Court File and Parties

COURT FILE NO.: FS-20-15582 DATE: 20200714 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jewish Family and Child Service of Greater Toronto AND: M.H. and M.H. AND: The Attorney General of Ontario and the Attorney General of Canada

BEFORE: J.T. Akbarali J.

COUNSEL: Haley Gaber Katz, for the Respondent in Appeal/Respondent in Motion, Jewish Family and Child Service of Greater Toronto David P. Miller, for the Appellant in Appeal/Moving Party in Motion, M.H. M.H., Respondent in Appeal/Respondent on Motion, In Person Peter Entecott, for the Attorney General of Ontario, Respondent on the Motion No One Appearing, for the Attorney General of Canada, Respondent in Charter Motion

HEARD: July 14, 2020

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.

Endorsement

Overview

[1] The appellant mother, M.H., appeals from the decision of Sager J. of the Ontario Court of Justice, dated January 10, 2020, in which, among other things, on a summary judgment motion, Sager J. placed the mother’s now-10-year-old child, M.D.H. in the extended care of the respondent, Jewish Family and Child Service of Greater Toronto (the “Society”).

[2] The appeal has not yet been perfected or scheduled for a hearing. The mother sought legal aid assistance but her application, and subsequent appeal, has been denied.

[3] As a result, the mother brings this motion for an order that the legal fees and disbursements for bringing her appeal, and this motion be paid for by the Attorney General of Ontario.

The Decision of Sager J.

[4] According to the facts found by Sager J., M.D.H. is a child with complex mental and physical needs. He has been diagnosed with Austism Spectrum and Attention Deficit Hyperactive Disorder (ADHD). M.D.H. has significant impairments in communication and social interaction.

[5] The family has been known to the respondent Society since 2011, when protection concerns first arose. M.D.H. was brought to a place of safety on July 9, 2018 as a result of the Society’s concerns about the mother’s inability to manage M.D.H.’s behaviours. An amended protection application was commenced in July 2018. In August 2018, M.D.H. was moved to Stratford Children’s Services (SCS) where he continues to reside. SCS is a facility that supports mentally challenged children by offering counselling, residential placements, supportive programming and respite services.

[6] Prior to M.D.H. being taken into care, the mother cared for M.D.H. with significant help from her mother, M.D.H.’s grandmother, the respondent M.H., with whom the mother and her adult son live.

[7] On April 4, 2019, Curtis J. made a finding that M.D.H. was a child in need of protection. This finding was not opposed by the grandmother, but it was opposed by the mother.

[8] When M.D.H. first entered care, he was non-verbal, not toilet trained, and had a limited diet. He had difficulty walking and required a stroller. He engaged in aggressive attention seeking behaviours, such as biting, pinching, smearing feces and throwing objects. He was unfocused, unable to complete activities, and lacked social skills. He required full-time supervision.

[9] Since coming into care, M.D.H. has improved in significant ways. For example, he has improved his self-care, he no longer uses a stroller, and he has improved his social skills and his ability to understand expectations regarding his behaviour. He attends school for 90 minutes per day. His vocabulary has increased notably. He continues to require full-time supervision.

[10] The grandmother supported the Society’s summary judgment motion before Sager J., deposing that M.D.H. has changed greatly while living at the SCS. In her view, M.D.H.’s. needs are better met by the Society and being at SCS. The mother opposed the Society’s summary judgment motion, and sought a trial.

[11] In granting the Society’s motion, Sager J. made a number of findings, including that, while the mother loves M.D.H., and has made efforts to educate herself on how best to deal with his behaviours, her ability to do so is inconsistent, and she has required prompting from social workers. Sager J. found that the Society had provided the mother with significant supports, but that despite the extensive training the mother had received, she was unable to demonstrate the ability to care for M.D.H. without assistance and supervision. She found that the mother was unable to care for M.D.H. without significant assistance from the grandmother. She concluded that it was the grandmother who took the lead in caring for M.D.H., with the mother’s encouragement. She found that the mother at a minimum acquiesced in allowing the grandmother to be the go-between for the family with both the Society and SCS staff.

[12] Sager J. concluded that she had no confidence in the mother’s plan to care for M.D.H. in the grandmother’s home. She found that the mother’s development of the skills necessary to care for M.D.H. was impacted by the mother’s failure to attend as much access with him as possible, noting her failure to attend for access with M.D.H. at SCS when the grandmother was unable to drive her. She made reference to the mother’s refusal of services, cancelling of services, and threats to abandon M.D.H. if he was placed in the Society’s extended care.

[13] Sager J. was concerned about the lack of details in the mother’s proposed plan of care. Sager J. concluded that despite the mother’s love for her son and her best efforts to acquire the skills to meet his needs, she has been unable to do so and cannot be entrusted with his full-time care.

