Court File and Parties

COURT FILE NO.: FS-18-00006737 DATE: 20200302

WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87 …

Order excluding media representatives or prohibiting publication (7) Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

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

Prohibition re identifying child (8) 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.

Prohibition re identifying person charged (9) 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 …

Offences re publication (3) 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.

COURT FILE NO.: FS-18-00006737 DATE: 20200302

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Toronto Applicant (Respondent in Appeal) – and – J.H. Respondent/Appellant

COUNSEL:

Jodi Kaiman, for the Applicant/Respondent in Appeal David Miller, for the Respondent/Appellant in Appeal – and – H.C. – and – Not participating in the appeal Curve Lake First Nation Scott Byers, for the Respondent

HEARD: February 3, 2020

Shore, J.

[1] This is an appeal by the Respondent, J.H. of the final orders of Justice Katarynych of the Ontario Court of Justice, dated October 23, 2018 and November 6, 2018, following a 13-day child protection trial on the grounds that there was a reasonable apprehension bias.

Brief Overview

[2] J.H. (the Appellant) and H.C. (the Respondent) are the parents of N. (age 6) and E. (age 5). The children are First Nations Children of the Curve Lake First Nation. Children’s Aid Society of Toronto, H.C., and Curve Lake First Nations are Respondents in the appeal. H.C. did not participate in the appeal.

[3] Following a 13-day trial, on October 23, 2018, the trial judge ordered that the children be placed in extended society care, with specified access between the children and the Respondent mother. The issue of the Appellant’s access to the children was reserved.

[4] On November 6, 2018, the judge released her decision and ordered that there be no access between the children and the Appellant. On November 22, 2018, the judge released her expanded reasons for her two earlier decisions.

[5] The Appellant has appealed these two orders of the trial judge on the grounds that there was a reasonable apprehension of bias, depriving J.H. of a fair hearing. Specifically, the Appellant is claiming that the trial judge rejected the father’s plan for the children to be returned to his care before the closing of trial and final submissions.

[6] For the reasons set out below, I dismiss the appeal.

[7] After working with the family since 2013, the Society launched a protection application in August 2016. On August 29, 2016, an order was made on consent of all parties, placing the children in J.H.’s care under a supervision order.

[8] On January 18, 2017, a condition was added, in that J.H. had to co-operate with support provided by his mother.

[9] On February 23, 2017, an order was made placing the children in the temporary care of the Society.

[10] On July 31, 2017, on consent of the parties, a final order was made finding the children in need of protection. The children were made society wards for three months, with access to the parents. The order was extended on consent in November 2017.

[11] On February 9, 2018, the Society issued a Status Review Application, seeking to make both children wards of the Crown (as the term was then).

[12] A 13-day trial took place between July 11, 2018 and October 23, 2019. The Society sought extended society care, with specified access to the mother and no access to the father.

[13] At trial, the Appellant’s initial plan was that the children be returned to him under a supervision order. During the trial he was given leave to file an amended answer and plan of care. In his amended materials, the Appellant presented two alternative plans, one where the children would be placed in the Appellant’s mother care and the other plan was placing the children in the joint care of the Appellant and his mother, under a supervision order.

[14] The Respondent mother supported the Appellant’s position.

[15] As set out above, the trial judge determined that it was in the best interest of the children to be placed in extended society care, with some access to the mother but no access to the father.

Ground of Appeal

[16] The ground of this appeal is that the judge erred by rejecting the Appellant’s plan for the children to reside in his care prior to hearing final submissions, raising a reasonable apprehension of bias, and thus depriving the Appellant his right to a fair hearing.

[17] The Appellant refers to specific statements made by the trial judge as follows:

a. “The other piece, I want father to have access with these children. It is – the custody order does not have him as a sole custody parent and at this point in time, I will be frank with you, that is not on my horizon, not on my horizon at all”. Transcript, October 19, 2018, page 153, lines 17-24. b. “What the children receive, something that is nourishing, not argument with whoever is supervising that access and it will be supervised at this point in time”. Transcript, October 19, 2018, page 155, lines 1-5. c. “THE COURT: If extended care is not the decision and the focus is on the grandmother, and the grandmother, under conditions of supervision, and restrictions on father, access for the children with mother under a supervision order would be a given. THE WITNESS: Right. THE COURT: Access to father may or may not form part of that. It certainly would not be an unsupervised access at this point, but I am – this is where I am waiting for your submissions, because I am still trying to sort out whether there is an alternative to the extended care and maintenance”. Transcript, October 22, 2018, page 12, lines 5-20. d. “I would not, under any circumstances, be allowing the Society all by itself to be trying to sort out what that should look like, access between the boys and their father, or either boy or father. If there is to be that kind of a situation, it will be activated, in terms of father child access, only if certain things are accomplished ahead of time, and it is not a matter of a few weeks. It would be a matter of months, maybe years”. Transcript, October 22, 2018, page 13, lines 15-25. e. “[I]t will certainly be an expectation of the Court that if the children are not ordered into extended care, that two essential back up people for that grandmother are these two parents”. Transcript, October 22, 2018, page 19, lines 17-20.

