability to retain and instruct counsel, she lacked meaningful participation in the direction of her case contrary to Charter values. Essentially, the appellant argues that there is a conflict between a litigant’s constitutional right to counsel in child protection matters protected by section 7 of the Charter, and the court’s power to declare a special party and appoint the PGT as personal representative. The responsibility of the court is to ensure a fair hearing in the circumstances, the appellant argues, and has failed to do so.

[82] The appellant relies on the Supreme Court of Canada’s decision in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, for the proposition that a removal of a child from parental custody in a child protection proceeding constitutes a serious interference with the psychological integrity of the parent contrary to section 7 of the Charter, and therefore the parent has a right to retain counsel. Here, however, the finding of special party status and the appointment of the PGT as her personal representative, deprived EKB of her right to retain and instruct counsel.

[83] New Brunswick v. G.(J.) dealt with whether the state had to fund legal counsel for indigent parents faced with the removal of their children in child protection proceedings. Charter section 7 reads: “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.” The Court in New Brunswick v. G.(J.) held that the removal of a child from parental custody in a child protection proceeding constitutes a serious interference with the psychological integrity of the parent protected as an element of “security of the person” under section 7 of the Charter. The Court then considered whether this interference breaches the principles of fundamental justice. While the state’s removal of custody of a child restricts the parent’s right to security of the person, this restriction may comply with the principles of fundamental justice if the hearing is a fair hearing. Lamer, C.J. C. held at para. 2, that:

When government action triggers a hearing in which the interests protected by s. 7 of the Canadian Charter of Rights and Freedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair. In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel.

[84] The Supreme Court did not hold that in all circumstances the parent has a right to retain a lawyer, or to have state-funded counsel provided. Rather, whether a hearing is in accordance with the principles of fundamental justice depends on whether the hearing is fair, including whether the children’s best interests may be properly evaluated. The Chief Justice held at para. 73 that:

For the hearing to be fair, the parent must have an opportunity to present his or her case effectively. Effective parental participation at the hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintain custody of the child. The best interests of the child are presumed to lie within the parental home. However, when the state makes an application for custody, it does so because there are grounds to believe that is not the case. A judge must then determine whether the parent should retain custody. In order to make this determination, the judge must be presented with evidence of the child’s home life and the quality of parenting it has been receiving and is expected to receive. The parent is in a unique position to provide this information to the court. If denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests. There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child’s best interests to remain in his or her care.

[85] In New Brunswick v. G.(J.), the Court held given the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the party, the party had a right to be represented by counsel (para. 75). New Brunswick v. G.(J.) does not establish that to have a fair hearing, a party must be able to retain and instruct counsel in all circumstances regardless of mental capacity. Rather, the issue is what the principles of fundamental justice require for a fair hearing. EKB must establish that as a special party, she was denied the opportunity to present her case fairly.

[86] There are two aspects to this issue. First, as a special party, EKB was incapable of retaining and instructing counsel. That decision was not appealed and still stands. There can be no remedy based on Charter values that would provide an incapable person with the ability to directly retain and instruct counsel in litigation as a principle of fundamental justice. The appointment of a representative is in fact intended to be a protection for the vulnerable in litigation, to ensure that their interests are protected.

[87] Second, EKB’s inability to retain and instruct counsel does not stem from the special party status finding and the appointment of the PGT; it stems from her incapacity. Once a person is found to be a special party, the person is not capable of instructing counsel. The onus then rests on the representative to protect the best interests of the special party and conduct their litigation for them.

[88] As a result, it is important to determine whether the statutory scheme was one in which EKB had an opportunity to present her case fairly, despite her incapacity. The appellant was found to be a special party under Rule 2(1) of the Family Law Rules, meaning that she was found to be or appear to be mentally incapable about an issue in the case, and as a result, required legal representation. The PGT was appointed as a representative for the appellant under Rule 4(3), which provides that if there is no appropriate person willing to act as a representative for a special party, the court may authorize the representation of the special party by the PGT. Under the Public Guardian and Trustee Act, R.S.O. 1990, c. P.51, s. 1(1), the Lieutenant Governor in Council may appoint a member of the bar of Ontario of at least ten years’ standing to be PGT. Here, the PGT appointed a lawyer to act on behalf of the appellant in the child protection proceeding. The lawyer appointed by the PGT adduced affidavit evidence on EKB’s behalf; requested an adjournment; and made strong arguments to advance EKB’s case that the children should not be permanently removed from her custody.

Conclusion on Issue #2: Right to retain and instruct counsel

[89] Given EKB’s mental incapacity, the state provided legal representation for EKB at the child protection hearing, and the representative hired state-funded counsel, the lawyer, to advocate for EKB to ensure that EKB could effectively present her case. The statutory scheme was fair. I find that the summary judgment motion hearing complied with the principles of fundamental justice; it was procedurally fair; and it did not contravene Charter values.

Issue #3: Has EKB established ineffective assistance of counsel?

[90] Although EKB did not explicitly raise ineffective assistance of counsel, the appellant alleges the hearing was unfair because her lawyer failed to properly represent her. In granting intervenor status to her lawyer, I found that EKB was essentially arguing ineffective assistance of counsel, to which the lawyer had the right to respond. The main allegations are that the lawyer:

(a) failed to provide sufficient legal advice.

(b) failed to provide the appellant with copies of the JFCS evidence before the appellant having to respond to that evidence, and failed to object to the volume of materials.

(c) kept the appellant out of the loop of what was going on in the appellant's case and failed to properly disclose her role.

(d) failed to develop evidence in support of EKB’s case.

[91] In her July 12, 2019 affidavit, the appellant states that in filing this appeal she did not intend to impugn the lawyer's conduct or ability as a lawyer or her handling of the appellant's case. Yet the appellant made many statements throughout her appeal materials directly impugning the lawyer's decisions in her handling of the summary judgment motion and asserting that had it not been for the lawyer's and the PGT's involvement, the appellant would have been better able to resist JFCS’ position.

