



WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
    PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives from all
    or a part of a hearing; or

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

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.

45(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
    childs parent or foster parent or a member of the childs family.

45(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.




COURT OF APPEAL FOR ONTARIO

CITATION: Children's Aid Society of the Regional Municipality

of Waterloo v. C.T., 2017 ONCA 931

DATE: 20171201

DOCKET: C63467 & C63470

MacFarland, Watt and Benotto JJ.A.

BETWEEN

The Childrens Aid Society of the Regional
    Municipality of Waterloo

Appellant

and

C.T.

(Appellant by
    Cross-Appeal)

and

J.B.

Respondent

(Appellant by
    Cross-Appeal)

and

Brigitte Gratl

Appellant by
    Cross-Appeal

Jeffrey
    Boich, for the Childrens Aid Society of the Regional Municipality of Waterloo

Julie
    Kirkpatrick, for C.T.

Katherine
    Hensel, for J.B.

Catherine Bellinger, Office
    of the Childrens Lawyer, for the child

Susan M. Sack and Kelly
    Eckert, for Brigitte Gratl

Stan Jenkins and Marie
    Abraham, for the intervener Legal Aid Ontario

Heard: September 27, 2017

On appeal from the orders of Justice G.A. Campbell of the
    Superior Court of Justice, dated February 9, 2017 and May 30, 2017, allowing an
    appeal from the judgment of Justice P.A. Hardman of the Ontario Court of
    Justice, dated December 15, 2015.

Benotto J.A.:

OVERVIEW

[1]

This appeal involves a 10-year-old girl. It is
    the second appeal from the trial decision. Following a 17-day trial, she was
    made a Crown ward with no access for the purpose of adoption. The biological
    parents appealed the no access order. The first appeal judge found no error
    with the trial judges determination of access, but nonetheless ordered access followed
    by an openness hearing before him. In a wide-ranging analysis, he said trial
    counsel was incompetent; ordered her to pay costs personally; declared the
    trial unfair; and said there had been a miscarriage of justice. In oral
    reasons, he apologized to the parents on behalf of the system. As a result,
    there are several secondary issues on this appeal.

[2]

The Childrens Aid Society, supported by the
    Childrens Lawyer, appeals the appeal judges orders as to access. The
    biological parents cross-appeal seeking declarations that there has been a
    miscarriage of justice. The impugned trial counsel cross-appeals the findings
    of ineffective assistance and the costs award against her. Legal Aid Ontario
    obtained intervener status on the costs award.

[3]

For the reasons that follow, I would allow the
    appeal by the Childrens Aid Society and restore the trial judges
    determination of no access. I would dismiss the parents cross-appeal. I would
    allow counsels appeal as to ineffective assistance and costs.

THE FACTS

[4]

C.T. (the mother) and J.B. (the father) are
    the biological parents of a child born January 12, 2007. This child was not the
    mothers first. Another child, who is an adult and not part of these
    proceedings, had been previously removed from her care after the child was
    found in need of protection largely as a result of the effects of the mothers substance
    and alcohol abuse. That child was successfully placed for adoption. In this way,
    the mother was known to the child welfare authorities.

[5]

In 2006 the
Childrens Aid Society of the
    Regional Municipally of Waterloo (the Society)
received a
    referral from a public health nurse who learned that the mother was pregnant
    again. Shortly after the childs birth, the mother tested positive for
    marijuana. A nurse observed the mothers speech to be slurred. Although the
    child remained in her mothers care, there were incidents of police involvement
    as a result of domestic violence reports. There were also ongoing reports to
    the Society about the mothers alleged use of drugs in the presence of the
    child. A series of hair screens completed on the child in 2010 and 2011 showed
    positive results for cocaine and marijuana. In January 2012 the father told the
    Society that the mother was prostituting herself.