[14] Notably, in reaching her conclusions, Sager J. made several mentions of evidence led by the Society that the mother had not contested, or that she had only baldly denied. I note here that the Society’s summary judgment motion record was over 2000 pages long, including over 1000 pages of single-spaced case notes. In contrast, the mother’s summary judgment affidavit was about a page long, and apart from the addition of two paragraphs of one sentence each, was a copy and paste of her Answer and Plan of Care.

[15] In the result, Sager J. made orders, among other things, placing M.D.H. in the extended care of the Society, granting M.D.H. physical access to the mother at a minimum of once per month, and granting M.D.H. physical access to the grandmother at least once every two weeks.

The Grounds Raised on Appeal

[16] In her amended notice of appeal, the mother relies primarily on the ineffective assistance of counsel, and argues that summary judgment was not appropriate in this case. In her affidavit, she particularizes the arguments she intends to make on appeal. These include:

a. Her counsel never provided her with copies of the Society’s six-volume motion record. She had no opportunity to read or review it. b. Her counsel never scheduled a meeting with her from the date he received the Society’s motion record until the date she attended at his office to sign her affidavit on the summary judgment motion. c. The meeting she had to sign her affidavit lasted five minutes. She had no involvement in preparing her affidavit other than reading it and signing it. d. Her counsel never reviewed the Society’s motion record with her, nor did he seek any information from her about the Society’s motion record to prepare a response. e. Her counsel never raised any issues about whether she should object to the admissibility of any evidence in the Society’s motion record. f. Her counsel did not inform her of her obligation to put her best foot forward on a summary judgment motion, nor did he explain what a summary judgment motion is. g. She states that, from looking at the file, it appears her counsel never reviewed disclosure of the Society’s file in preparation for the summary judgment motion.

[17] The mother intends to bring a motion for fresh evidence, in which she will include the evidence she states she would have led at the summary judgment motion if her counsel had given her the opportunity to consult on what should be put forward. In general, in her evidence, the mother would:

a. dispute some of the Society’s and SCS staff’s observations during her supervised access visits. b. explain her relationship with the grandmother, and how the mother is soft-spoken while the grandmother is outspoken. The mother states that this may have led staff to conclude that she was not participating in discussions when in fact, she was actively listening and taking in what was being said; c. dispute that she relied upon the grandmother to speak to SCS staff or to take most of the responsibility for caring for M.D.H. Rather, she states that she and the grandmother worked equally as a team to care for M.D.H. d. explain that the grandmother wrote in the communication book by her wishes, the mother saw no reason to get in her way, and she did not think it made sense that they both write in the communication book. e. dispute that she was inconsistent in implementing strategies she was taught to manage M.D.H.’s behaviours. f. explain that she consistently engaged with services teaching her skills to take care of M.D.H. when he was not in her care, offered through different organizations. g. explain that her statements that she would abandon M.D.H. if he was placed in the Society’s extended care were said in anger, and she did not mean them. h. explain that she did not know she was able to go to SCS for additional access visits.

[18] I note that this proposed fresh evidence goes directly to a number of the conclusions drawn by Sager J., including some drawn because the mother’s evidence did not contest the Society’s evidence, or because her evidence was nothing more than a bald denial of the Society’s evidence.

Issue

[19] The only issue before me on this motion is whether the mother meets the test for an order entitling her to funding for her fees and disbursements of this appeal. I note that the Society, and the Attorney General of Ontario take no position on the motion. The Attorney General of Canada presumably takes no position, since it did not attend the motion. The grandmother opposes the motion.

The Test for Funding

[20] The test for funding is set out in Children’s Aid Society v. L.M., 2018 ONSC 3633, citing New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999], 3 S.C.R. 46. It requires:

a. The interests at stake in the proceeding must engage the moving party’s rights under s. 7 of the Charter of Rights and Freedoms; b. The court must consider whether the moving party can receive a fair hearing without counsel, having regard to the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent; c. The moving party must demonstrate that they have applied for legal aid and exhausted all possible avenues for otherwise obtaining state-funded legal assistance. d. The moving party must be unable to afford a lawyer. e. The appeal must have merit.

[21] I turn to each of these branches of the test.

[22] First, I conclude that the mother’s s. 7 rights are engaged. In L.M., supra, at para. 39, the Court of Appeal for Ontario held that an order that terminated the appellant’s access to her children, and, in effect, deprived her of her relationship with them, engaged her s. 7 interests. Although Sager J.’s order does not terminate the mother’s access to M.D.H., it places M.D.H. in the Society’s extended care and restricts the mother’s access with M.D.H. to once a month, subject to the discretion of the Society with respect to the location, duration and level of supervision of the visits, as well as whether to permit additional visits. Thus, while not depriving her entirely of her relationship with M.D.H., it significantly restricts her relationship with him, such that her s. 7 rights are engaged.

[23] Second, I conclude that the mother cannot have a fair hearing without counsel. The interests at stake in this appeal are serious, involving the placement of M.D.H. in the Society’s extended care, and restricting the physical access between the mother and M.D.H. subject to the Society’s discretion, as I have just described.