[92] In issue 1(c), above, I dismissed the allegations, also raised as part of the ineffective assistance claim, that the lawyer withheld information about the appellant's capacity from the court, or that the lawyer knew or ought to have known that the appellant was no longer a special party and alerted the court to the same.

[93] I find that the other allegations are not borne out by the evidence. There are no grounds to find ineffective assistance of counsel, or procedural unfairness in the motion hearing created by the conduct of counsel.

The test for a claim of ineffective assistance of counsel

[94] The three-part test for ineffective assistance of counsel is set out in R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 203 O.A.C. 56 (C.A.), at paras. 119-120, which I have adapted for the civil rather than criminal context:

(1) When the claim is based on contested facts, can the appellant establish the material facts on the balance of probabilities?

(2) Can the appellant prove that the lawyer’s acts or omissions in the court below amounted to incompetence, measured against a reasonableness standard and having regard to the circumstances as they existed when the impugned acts or omissions occurred? The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.”

(3) Can the appellant prove that the lawyer’s ineffective representation, if established, 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 hearing, or the reliability of the result. The result is rendered unreliable where the appellant proves that had counsel performed in a competent fashion, there is a reasonable possibility that the judge’s decision could have been different.

[95] There are two categories of claims of ineffective assistance: Gligorevic v. McMaster, 2012 ONCA 115, 109 O.R. (3d) 321, at paras. 84–85. The first category involves allegations of “an actual or constructive denial of the assistance of counsel”; the allegations do not fall into this category. The second category involves specific decisions made or actions taken or omitted by counsel. In this second category, the incompetency allegation is that “the assistance given was so deficient that it was ineffective” and the effect of counsel's conduct on the fairness of the motion is measured “by reference to the impact of the error or errors on the reliability of the result”: This requires an appellant to prove that if counsel had performed in a competent fashion, there is a reasonable probability that the outcome could have been different. I deal with the main claims below and dealt with the allegations that the lawyer withheld knowledge of EKB’s capacity above. I find that EKB has not established ineffective assistance of counsel or that the lawyer’s conduct undermined the appearance of the fairness of the motion or the reliability of the result.

Issue 3(a): Did the lawyer fail to provide competent legal advice?

[96] The lawyer contests the appellant's allegation that she failed to provide competent legal advice to the appellant. In her affidavit, the lawyer carefully sets out the advice she gave the appellant, as well as that the appellant repeatedly declined to follow the lawyer’s advice. I find that the lawyer specifically advised the appellant that she must respond directly to the concerns raised by JFCS (her mental health and her alleged amphetamine addiction); that she must remain engaged with JFCS for the best chance of having continuing involvement in the children's lives; that she must stop violating court orders by posting “missing” notices around the community depicting the children; that she must participate fully in the summary judgment motion process to contest the position and evidence put forward by JFCS; and that she must present a realistic plan of care for the children involving third-party supports who could assist her in concrete ways.

[97] The appellant has failed to establish that the legal advice was so deficient that it was ineffective – indeed, she has failed to establish any deficiencies in the advice, much less that the reliability of the result is called into question as a result of ineffective legal advice.

Issue 3(b): Did the lawyer provide ineffective assistance in failing to provide the appellant with copies of the JFCS evidence, and failing to object to the volume of materials?

[98] The appellant alleges that the lawyer failed to provide her with copies of the affidavits and evidence filed by JFCS until after release of the summary judgment motion decision. I find, based on reliable contemporaneous documentary evidence, the JFCS fresh evidence, and the lawyer’s detailed fresh evidence affidavit, that the JFCS had provided EKB and her private lawyers with the vast bulk of the motion materials prior to the appointment of the PGT and the lawyer. I also find that after she was appointed, the lawyer provided the appellant with copies of JFCS’ materials filed in the summary judgment motion many times, both by providing the appellant with physical copies at meetings and by uploading the documents to an online drop-box. Providing the electronic copies is confirmed by an email to the appellant dated February 12, 2018 containing the drop-box link.

[99] In the appellant's Reply Affidavit, she slightly amends her allegation to state instead that while the lawyer attempted to provide all JFCS materials to the appellant, the appellant's recollection is that she “was not able to review them properly before the hearing” and that “much of what I read in the file after it was turned over to me at the end of retainer was new to me.” If the appellant chose not to review fully the JFCS affidavits and materials when the lawyer provided them to her, and instead only reviewed them after the hearing, this did not result from any act or omission of the lawyer.

[100] The appellant submits in her factum that the lawyer should have objected to the volume of the affidavits filed by JFCS in support of the summary judgment motion. Decisions about volume must be balanced with the court’s requirement for trial-worthy evidence. I find that the appellant possessed much of the material in JFCS’ affidavits before the lawyer's involvement. The lawyer’s decision not to engage in procedural wrangling with JFCS over the length of their affidavits was reasonable, as was her decision that it was in the appellant's best interests to focus her efforts on putting her best foot forward in her responding evidence.

Issue 3(c): Did the lawyer provide ineffective assistance in keeping the appellant out of the loop, and failing to properly disclose her role?

[101] The appellant alleges that the lawyer kept the appellant out of the loop in information and decision-making. The lawyer sought strategic and procedural instructions from the PGT and sought instructions on substantive custody and access issues from the appellant. The lawyer did not have to consult with the appellant, a special party, about strategy and procedure. Even so, I accept the lawyer’s evidence that the appellant was in frequent contact with the lawyer's office before and during the summary judgment motion. Besides this, the lawyer was also in regular contact with the appellant's mental health worker who assisted in communications. The lawyer had at least seven in-person meetings with the appellant from January to July 2018 (not including court appearances), many email exchanges, and frequent telephone contact.