[6]

In May 2012 the parents and the Society agreed
    that the child should be found in need of protection. The parents signed a
    Statement of Agreed Facts. The Statement outlined and summarized the background
    including the following:

i

From 2002 to 2012 there were ongoing issues regarding the parents drug
    usage;

ii

The mother was involved in the sex trade industry;

iii

There were incidents of domestic violence between the parents;

iv

The mother had mental health issues including bipolar disorder and
    personality disorder;

v

The father was diagnosed with chronic pain, dysrhythmias, and panic
    disorder;

vi

Since February 2012, the father has had only supervised visits with the
    child and further access would be at the discretion of the Society; and

vii

The child is not an Indian or native person.

[7]

Upon the finding that the child was in need of
    protection, she remained in the mothers care subject to a supervision order.
    One of the conditions of the order required the mother to abstain from illegal
    drug use. In September 2012 the mother tested positive for cocaine and the
    child was apprehended.

[8]

The Society commenced a status review
    application seeking 8 months Society wardship. In July 2013 the Society
    amended its status review application to seek Crown wardship, no access,
    following another Motherisk test showing that both the mother and the child
    tested positive for cocaine.

The Trial

[9]

The amended status review application proceeded
    to trial before Hardman J. for 15 days in 2014 and 2015. During the trial, the
    Motherisk drug testing came under scrutiny and the Ontario government
    commissioned an independent review of the drug testing program. In June 2015,
    after the trial ended, but before the trial judge released her decision, the
    child was placed with a proposed adoptive parent. On December 15, 2015 the
    trial judge released her reasons.

[10]

The trial judge made an order of Crown wardship,
    no access, for the purpose of adoption. She concluded that the child was still
    in need of protection. She detailed the reasons for her conclusion that the
    mother was not able to parent the child, including:

i

Her failure to address her issues of mental health and emotional instability;

ii

Her continued use of drugs and involvement with others in the drug
    lifestyle;

iii

Her inability to properly look after the child while in her care;

iv

Her inability to recognize her responsibilities as a parent;

v

Her inability to learn or gain any insight into her parenting problems
    or possible solutions;

vi

Her inability to follow through with commitments made or expectations,
    including those of a court order;

vii

Her complete inability to focus unselfishly on the child and the childs
    needs;

viii

Her
    inability to maintain a stable home and safe surroundings for the child; and

ix

Her inability to ensure that the child is not exposed to harmful
    activity or inappropriate people.

[11]

The trial judge also set out concerns about the
    fathers inability to protect the child or meet her best interests. She found
    that he had issues with transience, physical and mental health, and drug use.
    He had not addressed his finances, his homelessness and his own health. He was
    unable to care for himself, let alone the child.

[12]

The trial judge was aware of the fact that the
    Motherisk test results were the subject of scrutiny, controversy and complaint.
    She ignored the test results and placed no weight on them. She concluded that
    the evidence  apart from the Motherisk results  supported her conclusion that
    the best interests of the child were not served by placing the child with the
    mother or the father.

[13]

The trial judge considered access. She concluded
    that neither parents access was beneficial for the child. She found at para.
    211 that [g]iven the parents difficulty in recognizing rules and boundaries,
    I would have concern about them undermining any placement with direct contact
    with the child.

After Trial

[14]

Bridgette Gratl represented the mother
    throughout the trial. She (together with fathers counsel) appealed the trial
    judges order. In June 2016 the mother terminated the solicitor-client
    relationship with Gratl.

[15]

In July 2016 the parents received an affidavit by
    Todd Perrault, a clinical investigator with the Office of the Childrens
    Lawyer. He outlined the views and preferences of the child and the adoptive parents
    position on access and openness. Following receipt of Perraults affidavit, the
    parents amended their appeal to address only the issue of access. The childs
    status as a Crown ward was thus conceded.

[16]

In August 2016 the parents filed affidavits
    declaring for the first time that the father was Cree and the mother was Mikmaq.
    The following month the parents requested  and all parties agreed  to attend
    a process of Aboriginal Alternative Dispute Resolution. The matter did not
    resolve and the appeal continued.