The Law

[18] Both parties rely on the Supreme Court of Canada decision R. v. S. (R.D.), [1997] 3 S.C.R. 484, a good starting point in analysing the case before me. In that decision, the trial judge made some negative comments about the attitude of police officers, not tied to the police officer who gave evidence in court. The Supreme Court of Canada considered whether the judge’s comments gave rise to a reasonable apprehension of bias and ultimately concluded that there was no reasonable apprehension of bias. The Court held that the trial judge’s comments reflected an appropriate recognition of the facts in evidence and of the context in which the case arose.

[19] There are several concepts that arise from the Supreme Court of Canada’s decision. The concept of bias denotes a state of mind that is in some way predisposed to a particular result or to decide an issue in a particular way. The Court set out the test: A reasonable apprehension of bias is raised where an informed and reasonable observer, viewing the matters realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly: at paras. 31, 36, 37, 58, and 111. If actual or apprehended bias arises from a judge’s words or conduct, the judge has exceeded his or her jurisdiction: at para. 99.

[20] On the flip side, the Court also defined impartiality as “a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions”: at para. 104.

[21] The Court commented that the reasons should be read in their entirety, and impugned passages should be construed in light of the whole of the trial proceedings and in light of all other portions of the judgement: at paras. 50 and 100 and see R. v. D’Souza, 2004 CarswellOnt 2981 (C.A.), at para. 7. Deciding whether a reasonable apprehension of bias arises requires a highly fact-specific inquiry: S. (R.D.), at para. 114 and Lloyd v. Bush, 2012 ONCA 349, 110 O.R. (3d) 781, at para. 26. The trial record must be assessed in its totality and the offending comments evaluated cumulatively rather than as isolated occurrences: Lloyd, at para. 26.

[22] The threshold for finding an apprehension of bias is high: S. (R.D.), at paras. 113 and 118 and see also D’Souza, at para. 7. The grounds for the apprehension must be substantial: see e.g. Lloyd, at paras. 24-25. There is a presumption of impartiality: Health Genetic Center v. New Scientist Magazine, 2019 ONCA 977, 313 A.C.W.S. (3d) 4, at para. 10. The onus lies on the person alleging bias: Health Genetic, at para. 10 and S. (R.D.), at para. 114.

[23] The law is clear that where a judge expresses conclusions in a proceeding before providing a party with an opportunity to present evidence or make submissions, this is an untenable error in trial fairness and considered an error in law: see e.g. S. (R.D.), at paras. 99-100, Catholic Children’s Aid Society of Toronto v. Y.K., [2007] O.J. No. 3080 (Ont. S.C.), at para. 50, D’Souza, at paras. 8-11, R. v. Lyttle (2005), 202 C.C.C. (3d) 549 (Ont. C.A.), at paras. 21-23 and R. v. Bartlett (1950), O.W.N. 447 (H.C.).

[24] The Appellant relies on a number of criminal law cases where the judges stated their conclusions before submissions had been made or evidence concluded. The Court of Appeal has previously stated that there is a reasonable apprehension of bias if a judge comes to a conclusion before hearing all the evidence or hearing submissions.

Analysis

[25] One case the Appellant provided was Catholic Children’s Aid Society of Toronto v. L.C.. In that case, after the conclusion of the last witness, the trial judge directed comments specifically to L.C., one of the parties in the proceedings, advising her that he will not be returning the child to her care. He stated: “I’m going to tell you right now, I’m not going to let M.F. go home with you”. The trial judge then asked counsel if they wanted to put their submissions on the record in the event the decision was reviewed, but then proceeded to give his decision. The trial judge agreed to written submissions “to formalize the proceedings” but told them what order he was going to make before the submissions were made. He pronounced his judgement prior to submissions. This is an extreme case but the approach by the court is helpful. In allowing the appeal, the Appeal Court differentiated this case from wording such as “leaning towards” or “would be likely to grant” where a judge is amenable to persuasion: at para. 31. I find the comments made by the judge in the case before me are akin to the latter than the former comments and do not raise a reasonable apprehension of bias.

October 19th Statements

[26] In reading the October 19th statements in question (set out in paragraphs 17(a) and (b) above) in the context in which they were made, I find that the judge had not reached a fixed or firm conclusion on the issue of custody or access before hearing closing submissions. The judge still had an open mind on all issues and was amenable to persuasion during closing submissions.