[102] The lawyer contests the appellant's allegation that she did not fully or properly disclose her role to the appellant. I accept the lawyer’s evidence on this point. While the appellant states that she immediately told the lawyer she wished to represent herself when the lawyer was appointed in January 2018, in fact it was not until sometime in July 2018 that the appellant began saying to the lawyer that she was either fired or had quit. As a special party, the appellant could not discharge the lawyer; the lawyer was appointed by the PGT as representative. The lawyer's evidence is that she made the appellant aware of her retainer and the role of the PGT from her first meeting with the appellant at NYGH in January 2018, where the appellant was being held under the Mental Health Act. When the lawyer restated, in a July 4, 2018 email to the appellant, her role, the appellant only responded by continuing to assert that the children were being held in captivity by the “white collar criminals” at JFCS, and that JFCS's entire case was based on lies. If the appellant did not understand the lawyer's role, it was not because of any failing of the lawyer. In any event, I do not find that this is a basis for an ineffective assistance claim, as it does not go to the lawyer’s competence, nor is it causally connected to a miscarriage of justice or the reliability of the motion judge’s decision.

Issue 3(d): Did the lawyer provide ineffective assistance in failing to put forward EKB’s case competently?

[103] The appellant alleges that the lawyer failed to seek and obtain relevant evidence that would help the appellant's case, failed to put a full evidentiary record before the court, and failed to consult with the appellant to get her input on the evidence to present to the court. I find that the appellant fails the first branch of the Archer test, in that she has failed to adduce evidence to support material facts underlying this claim.

[104] Nowhere in the appellant's fresh evidence does she give any concrete examples of the evidence she would have put before the court but for the lawyer's or the PGT's involvement, even though the appeal took place ten months after the release of the decision. Although in her March 2019 affidavit she states that she could have provided letters of support, she does not attach any such letters in her fresh evidence. Although she asserts that she could have put forward evidence that counsellors at Hinks-Dellcrest supported or continued to support her parenting, she did not attach any affidavits from Hinks-Dellcrest workers in her fresh evidence. While stating that a police officer was willing to provide a supportive affidavit, she did not provide such an affidavit in her fresh evidence. Although she argues that she was prevented from filing an updated plan of care for the children, she did not provide an updated plan of care in her fresh evidence. The facts surrounding the appellant's parenting, as they existed at the time of the summary judgment motion, have not changed based on the fresh evidence filed on this appeal.

[105] The appellant alleges that her lawyer wrongfully withheld from the court a letter from the appellant's Consent and Capacity Board lawyer, Thomas McIver, who acted for her in January and February 2018. The letter sets out Mr. McIver’s opinion that she was capable of instructing counsel for the CCB hearing. Mr. McIver's letter was of little to no evidentiary value. Mr. McIver's opinion conflicted with the balance of the contemporaneous medical evidence about the appellant's lack of capacity, and the finding of the CCB hearing in January 2018 that the appellant was incapable of consenting to treatment. Dr. Marie-Claude Guimond, one of the appellant's treating physicians during her month-long psychiatric admission to NYGH in January-February 2018, writes in a contemporaneous note that while the appellant could understand the information that was given to her, she could not appreciate the foreseeable consequences of her decisions, and that the appellant did not believe she was experiencing psychosis or that anti-psychotic medication could help her. The note also confirms that the appellant intended to keep using amphetamines despite the very high likelihood that they harmed her. Further notes in the NYGH records show that the appellant believed, in January 2018, that there was a JFCS conspiracy against her, that her children were dead or may be dead, and that the children were being sexually abused by their foster family. It is clear from the NYGH records that numerous physicians shared the professional opinion that the appellant was suffering from psychosis in January-February 2018 and that she was not mentally capable.

[106] In the context of all of the evidence before the motion judge, and the very different standard applied to special party status in litigation and mental capacity for consent to treatment under the Substitute Decisions Act, 1992, I find that it was reasonable for counsel to make this decision. Even if admitted, the letter would not have made a difference.

[107] The lawyer’s affidavit sets out extensive efforts she made to obtain the appellant's input on the evidence to present to the summary judgment motion court. The “gaps” in the evidence, I find, were as a result of the appellant’s failure to respond to the lawyer’s requests, not because of any failure on the part of the lawyer. As explained in the lawyer’s affidavit, the appellant's responses to the position and evidence put forth by JFCS centred on her belief that there was a JFCS conspiracy against her and that her father and brothers were behind that conspiracy. These beliefs did not help the lawyer in putting together relevant and material evidence on the motion.

[108] The lawyer tried to reach out to every person the appellant mentioned who might have been a support to her. Unfortunately, the appellant was firm in her belief that the children might come to harm at the hands of her family members who were conspiring against her, and so it was impossible for the lawyer to put together a kinship plan of care. The other third parties the appellant told the lawyer about were not prepared to assist the appellant in her parenting of the children in any concrete and committed way.

[109] The appellant asserts in her March 2019 affidavit that records from the Hinks-Dellcrest Centre would have supported her claims, and that these records were not obtained and were thus not before the court. In fact, the Hinks-Dellcrest Centre records form part of Dr. Wittenberg's report, which was before the motion judge. The records formed a part of the original JFCS summary judgment motion record served on the appellant through her privately retained counsel by December 2017. The lawyer made submissions at the hearing of the summary judgment motion about the appellant's and children's involvement with the Hinks-Dellcrest Centre, and that in 2016 a counsellor believed that the appellant could safely parent the children. The appellant did not adduce any fresh evidence about the Hinks-Dellcrest Centre on this appeal, other than records already before the summary judgment motion judge.