The Appeal

[17]

The appeal was heard in the Superior Court in
    Kitchener for three days in early 2017. The appeal judge delivered oral reasons
    for his decision. The first 16 paragraphs of his reasons are a scathing review
    of Ontarios child welfare system and an apology to the parents for the manner
    in which they were treated, ignored, demeaned and disbelieved.

[18]

He considered fresh evidence including the
    affidavit of Perrault, which indicated that the child loves her parents, wants
    to see her parents, and also wants to be adopted by the proposed adoptive
    parent. By this time, the child had been with the proposed adoptive parent for
    almost two years and was flourishing.

[19]

The appeal judge concluded that  although the
    trial judge did not err  the parents should have access. He ordered access but
    stayed the execution of the order save for one visit to be followed by an
    openness hearing before him.

[20]

The appeal judge outlined what he considered to
    be: a miscarriage of justice; the trial judges interference, bias and abuse of
    the trial process; procedural delay; and the incompetence of trial counsel. He
    invited costs submissions against trial counsel personally.

[21]

Meanwhile, the Society appealed and moved for a
    stay of the openness hearing, pending appeal. On April 28, 2017, Strathy C.J.O.
    determined that there was a serious issue to be tried, granted the stay and
    made the following endorsement at paras. 7 and 9:

[7]      In my view, there is also as serious issue to be
    resolved of whether the judge had jurisdiction to order an openness hearing
    before him in a region in which the Family Court does not have jurisdiction. At
    paras. 94 and 95 of his reasons, he found that he had that jurisdiction, but
    did not elaborate beyond stating that he had a family patent. He did not
    address the fact that Kitchener-Waterloo is not a part of Ontario where the
    Family Court has jurisdiction within s. 21.8(1) of the
Courts of Justice
    Act
.

[9]      If the appellant is correct in its interpretation of
    the law, any openness hearing would be a nullity. The same result would follow
    if the judge has no jurisdiction to conduct the openness hearing.

[22]

Later in May, the parties returned to the appeal
    judge to deal with allegations against trial counsel and the costs that might
    follow. Gratl together with Jane McKenzie, trial counsel for the father, asked
    the appeal judge to set aside his findings about their conduct. The appeal
    judge set aside his findings against McKenzie and ordered that all references
    to her ineffective assistance be expunged from his original reasons. His
    decision concerning Gratl was different. He resiled somewhat from his view that
    she had been solely responsible for a miscarriage of justice at trial, but he
    concluded that she was responsible for the mother not having access to her
    child for 14 months because she had not applied for access pending appeal. He
    ordered her to personally pay costs totaling $100,000: $50,000 to Legal Aid
    Ontario and $50,000 to new counsel for the mother.

ISSUES BEFORE THIS COURT

[23]

The Society appeals the access order. The
    parents seek declarations that their rights under the
Canadian

Charter
    of Rights and Freedoms
have been violated and that

there has been
    a miscarriage of justice. Gratl appeals the findings of incompetence and the
    resulting costs order. Legal Aid Ontario (LAO) obtained intervener status
    because of the costs that were ordered to be paid directly to the mothers
    counsel on appeal.

[24]

The appeals and cross-appeals raise the
    following issues:

1)

Did the appeal judge err in ordering access?

2)

Are the parents entitled to the declarations sought?

3)

Did the appeal
    judge err in finding
ineffective assistance of
    counsel and ordering costs against the counsel?

ANALYSIS

[25]

Despite the appeal judges sweeping condemnation
    of the child welfare system, the justice system, and the treatment of Indigenous
    citizens, I intend to focus on the issues I have articulated. The most
    important issue is the future of the child, now 10 years old. Thus, I begin
    with the only issue that was properly before the appeal judge: access to her by
    the parents.

Did the appeal judge err in ordering access?

[26]

The Society, supported by the OCL, submits that
    the appeal judge erred when he overturned the no access provision because he
    failed to apply the mandatory provisions in s. 59(2.1) of the
Child and
    Family Services Act,

R.S.O. 1990, c. C.11
(the
Act
);
    he ordered access in the absence of an evidentiary foundation; and he had no
    jurisdiction to seize himself of the openness hearing.