[24] The proceedings are complex. The mother will have to show error on the part of the motion judge, which may include dealing with issues around the admissibility of evidence; she will have to demonstrate the ineffective assistance of her counsel; and she will have to put forward fresh evidence to call into question the findings of fact made by the motion judge. In doing so, she will have to grapple with an evidentiary record filed by the Society of over 2000 pages. This will require a motion for fresh evidence, a complicating step in the appeal. The grandmother has indicated her intention to move to admit fresh evidence if the appeal proceeds. The mother would have to determine whether and how to respond to such a motion if brought, which is yet another complicating factor.

[25] The mother is a high school graduate and holds a diploma from Centennial College in Early Childhood Education. She is not currently employed, but is on ODSP due to colitis. She deposes that she is overwhelmed by the volume of the Society’s summary judgment motion record, and she has no idea how to identify what is important in it. She has no experience with litigation and no knowledge of child protection law, the rules of evidence, or how to argue an appeal. She deposes that she finds court appearances to be confusing, as everything moves too fast for her to keep up and understand what is going on. I accept that the mother is not in a position to effectively act for herself in these circumstances.

[26] Third, the mother has demonstrated that she has applied for legal aid funding and was denied. She has demonstrated that she has exhausted her appeals of that decision. There is no other avenue of state-funded legal assistance available to her.

[27] Fourth, the mother’s sole source of income is her ODSP payments. She receives $1,839 per month, which must fund her basic needs, shelter, and special diet to manage her colitis. She has no assets or savings. She is unable to afford a lawyer.

[28] Finally, I must determine whether the mother’s appeal has merit. To establish merit, the mother does not have to demonstrate that she has a strong case on appeal. She need only establish that her appeal has “at least some chance of success or some basic merit”: L.M., supra, at para. 42.

[29] The merits branch of the test has also been described as requiring “some arguable legal ground to support the appeal”, or “some chance of success”. Courts have held that the minimum merit threshold should not be applied, except in the most obvious of cases, to deny a person legal representation in a case where a person’s constitutional rights under the Charter of Rights and Freedoms may entitle that person to representation: R.A.F. v. Saskatchewan, 2003 SKQB 507, at para. 7; W.S. v. Alberta (Child, Youth & Family Enhancement, Director), 2013 ABQB 231, at paras. 10, 15.

[30] In P.B. v. Nova Scotia, 2014 NSSC 183, at paras. 92-95, the court described the merit test as a “minimum merit threshold”, relying on R.A.F. It held that whatever merit test is applied should only be a minimum test, and it noted that the determination on merit must be the court’s own; the court is not bound by the assessment of merit made by Legal Aid.

[31] In L.D. v. J.B., 2012 ABQB 693, at para. 34, the court concluded that the appellant had not established that the appeal is meritorious because the appeal had “little chance of success”.

[32] The grandmother opposes the motion on the basis that the appeal does not have merit. She states that M.D.H. is well cared for and doing wonderfully at SCS. She disputes that the mother has a plan of care for M.D.H.

[33] Many of the grandmother’s concerns are not before me in evidence on this motion. Some are reflected in Sager J.’s reasons. The grandmother obviously believes that M.D.H. is best served by remaining in the care of SCS. However, whether she is right about M.D.H.’s ultimate placement is a matter for the appeal judge. My role on this motion is to determine the funding issue only, and in that context, as I have noted, the mother need only meet a minimum threshold of merit.

[34] I am satisfied that the mother’s appeal meets the required minimum threshold of merit on a motion for state-funded counsel. Her arguments about ineffective assistance of counsel cannot be said to have “little chance of success” in view of the issues she raises, including her lack of opportunity to review or comment on the Society’s summary judgment motion record, her counsel’s lack of consultation with her about her response on the motion, her evidence that she could have given evidence to contest or do more than baldly deny at least some of the Society’s evidence on which Sager J. relied in reaching her conclusions, and in view of the imbalance between the Society’s record on the motion – over 2000 pages – and her own affidavit – barely over a page in length without a single exhibit attached.

[35] The mother has satisfied all branches of the test for funding. I thus conclude she is entitled to a funding order.

Order Made

[36] In conclusion, I make the following order:

a. This court declares that the appellant, M.H.’s, rights under s. 7 of the Canadian Charter of Rights and Freedoms would be breached if she must continue this appeal without the assistance of counsel. b. The Attorney General of Ontario shall provide the appellant with state-funded counsel of choice for her appeal, to be paid at Legal Aid Ontario rates, along with funding for reasonable disbursements associated with this appeal. c. The appellant is entitled to her full recovery costs of this motion, to be paid for at legal aid rates, to her counsel, together with funding for reasonable disbursements associated with this motion, to be paid for by the Attorney General of Ontario. d. This endorsement is an order of the court, enforceable by law from the moment it is released.

J.T. Akbarali J. Date: July 14, 2020