[110] The appellant asserts in her March 2019 affidavit that she asked the lawyer to obtain and present to the court evidence about a plan of care involving her brother, AJB, who resides in Gibraltar, but that the lawyer told her it could not be done because it was too late. I accept the lawyer’s affidavit evidence that the first time the appellant raised an alternate plan of care involving a move to Gibraltar was on the second and last day of the summary judgment motion. I accept the lawyer’s evidence that until the last day of the hearing the appellant opposed any of her family in Gibraltar being involved with the children at all, because of EKB’s belief that they had instigated a conspiracy against her and that they would hurt the children. The children were apprehended by child protection services in Gibraltar in 2014–2015. I accept the lawyer’s evidence that the appellant believed that her father had set her up when she visited Gibraltar in 2014–2015 and this was why Gibraltar child protection services apprehended the children. I accept that the appellant rejected her brother AJB. having any involvement with the children at all for similar reasons, and that EKB only provided the lawyer with a copy of a letter from AJB, which itself made no concrete commitments on how he would assist the appellant, at 9:18 a.m. of the final summary judgment motion hearing date. The transcript from that date reflects that the lawyer requested an adjournment so that the appellant could present this alternate plan of care and additional supporting evidence, and the motion judge denied the adjournment. Indeed, in her fresh evidence on this motion, the appellant did not set out a plan of care involving her brother in Gibraltar, and she was afforded the opportunity to do so. Given all the evidence at the hearing, I find that it would not have made a difference.

[111] The lawyer vigorously advocated for the appellant's position in her submissions on the summary judgment motion, as the transcript from that date makes clear. Her comprehensive submissions are recorded from page 62 to page 116 of the transcript. She reviews in detail the test to grant summary judgment and submits that JFCS had not met it.

[112] In her fresh evidence filed on the appeal, the appellant has not included the kind of evidence she now criticizes the lawyer for failing to provide. From this I infer that the evidence does not exist, as the appellant had ample opportunity to file fresh evidence on this appeal

Conclusion on Issue #3: No ineffective assistance of counsel

[113] The lawyer's strategic and procedural decisions in conducting the summary judgment motion were objectively reasonable. EKB has not established that there is a reasonable possibility the result arrived at by the motion judge would have been any different had the lawyer performed in a different fashion.

[114] The appellant has filed fresh evidence on this appeal. Nowhere in that fresh evidence does she provide concrete examples of what she would have presented in the court below that would have filled in the “large gaps” she alleges were left by the lawyer, much less evidence to cast doubt on the reliability of the motion judge’s decision. In her fresh evidence the appellant did not meaningfully respond to the issues surrounding her mental health and amphetamine use, nor did she show any willingness to work cooperatively with JFCS to regain some right of access to the children. Based on the appellant's fresh evidence filed in support of her appeal, it remains unclear what she would have done had she been directing her own case that would have made any difference in the result.

[115] The decision that the children should be placed in extended society care did not result from the lawyer’s actions. Rather, it resulted from the appellant's own behaviour, her reluctance to engage with JFCS, reluctance to put forward a realistic plan of care involving the appellant's family members, and general reluctance to participate in a process which the appellant declared on the record at the motion was based on “lies.”

[116] The appellant has not established the material facts upon which she relies on a balance of probabilities. She has not established a causal connection between the lawyer’s conduct and either the outcome of the summary judgment motion or the appearance of fairness of the proceedings. The appellant has not established that the lawyer’s conduct amounted to incompetence, nor that any actions of the lawyer were causally connected to a miscarriage of justice.

[117] I do not find that there was ineffective assistance of counsel, and I do not find that any action or inaction by the lawyer in the presentation of the case created any unfairness in the motion process.

Issue #4: Was the summary judgment motion unfair because of the PGT’s conduct?

[118] The appellant raises several issues about the conduct of the PGT, including alleging that the PGT did not meet his duties and thus rendered the process unfair. The allegations include that:

(a) the lawyer was taking her instructions from the PGT and not from the appellant.

(b) The appellant did not receive “any adequate explanation of how she had lost her right to counsel or what she could do about it, if anything.”

(c) The appellant had no one with whom to discuss strategy and she was not involved in decision-making in her case.

(d) The PGT failed to present EKB's parenting plan to return with the children to Gibraltar to the Court.

The Role of the PGT as Representative

[119] The appellant raises several allegations that challenge the role of the PGT as her representative. The PGT is a public office within the Ministry of the Attorney General that protects the rights of incapable parties in litigation. Rule 2(1) of the Family Law Rules requires that a special party be represented. If there is no appropriate person willing to act as a special party’s representative, the court may authorize the Children’s Lawyer or the PGT to act as representative, but only with that official’s consent. The PGT is the representative of last resort if there is no other person appropriate and willing to act.

[120] The Family Law Rules do not elaborate on the decision-making authority of a representative for a special party. Rule 4(3) authorizes the appointment of a representative for an incapable party but does not specify how the representative is to conduct litigation on behalf of the special party. By contrast, Rule 7.05 of the Rules of Civil Procedure explicitly provides that a litigation guardian has substitute decision-making powers and is authorized to do anything that a party in a proceeding can do. Rule 7.05 also requires that a litigation guardian retain counsel and instruct the lawyer in the conduct of the proceeding.

[121] The PGT in family proceedings does not make substitute decisions for the special party on issues of custody and access. This adheres to the general restriction under the Substitute Decisions Act, 1992, section 59(4)(b), which provides that unless an order expressly provides otherwise, when acting as guardian of the person, the guardian lacks the power to change existing arrangements about custody of or access to a child, or to give consent on the person’s behalf to adopting a child. That statutory limit reflects a legislative intent that the autonomy to make one’s own decisions with respect to one’s children is not to be lightly restricted.

[122] The PGT as representative for a special party determines the wishes of a special party on custody and access and puts that position before the court in a manner consistent with the primary objectives of the Family Law Rules, to enable the court to deal with cases justly. As part of this, the PGT helps the special party make or respond to plans of care where possible and seeks to protect the best interests of the special party, including making procedural and strategic litigation decisions.