[27]

The parents submit that the issue of access is
    far more complex. It engages, they say, a broad-based best interests analysis
    viewed through the lens of the
Charter
rights of the parents and the
    child, the Indigenous heritage of the child and the general unfairness of the
    child welfare system.

[28]

I have concluded that in ordering access, the
    appeal judge erred in four ways:

1.

He did not apply the correct standard of review. Having found that the
    trial judge made no errors, there was no basis for appellate intervention.

2.

The fresh evidence on access did not support the access order.

3.

He did not comply with s. 59(2.1) of the
Act
, which sets out the
    requirements for ordering access to a Crown ward.

4.

He erred in his consideration of the childs Indigenous heritage.

[29]

Further, the process the trial judge proposed for
    the openness hearing was wrong in law.

[30]

I will address each of these points in turn.

The standard of review

[31]

The trial judge made extensive factual and
    credibility findings relating to access. The appeal judge found no error with the
    trial judges determination of access. At para. 81 he said: the trial judge
    may well have been correct. And at para. 73, he found no overriding and
    palpable error by the trial judge.

[32]

The appeal judge referred to his own decision
    in
Van Wieren v. Bush
, 2015 ONSC 4104, 65 R.F.L. (7
th
)
    463 on the standard of review. There, at para. 9 he said: It is not the
    function of the Appeal court to retry the case. If there is
some
evidence upon which the trial judge could have
    reached her factual conclusions, the appeal court will not intervene.
    [Emphasis in the original.]

[33]

Despite this self-instruction on the standard of
    review, the appeal judge changed the no access order after having found no
    error by the trial judge. The trial judge had made extensive findings of
    credibility and her conclusions on the best interests of the child were
    supported by the evidence. In
Woodhouse v. Woodhouse
(1996)
, 29 O.R. (3d) 417 this court quoted
    with approval the concurring reasons of Cory and Iacobucci JJ. in
P.(D.) v.
    S.(C.)
, [1993] 4 S.C.R. 141, at p.192:



On issues of credibility, a trial
    judge is uniquely well placed to make the necessary findings. An appellate
    court should, apart from exceptional situations, refrain from interfering with
    those findings.

Similarly, the trial judge is in the best position to assess
    evidence pertaining to the best interests of the child. It is the trial judge
    who not only hears the evidence but also has the great advantage of watching
    the demeanour of all who testify. It is the trial judge who can take into
    account the significant pauses in the responses, the changes in facial expression,
    the looks of anger, confusion, and concern. In the vast majority of cases as a
    result of hearing and seeing all of the witnesses, it is the trial judge who is
    in the most advantageous position to determine the best interests of the child.

[34]

The conclusion that the trial judge made no
    errors should have ended the appellate inquiry. Instead, the appeal judge went
    on to consider the fresh evidence about access. As I will explain, the fresh
    evidence did not support overturning the trial judges decision. Nor did it
    satisfy the mandatory requirements of the
Act.

The fresh evidence about access

[35]

The test for fresh evidence in a child
    protection matter is undoubtedly more flexible than in other types of cases
    where the
R. v. Palmer
, [1980] 1 S.C.R. 759 test requires the
    applicant to satisfy four criteria: (i) the evidence could not have been
    adduced at trial; (ii) the evidence must be relevant in that it bears on a
    decisive or potentially decisive issue; (iii) the evidence must be reasonably
    capable of belief; and (iv) the evidence must be such that, if believed, it
    could reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result.

[36]

When an appeal involves a child protection
    matter, a more flexible rule applies. In
Catholic Childrens Aid Society of
    Metropolitan Toronto v. M.(C.)
, [1994] 2 S.C.R. 165, at p. 188,
    LHeureux-Dubé J. invoked the child-centered focus of the
Act
to
    conclude that the admission of fresh evidence in child welfare matters requires
    a sufficiently flexible rule, where an accurate assessment of the present
    situation of the parties and the children, in particular, is of crucial
    importance. Likewise, this court has said that it is important to have the
    most current information possible when determining the childs best interests
    [g]iven the inevitable fluidity in a childs development:
Childrens Aid
    Society of Owen Sound v. R.D.
(2003), 44 R.F.L. (5th) 43, at para. 21, per
    Abella J.A.