[27] Looking at the sentence immediately following the one highlighted by the Appellant, at page 153 of the transcript, the judge specifically states that “It is--the custody order does not have him as a sole custody parent and at this point in time, I will be frank with you, that is not on my horizon, not on my horizon at all. The law would not permit me, unless I am persuaded otherwise when you do your submissions ”. (emphasis added)

[28] With respect to the statements made at page 153 and 155 of the transcript, the context in which these statements were made is of great assistance in deciding this appeal. At page 143 of the transcript and for the next several pages, the judge and counsel have a discussion about closing submissions taking place on Monday October 22nd. The judge advises the parties that she has been reviewing all of the evidence every day and is familiar with the law, so they do not need to spend time in those areas. She takes the opportunity to speak directly to the parties, and specifically states that “ I don’t know at this point what the decision will be and I am not playing games with you …obviously I am looking for a family plan as a first alternative, because the law requires me to do exactly that. And I would be doing it anyways…” (emphasis added). The judge specifically states that she will be interested in hearing the submissions from counsel. The judge spends a lot of time going through all of the issues and options available including a family plan, access for the mother, the native heritage piece, First Nations involvement, and access for the father “ in the event that there is a family plan and he is not a custody parent ” (emphasis added).

[29] At page 154, line 30 the judge asks the lawyers to provide her with various options that might be available if access if going to be ordered. At page 156 she carries on and says “And now, grandmother. If these children are placed with the grandmother, and I don’t know at this point in time—that why I am anxious for your submissions ” (emphasis added).

[30] The judge spends 14 pages in the transcript putting various scenarios to counsel and asking for their submissions. She summarizes on page 157: “ So, I am having trouble finding a way to get there. So, as it sit right now, Crown ward ship is not off the table, but I am trying very hard to find an alternative to it and as I have said, I do that not just because I care about these little children, but because the law requires me to first see if I can do something that will stay put ”.

[31] When the paragraphs that raised concern for the Appellant are read in context, I conclude that the judge had not made up her mind on the custody and access issues and therefore I do not find there was a reasonable application of bias.

October 22nd Statements

[32] The Appellant’s submissions (with respect to statements found at paras. 17 (c), (d) and (e) above) do not provide the full context of the judge’s comments. On October 22, 2019, the Society Family Worker, Kelly Rose-Hurst, was in the witness stand to provide reply evidence. The judge asked Ms. Rose-Hurst questions to help understand the different access options depending on the ultimate outcome of the trial. The judge posed a number of hypothetical questions to the witness, that usually, but not always, starting with the qualifier “if”.

[33] At page 12, the judge puts a hypothetical to the witness, “If extended care is not the decision and the focus is on the grandmother, under conditions of supervision, and restrictions on father…”. It is within this context that the judge also stated: “this is where I am waiting for your submissions, because I am still trying to sort out whether there is an alternative to the extended care and maintenance”. She follows with several other scenarios, often starting off with “if”, “If there is to be that kind of scenario”. At page 13 she stated: “Now that—if that ends up being the course of the case, and I honestly do not know as it sits right now, nor should I, I do not know whether or not it is going to be available to me, because it has to be – it is a very, very tough decision, and I do not know what – where it is going to end up at this point”.

[34] The judge carries on considering various scenarios. At page 19 of the transcript, the witness is talking about the mother’s access if the children are placed in extended society care. The judge asks about adjustments that need to be made if the children are placed in the grandmother’s care, because the grandmother’s evidence was that she would rely on two essential back-up people, being the two parents. The judge carries on to question how the arrangement would work and what would parental involvement involve.

[35] Finally, in reviewing the Decision, the judge devoted 37 paragraphs (at paras. 182-219) to evaluating the Appellant’s plan of care and specifically his plan that he have custody of the children.

[36] As set out above, the threshold for finding an apprehension of bias is high. Considered cumulatively and in full context after reading the transcript from the trial, I am not persuaded that the trial judge’s comments are evidence of an apprehension of bias. The comments made by the judge in this case are differentiated from the decision in C.A.S. v. L.C. and different than the criminal cases provided. The Appellant has not met his onus and the appeal is dismissed.

Order

[37] The Society asks that the appeal be dismissed without costs, even though they would be entitled to costs as the successful party. As such, order to go as follows:

a. Appeal dismissed. b. No costs.

S. Shore, J.

Released: March 2, 2020

COURT FILE NO.: FS-18-00006737 DATE: 2020302

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Toronto Applicant (Respondent in Appeal) – and – J.H. Respondent/Appellant – and – H.C. – and – Curve Lake First Nation

REASONS FOR JUDGMENT

S. Shore, J.

Released: March 2, 2020