Issue 4(a): The issue of instructing counsel

[123] Once a party is declared a special party, they are incapable of instructing counsel, and therefore the onus rests on the representative to protect the best interests of the special party and conduct their litigation for them. As part of his obligation to represent the interests of the special party, as representative, the PGT may appoint counsel to represent the special party, as he did here.

[124] As for the allegation of “taking instructions from someone else”, as representative, the PGT (or his counsel) takes direction on the issues of custody and access from the special party. The PGT must, however, make procedural decisions about the case, including how best to advance the special party's wishes and present them to the Court. When the PGT retains counsel in child protection proceedings, the PGT gives instructions to counsel on the strategy to pursue to attain the special party's wishes. EKB was informed of the role of the PGT by letter dated January 9, 2018 and email dated January 10, 2018.

[125] The PGT is not a free legal service. The PGT, his employees and his agents may charge fees for anything done, services rendered, and expenses incurred under the Public Guardian and Trustee Act or under any other Act. As explained in the January 9, 2018 letter sent to EKB, when the PGT acts as legal representative in child protection proceedings, the PGT will retain counsel if the special party qualifies for a Legal Aid Ontario certificate. Since EKB qualified for a Legal Aid Ontario certificate, the PGT stepped into the shoes of EKB, applied for a Legal Aid certificate on her behalf, and retained the lawyer on this basis. There is nothing improper or unfair in this: it is part of a statutory scheme designed to protect the interests of the appellant as a special party, to provide legal representation in a child protection proceeding.

Issue 4(b): Explanation of the role of the PGT

[126] In her factum the appellant states that she did not receive any “adequate explanation of how she had lost her right to counsel or what she could do about it, if anything”. The PGT in his fresh evidence sets out many phone and email communications with EKB about the role of the PGT and her litigation. Shortly after being appointed, the PGT sent a letter and email to EKB informing her of the PGT's appointment, explaining that she had been found incapable of making decisions in her case, and requesting a meeting with her to discuss her wishes with respect to custody of her children. The letter also set out the process through which the PGT would act as her legal representative and that the PGT would retain counsel should EKB be granted a Legal Aid certificate. Finally, the letter explained that the PGT's role was to put EKB's views and preferences before the Court and to make strategy decisions about the case.

[127] The appellant also argued that in relying on a solicitor-client relationship between the PGT and the lawyer, either the lawyer or the PGT breached their duties of candour and confidentiality to her. I do not accept this. Rather, the PGT as representative appointed counsel; while the Legal Aid retainer was in the name of EKB (the PGT applied on her behalf) this does not imply that EKB was competent to instruct counsel, but rather, that the PGT as representative stepped into the shoes of EKB to obtain public funding for a lawyer to argue the case for EKB. The retainer with counsel made it clear that while counsel would receive instructions from EKB on issues of custody and access (in the sense of directions or wishes), the solicitor-client relationship was between the lawyer and the PGT. Calling someone a “client” or using the term “instructions” does not render a person capable of instructing counsel. The court’s finding of special status and appointment of the PGT as representative is binding until set aside. Loose wording in a retainer does not raise a “red flag” when a court order is binding.

Issue 4(c): Strategy, decision-making and communications with the PGT

[128] In her fresh evidence affidavit, EKB states that she had no one with whom to discuss strategies for ensuring the return of her children to her care. She alleges that she was, therefore, left to take her own steps that ultimately reflected negatively on her. She alleges also that she was not involved in decision-making in her case, provided no input, and was not provided with the information she believed she should have received. The PGT’s evidence, and the lawyer’s evidence, is to the contrary. Besides the lawyer, other agents of the PGT communicated with EKB to attempt to discuss her wishes with respect to custody, access and a parenting plan. I find that agents of the PGT:

(a) spent hours communicating with EKB and receiving her input;

(b) discouraged EKB from taking steps that would reflect negatively on her;

(c) tried to gather information with respect to EKB's circumstances and wishes about her children;

(d) discussed a plan with EKB to find family members who could take her children that they could present to the Court in a care plan;

(e) advised her that she could not speak to the press about her allegations of JFCS misconduct because of a statutory publication ban applicable to child protection proceedings;

(f) advised EKB that, despite her belief to the contrary, her children were not dead and saying that to JFCS or the Court would reflect negatively on her;

(g) advised EKB to take down her Facebook posts about the children;

(h) advised her that JFCS may use things she says to them against her; and

(i) confirmed EKB’s position was that she wanted her children returned and that she would make an access claim in the alternative.

[129] After the summary judgment motion EKB left a voicemail with the PGT stating that the lawyer did a superb job, put together a really good argument, and she appreciated everything they had done.

Issue 4(d): Gibraltar Plan of Care

[130] In her fresh evidence affidavit, EKB alleges that the PGT or the lawyer decided not to present her plan to return with the children to Gibraltar to the court. I find on the evidence that the only instance of EKB mentioning Gibraltar to the PGT was on January 15, 2018. In this phone call, EKB mentioned that she has family in Gibraltar. She did not mention a plan to return to Gibraltar with the children on that, or any other date.

Conclusion: Issue #4

[131] I find that the PGT provided EKB with the opportunity to provide input and participate in her case to the best of her abilities. The PGT, through the appointment of the lawyer, fulfilled his duty to present EKB’s views and wishes to the court, and appropriately made procedural decisions in the conduct of the case. Nothing in the allegations made by the appellant about the conduct of the PGT rendered the procedure unfair.

Issue #5: Did the motion judge err in fact or in law?

[132] The appellant raises many alleged errors by the motion judge:

(a) Did the motion judge err by proceeding with the summary judgment motion hearing based on the JFCS condensed Amended Record, and not giving an adequate opportunity to respond?

(b) Were the motion judge's reasons insufficient in that they fail to make credibility findings with respect to issues that turn on credibility, and fail to assess or acknowledge contradictory evidence?

(c) Were the motion judge's reasons insufficient as they list evidence that is harmful to the appellant's case, but fail to weigh or evaluate that evidence, or to balance it against evidence that is favourable to the appellant's case?