[37]

Here, the fresh evidence did not provide an
    accurate assessment of the present situation because the parents had not seen
    the child since the trial. In any event, once the appeal judge found no error
    with respect to access, the fresh evidence was of marginal value. As this court
    stated in
CAS Waterloo v. V.L.
, 2007 ONCA 113, [2007] O.J. 613, at
    paras. 13 and 14:

The mother submitted additional fresh evidence on this appeal.
    She has turned her life around in commendable fashion. However, at this stage,
    such evidence cannot change the result reached by both lower courts.

. Time is an important consideration in the [
Act
] and
    a child is not to be kept in limbo while a parent having difficulties attempts
    to straighten out her life.

[38]

In addition, there was nothing in the fresh
    evidence about access that was not before the trial judge. For example, the
    appeal judge said that he relied heavily on the fresh evidence, especially that
    of Perrault who said:

[the child] would like to see her mother weekly but would
    want the visits supervised at the Childrens Aid Societys visiting centre.



[O]verall, [the child] was very clear that she wanted to be
    adopted by [the proposed adoptive mother].  She was equally clear that she
    misses her parents and would like to have some contact with them.

[39]

The same evidence was before the trial judge. It
    was not new. The appeal judge also exaggerated Perraults evidence by reframing
    the above extract. At para. 82 the appeal judge said: I have evidence that
    [the child]
desires, expects, hopes and prays
for contact with her (both)
    parents. [Emphasis added.]

[40]

The appeal judge appears to have ignored the
    fresh evidence that spoke against access. The childs therapist (Angela Harvey)
    and the adoption worker (Tecla Jenniskens) spoke of the negative effects that
    parental contact has had on the child. In their view, the negative effects
    would continue.

[41]

In short, the fresh evidence before the appeal
    judge of this childs best interests did not justify a change in the trial
    judges access order. The appeal judge also did not apply the mandatory
    requirements of the
Act.

The statutory requirements for access to a Crown ward

[42]

Until 2011, Crown wards with access were not
    eligible for adoption. In 2011, s.141.1 of the
Act
was amended to allow
    societies to place Crown wards with access for adoption. The legislation still
    establishes a high threshold for ordering access. Section 59(2.1) sets out a conjunctive
    test:

Access: Crown ward

(2.1) A court shall not make or vary an access order
    made under section 58 with respect to a Crown ward unless the court is
    satisfied that,

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

(b) the ordered
    access will not impair the childs future opportunities for adoption.

[43]

This section creates a presumption against
    access for a Crown ward. The onus is on the parents who seek access to present
    evidence that satisfies the test:
CAS Hamilton v. C.G.
, 2013 ONSC
    4972, [2013] O.J. No. 3520.

[44]

The mandatory requirements are clear. First, the
    relationship between the person and the child must be beneficial and meaningful
to the child
, as opposed to the person seeking access. Second, the
    access must not impair the childs opportunities for adoption. Courts have
    interpreted the words will not impair to require that access not diminish,
    reduce, jeopardize or interfere with the childs opportunities for adoption: See
    e.g.
Catholic Childrens Aid Society of Toronto v. M.M. and J.P.,
2012 ONCJ 369,

[2012] O.J. No.
    2717, at para. 180 and
CAS of Haldimand and Norfolk v. RD and SCM
,
    2011 ONSC 4857, [2011] O.J. No. 4082. The test for access clearly emphasizes
    the success of the adoption once the necessity of adoption has been established.

[45]

The appeal judge failed to identify how the
    parents had discharged their burden to show that access was meaningful and
    beneficial to the child. There was also uncontroverted evidence of the
    adoptive mother that she would not adopt if there was contact with the parents.
    This would make the access order statutorily impossible.

[46]

The appeal judge nonetheless ordered access. He
    erred in doing so.

[47]

I will return to the statutory requirements
    when, in connection with the childs Indigenous heritage, I explain how the
    appeal judge sought to further circumvent the operation of s. 59(2.1).

Childs Indigenous heritage

[48]

The parents submitted on the first appeal, and
    before this court, that  despite the requirements of s. 59(2.1)  a childs Indigenous
    heritage introduces different considerations into the access analysis. Indigenous
    children adopted by non-Indigenous families often experience challenges, risks,
    and vulnerabilities that other children adopted across cultural and racial
    boundaries do not. These challenges, risks, and vulnerabilities often lead to
    actual harm to the children throughout the course of their lives, and
    particularly as they enter adolescence.

[49]

The parents argue that if they do not have
    access to the child, she is likely to suffer from a lack of connection to her Indigenous
    culture, heritage and community. In their view, she risks losing a clear
    identity and sense of belonging.

[50]

The appeal judge accepted these submissions at
    para. 83:

[The childs] entitlement to explore her heritage and her
    culture (as guaranteed by the
Act
) has been overlooked/thwarted and
    frustrated by the ineptness of [trial counsel for the mother and the OCL].

[51]

On this basis, the appeal judge made his own
    finding that it was in the childs best interests to overturn the no access provision
    of the trial judge.

[52]

In coming to this conclusion, the appeal judge
    erred in two respects: (i) there was no evidence relating to
this child
to support his conclusion; and (ii) he misinterpreted the correlation between
    the childs best interests and the mandatory requirements of s. 59(2.1).

No evidence relating to this child

[53]

Courts recognize the pervasive effects of the historical
    and continuing harms to First Nations families. This does not, however,
    automatically exempt Indigenous children from the access provisions for Crown
    wards under the
Act
. The legislation makes clear that the
    circumstances of
each individual child
must be considered in their
    entire context.

[54]

A parallel can be drawn with the courts
    approach to the sentencing of Indigenous offenders.
In
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R.
    433, at para. 60, the Supreme Court describes the proper approach:

Courts have, at times, been hesitant to take judicial notice of
    the systemic and background factors affecting Aboriginal people in Canadian
    society. To be clear, courts must take judicial notice of such matters as the
    history of colonialism, displacement, and residential schools and how that
    history continues to translate into lower educational attainment, lower
    incomes, higher unemployment, higher rates of substance abuse and suicide, and
    of course higher levels of incarceration for Aboriginal peoples. These matters,
    on their own, do not necessarily justify a different sentence for Aboriginal
    offenders. Rather, they provide the necessary
context
for
    understanding and evaluating the
case-specific
information presented
    by counsel. [Emphasis in original, case reference omitted.]

[55]

While
Gladue
principles do not directly
    apply to access to a Crown ward, the Supreme Courts comments about
context
and the need for
case-specific
evidence are instructive:
see C
.M. v. Childrens Aid Society of the Regional Municipality of
    Waterloo
, 2015 ONCA 612
, [2015] O.J. No. 4705.

[56]

As Mackinnon J. said in
Childrens Aid
    Society of Ottawa v. K.F.
,
2015 ONSC 7580, 71 R.F.L. (7th) 110, at para. 65, a factual foundation that
    connects systemic factors to the particular child remains essential:

Taking judicial notice of these systemic and background factors
    would provide the necessary context for understanding why the provincial
    legislature has included the special additional purposes and provisions
    applicable to Indian and native children. It would not displace the need
    for a factual foundation

Similarly, in
Catholic Childrens
    Aid Society of Hamilton v. G.H
., 2017 ONSC 742, [2017] O.J. No. 1380, at
    paras. 42 and 44 Harper J. said:

I find that there is no evidentiary
    record in this case on the basis of which I can assess and balance the
    importance of the preservation of the Aboriginal heritage of the child when
    considering the other factors set out in the
CFSA.



[T]here is no evidence relating to the uniqueness of the
    childs particular Aboriginal culture, heritage or traditions for me to take
    into account.