(d) Did the motion judge err in her analysis and application of the test for the mother’s access, and forms of access?

(e) Did the motion judge err in failing to consider the negative impact of a no access order?

(f) Did the motion judge err by not considering making the children access holders with respect to their mother?

(g) Did the motion judge err in her analysis of the impairment of adoption prospects?

Standard of Review

[133] Different standards of review apply on this appeal depending on the nature of the alleged error in issue. On questions of pure law, the standard of review is correctness. On findings of fact, the standard of appellate review is that of palpable and overriding error. For a question of mixed law and fact that involves the motion judge’s interpretation of the evidence, the standard is a serious misapprehension of the evidence or palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[134] The Court of Appeal has identified special considerations for summary judgment motions in child protection proceedings as follows in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 487, at para. 80:

To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

2. The burden of proof is on the party moving for summary judgment. Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.

3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial….

[135] The Court of Appeal has held that on child protection appeals “the court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings”: Children's Aid Society of Toronto v. V.L., 2012 ONCA 890, 299 O.A.C. 388, at para. 15, leave to appeal refused, [2013] S.C.C.A. No. 1112.

Issue 5(a): Did the motion judge err by proceeding with the hearing based on the JFCS condensed Amended Record, and not giving an adequate opportunity to respond?

[136] The appellant alleges that the motion judge erred by proceeding with the motion even after ordering the JFCS to amend and condense its materials. In her factum under the heading “Dump truck litigation,” the appellant argues that the JFCS materials were large; the affidavits did not comply with the rules of evidence; the affidavits contained inadmissible hearsay without identifying the source of information; and the affidavits provided opinions.

[137] In support of her argument, the appellant refers to the Affidavit of Donna Loi dated March 7, 2018. The March 7, 2018 Affidavit of Donna Loi was struck from the record by order of motion judge on March 20, 2018 and was not considered by the motion judge. The March 7, 2018 Affidavit was replaced with the Amended Affidavit of Donna Loi, dated April 23, 2018, which had been condensed in size.

[138] The appellant makes vague reference to what she says are numerous examples of quadruple and quintuple hearsay, and statements made without identifying the source of the information or fact of belief, but specifically refers to three pages of an 800-page summary judgment motion record, specifically citing one example of quintuple hearsay and a medical opinion.

[139] No objection was taken at the hearing to the admissibility of this evidence. Objections to allegedly improperly admitted evidence contained in affidavits filed on a summary judgment motion cannot be raised for the first time on appeal. In any event, the specific evidence complained of did not unfairly prejudice the appellant, was inconsequential in the context of the evidence as a whole and caused no substantial wrong or miscarriage of justice.

[140] The JFCS introduced into evidence all hospital, medical and police records. Given the lack of consent to the admission of business and medical records as exceptions to the hearsay rule, the JFCS provided affidavits from all treatment and service providers, including the hospital psychiatrists at Sunnybrook and NYGH who attested to the authenticity of the records of EKB's hospitalizations at Sunnybrook in December 2015 and NYGH in August/September 2016 and January/February 2018. Affidavits were also provided from Dr. Jean Wittenberg, Parenting Capacity assessor, and from two child assessors at Hincks-Dellcrest.

[141] In providing affidavits from the source record-holders, the JFCS was complying with the requirement to ensure that the evidentiary record on a summary judgment motion is trial-worthy. The reason for the trial-worthy standard of evidence has been explained by Justice Sherr in Children's Aid Society of Toronto v. B.B., 2012 ONCJ 646, [2013] W.D.F.L. 2021, at para. 25:

[25] My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination.

[142] A trial-worthy standard here means that many affidavits attaching the relevant records were admitted into evidence; there is no error in the judge’s evidentiary rulings, to which deference is owed.

[143] The appellant also asserts that she only had three weeks to respond to the Amended motion record, which was insufficient to allow her to prepare. I do not accept this assertion in the context of the history of this litigation.

(a) During the litigation, EKB was privately represented by three non-PGT lawyers.

(b) All the records were already provided to EKB through her private counsel, including records provided in July 2016, January 2017, and September 2017. The JFCS motion record was served before December 2017 while EKB was still represented by Richard Brown, her non-PGT counsel at that time.

(c) On March 20, 2018 the motion judge ordered the JFCS to condense worker affidavits, which it did. The materials were identical with those served before December 2017, except that the JFCS workers’ affidavits were struck out and condensed.

(d) None of EKB's privately retained lawyers, or the lawyer appointed by the PGT, objected to the quality or admissibility of the evidence provided.

[144] In failing to object at the hearing, EKB has waived her right to object on admissibility or other issues relating to the record for the first time on appeal: Catholic Children's Aid Society v. NB, 2013 ONSC 1813, 282 C.R.R. (2d) 68, at para. 26, aff’d, 2013 ONCA 472, [2013] W.D.F.L. 3939.

[145] The motion judge, who had reviewed both versions of the JFCS motion record found that the Amended condensed version was appropriate and proportional. This is a factual determination to which deference is owed.

Issue 5(b): Were the motion judge's reasons insufficient on credibility findings and contradictory evidence?

[146] In her notice of appeal, the appellant alleges that the motion judge's reasons were insufficient on the analysis of credibility and fail to assess contradictory evidence. Insufficiency of reasons is an error of law that, if established upon appeal, would lead to an order for a new trial.

[147] I find that the motion judge’s reasons were comprehensive, and the purposes for providing reasons were met. As set out by the Supreme Court of Canada in R. v. REM, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 41, reasons have three fundamental purposes:

(a) Reasons should tell the parties affected by the decision (especially the losing party) why the decision was made. Reasons also show that the judge has heard and considered the evidence and arguments before them and has not considered extraneous considerations.

(b) Reasons should provide public accountability by showing that justice is not only done but is seen to be done.

(c) Reasons must permit effective appellate review. This requires the judge to give a clear articulation of the factual findings and legal principles that underlay the decision.

[148] In her ruling on the summary judgment motion, the motion judge set out the legal principles engaged in the child protection summary judgment motion, made findings of fact on all material issues amply supported by the evidence, and provided reasons that permit effective appellate review.

[149] As for the credibility analysis that the appellant alleges was missing from the reasons, the motion judge turned her mind to considering credibility. At paragraph 12, the motion judge refers to Rule 16(6.1) of the Family Law Rules, which states that the court may exercise the power to evaluate the “credibility of a deponent”. At paragraph 104, the motion judge held that: “The court is able to make this finding on the uncontested evidence and without resorting to the expanded powers afforded to it by Rule 16(6.1). The court does not have to use its fact-finding powers to determine that there is no genuine issue for trial.” The motion judge could and did make her findings of fact based on undisputed evidence, or evidence subject only to bare denials.

[150] As for the allegation that the judge did not consider contradictory evidence, the motion judge held at para. 103 that: “The court is not relying on contested evidence at this stage to reach this conclusion. The mother's evidence, at best, amounts to explanations for her conduct and choices; the very conduct and choices that JFCS argues is the basis for the order they are seeking on this motion.” The motion judge did not ignore the contradictory evidence but found facts sufficient to dispose of the application based on uncontested evidence. She was entitled to do so.

Issue 5(c): Were the motion judge’s reasons insufficient in failing to list and evaluate evidence favourable to the appellant?

[151] The appellant alleges that the motion judge's reasons were insufficient as they fail to list and evaluate evidence favourable to the appellant. The motion judge did, in fact, consider the evidence favourable to the mother. At paragraph 27, the judge refers to the evidence that, in February 2016, the children were returned to their mother's care under a supervision order “after she demonstrated positive access visits, compliance with medication and a willingness to cooperate with the JFCS.” At paragraph 82, the judge confirms that “it is not contested that the mother and children love each other and were affectionate with one another during visits and that the children were happy to see their mother. When the mother was well, the visits had some positive aspects to them.”

[152] There is no requirement that a motion judge list all evidence. The motion judge weighed the evidence, as she was entitled to do, in reaching her decision.

Issue 5(d): Did the motion judge err in her analysis of the test for access and forms of access?

[153] In her notice of appeal, the appellant alleges that the motion judge erred in placing an increased onus on EKB as a party seeking access, and then inappropriately weighed the various factors in determining whether access should be granted.

[154] The motion judge properly held that the CYFSA provides that existing access orders are terminated when a child is placed in extended society care unless the party seeking access establishes that ongoing contact is in the child’s best interests. This complies with the statutory requirements set out in CYFSA subsections 105(5) and (6), which provide:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

[155] The motion judge did not err in the legal test she applied. She set out a detailed best interests analysis in accordance with the statutory scheme, based on the facts she found. She found that the children loved their mother, expressed a desire to return to her care, enjoyed their visits with her, and continued to ask to see their mother. The motion judge found that the relationship was meaningful to the children and supported access. The motion judge also identified some benefits of access, including having their wishes met, a connection to their cultural heritage, and direct access to medical information. Even so, the motion judge determined that the relationship was not beneficial to the children “because of the significant degree of risk of harm to them that comes with that relationship,” and her finding that “each and every contact with their mother creates a risk of emotional harm to the children.”

[156] In reaching this conclusion, the motion judge’s decision was supported by evidence including that:

• the mother had been unable to adequately address her mental health issues and the children could not return to their mother’s care since 2016 because of choices the mother made about treatment of her health issues;

• access had been sporadic, during which the children witnessed conflict with the JFCS; the mother tried to undermine the foster placement of the children by coaching the girls to complain; and access had been suspended for almost a year;

• the mother’s behaviour led to two restraining orders, and police involvement as a result of violation of the restraining order;

• the children had to be removed from their foster family and their school as a result of the mother’s actions; and

• the mother made inappropriate posts on social media and put up flyers in the neighbourhood disclosing that the children were in the care of the JFCS, breaching a statutory publication ban designed for their protection.

[157] The motion judge specifically considered the effect of the transition from the CFSA to the CYFSA. Under the CFSA, once access was terminated, the burden was upon the person seeking access to rebut the presumption against access. The motion judge explicitly considered this in explaining that while the predecessor legislation had been rigid in requiring that parents demonstrate a meaningful and beneficial relationship, the CYFSA takes a more flexible approach in subsuming the meaningful and beneficial factor within the greater context of the best interests analysis. In this way, the new access test recognizes that a case-by-case weighing of all relevant factors against the needs of the child is more appropriate than confining the court to the one-dimensional definition of “meaningful and beneficial” for determining whether access can occur.

[158] The motion judge’s approach accords with the approach set out by the Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., at para. 49, decided after the motion judge’s decision:

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive.

[159] The motion judge held on the evidence before her that while the children appeared to enjoy some benefits and derived some meaning from the access to their mother, this was overwhelmingly outweighed by the risk of harm that arose from the relationship, because of the mother's inadequately addressed mental health issues and inappropriate conduct. The motion judge appropriately determined and weighed this factor in a contextual best interests analysis, applying the correct legal approach, supported by evidence, and made a discretionary decision to which deference is owed.

[160] The appellant also alleges that the motion judge erred in equating access to face-to-face contact, and in not turning her mind to other forms of supervised or vetted access, including indirect access through cards and letters under the supervision of the society. But given her analysis that “each and every contact with their mother creates a risk of emotional harm to the children”, the motion judge implicitly considered the children's well-being should any form of access be granted. Deference is owed to this conclusion.

Issue 5(e): Did the motion judge err in failing to consider the negative impact of a no access order?

[161] The appellant submits that the motion judge erred in failing to consider the negative impact of a no access order, “given that the evidence that the children were already worried about the mother’s well-being.” The appellant did not point to any other evidence.

[162] The motion judge considered the children's feelings for their mother, their enjoyment of the access visits with her, their requests to see her, and their desire, at that time, to return to her care. Even so, in weighing the benefits of ongoing access against the negative effects of maintaining the relationship, the motion judge found that the relationship could not ultimately be considered beneficial to the children because of the significant degree of risk of harm to them that comes with the relationship. The motion judge turned her mind to the importance of maintaining this relationship and concluded that the benefit was seriously outweighed by the risk of harm posed by ongoing access to the children's overall well-being. This is a determination involving the weighing of evidence and is a discretionary decision open to the motion judge on the evidence to which deference should be afforded.

Issue 5(f): Did the motion judge err in failing to make the children access holders with respect to their mother?

[163] The appellant submits that the motion judge erred in failing to make the children access holders with respect to their mother. The appellant cited no evidence or caselaw on this issue. The OCL originally supported this position, although agreeing with the JFCS on most other issues. At the hearing of the appeal, however, the OCL withdrew its support of access for the children as rights holders with respect to their mother.

[164] The motion judge determined that an ongoing access relationship with their mother was not beneficial for the children, finding as a fact that contact with their mother “creates a risk of emotional harm to the children.”

[165] After making the factual determination that mother's further access with the children would place the children at risk of emotional harm, the motion judge did not have to separately analyse in her judgment whether these young children should be made access order holders. Based on the compelling evidence that the motion judge accepted about EKB's erratic and disruptive conduct, it was implicit that the judge did not view it in their best interests to create emotional distress for these young children by making them access order holders and subjecting them to a loyalty bind that would have been impossible for them to negotiate.

[166] As this ground of appeal questions the motion judge's findings of fact and a discretionary decision made on that basis, deference is owed to the motion judge's analysis of the evidentiary record before her and the discretionary decisions made on that record.

Issue 5(g): Did the motion judge err in conducting a flawed analysis of impairment to the children's adoption prospects?

[167] The appellant also argues that the motion judge erred in law by considering the effect of access on adoption in the abstract, with no evidence that an access order would alter the resolve of the prospective adoptive parents who were known to the Court.

[168] The motion judge considered whether an order for access by the mother would impair future opportunities for adoption, considering it to be a highly relevant factor. The motion judge found “overwhelming evidence” that the mother possesses many attributes recognized as likely to create an impairment for adoption. While the appellant’s notice of appeal alleges that the motion judge erred in considering the mother's propensity to engage in openness litigation, this was an appropriate legal factor, and was one of many relevant factors appropriately considered by the judge, such as the mother’s lack of impulse control, lack of support for the alternate caregivers, and her dishonesty. The motion judge explicitly identified the relevance of this adoption impairment factor, because of the children's ages and the likelihood that they could be adopted into a permanent home, so that consideration should be given to any manner in which an access order would hinder their future adoption opportunities: Children's Aid Society of Toronto v. A.F., 2015 ONCJ 678, [2016] W.D.F.L. 347, at paras. 165-169.

[169] Under CYFSA subsection 105(6), it was within the motion judge's authority to consider the effect on the children's future opportunities for adoption, if the judge considered this a relevant factor, regardless of the presence or absence of evidence about concrete adoption prospects. It was not a legal error to do so, and deference is to be accorded to the motion judge’s discretionary decision and the motion judge's findings on the evidentiary record before her.

Conclusion on Issue #5: No errors in the motion judge’s decision

[170] The motion judge made no errors of law, made findings open to her on the evidence, and made discretionary decisions upon a proper basis. Having reviewed all the issues raised, I find that the appellant has established no palpable and overriding error of fact, or error of mixed fact and law, on any issue. The motion judge properly concluded that the matter could be decided on a summary judgment motion. Given the evidence before her, I find that the motion judge’s conclusion that there was no genuine issue requiring a trial was well founded. On the evidence and considering the cautionary approach that must be taken in child protection summary judgment motions, there was no chance of success or realistic outcome other than that sought by the applicant: Kawartha-Haliburton Children’s Aid Society v. M.W., at para. 71.

Issue #6: Other issues

[171] The appellant raises several other issues, none of which cast doubt on the reliability of the motion judge’s decision, nor the fairness of the process. The appellant raises a breach of the Human Rights Code, RSO 1990, c. H.19, and of equality rights protected under section 15 of the Charter of Rights and Freedoms. She alleges that there was no accommodation for the appellant’s needs as a litigant in the courtroom, or as the special party for whom the PGT acted as representative. None of these issues were raised at or before the summary judgment motion. The appellant did not establish that she has needs that require accommodation, nor the precise nature of the accommodations sought other than referring to additional time to review and prepare materials. Most importantly, hearing-related accommodation issues cannot be raised for the first time on appeal.

[172] The appellant made arguments about confidentiality, information-sharing, breach of fiduciary duties and what she regards as an improper assertion of solicitor-client privilege between the PGT and the lawyer appointed by the PGT. These issues are not properly raised for the first time on this child protection appeal; they are issues between EKB and the PGT or the lawyer.

ORDER

[173] The appeal is dismissed.

[174] Any party seeking costs is to serve and file the costs submissions, no longer than three pages, together with a Bill of Costs and Offers to Settle, if any, by November 8, 2019. Responding submissions, subject to the same limits, are to be served and filed by November 22, 2019.

Justice Freya Kristjanson

Released: October 28, 2019

COURT FILE NO.: FS-18-06661

DATE: 20191028

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

jewish family and child service of greater toronto Applicant/Respondent on Appeal

– and –

E.K.B. Respondent/Appellant on Appeal

– and –

S.J.B Respondent on Appeal

– and –

R.G. Respondent on Appeal

REASONS FOR JUDGMENT

KRISTJANSON J.

Released: October 28, 2019