[57]

The appeal judge made no mention that the
    parents or the child were in any way involved in an Indigenous community or its
    culture. There is no evidence that the parents had any connection to their
    culture; that the child was ever exposed to the Indigenous culture; or that
    anyone from the Indigenous community had ever been involved with the parents or
    the child. The statement of facts agreed to by the parents in May 2012 stated:
    the child is not an Indian or native person. Although at trial the mother
    said she had applied for status, the Indigenous heritage of the child was not
    raised until the appeal stage when the father declared that he was Cree and the
    mother was Mikmaq.

[58]

I recognize that Indigenous membership has
    expanded to include self-identification. However, there still must be evidence
    in relation to the child so a determination can be made as to whether access is
    beneficial and meaningful to her. The appeal judge erred by ordering access based
    on nothing but the parents self-identification with Indigenous heritage in the
    absence of any evidence on this issue specific to this child. He then again ignored
    the requirements of s. 59(2.1). I turn to that issue now.

Statutory Requirements

[59]

The appeal judge acknowledged that the proposed
    adoptive mother will not proceed with adopting the child if there is an order
    for access. On this basis, pursuant to s. 59(2.1) an access order was not
    possible. He resolved this impediment by declaring a conflict between s.
    59(2.1) and the best interests provisions of the
Act
(s. 37(3)).

[60]

Section 37(3) provides:

Best interests of child

(3) Where a person is directed in this Part to make
    an order or determination in the best interests of a child, the person shall
    take into consideration those of the following circumstances of the case that
    he or she considers relevant:

1. The childs physical, mental and emotional
    needs, and the appropriate care or treatment to meet those needs.

2. The childs physical, mental and emotional
    level of development.

3. The childs cultural background.

4. The religious faith, if any, in which the child
    is being raised.

5. The importance for the childs development of a
    positive relationship with a parent and a secure place as a member of a family.

6. The childs relationships and emotional ties to
    a parent, sibling, relative, other member of the childs extended family or
    member of the childs community.

7. The importance of continuity in the childs
    care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the childs care
    proposed by a society, including a proposal that the child be placed for
    adoption or adopted, compared with the merits of the child remaining with or
    returning to a parent.

9. The childs views and wishes, if they can be
    reasonably ascertained.

10. The effects on the child of delay in the
    disposition of the case.

11. The risk that the child may suffer harm
    through being removed from, kept away from, returned to or allowed to remain in
    the care of a parent.

12. The degree of risk, if any, that justified the
    finding that the child is in need of protection.

13. Any other
    relevant circumstance.  R.S.O. 1990, c. C.11, s.37 (3); 2006,
    c. 5, s. 6 (3); 2016, c. 23, s. 38 (18).

[61]

The appeal judge determined that the childs
    best interest was to have access and this - he concluded - superseded the
    requirements of s. 59(2.1). This determination was in error in two respects.
    First, as set out above, there was no factual foundation from which he could
    make the determination that it was in this childs best interests to have
    access to her parents because of their Indigenous heritage.

[62]

Second, t
here is no conflict between s.
    37(3) and s. 59(2.1).
The over-arching purpose of the
Act
is the childs best interests. This objective is inherent throughout the
Act.
Once it has been decided that the childs best interests require her to become
    a Crown ward, s. 59(2.1)
specifically provides the requirements for an
    access order.
While the goal of best interests is never abandoned, neither
    are the specific and mandatory requirements that must be established before an
    order for access can be made. These mandatory provisions are applied in the
    context of the childs best interests. But they are still mandatory.

The openness hearing

[63]

The appeal judge overturned the trial judges no
    access order, made an order for access and then stayed the enforcement of the
    order  except for one supervised visit  pending an openness hearing which he
    was going to conduct. The appeal judge had no jurisdiction to order the hearing
    or to seize himself of it.

[64]

By making the access order, to be followed by
    the openness hearing, the appeal judge ignored the mandatory process set out in
    s. 145.1.1 (3) of the
Act.
This process involves notices by the
    Society to all parties and timelines before the hearing.

[65]

Further, the appeal judge conflated access
    with openness. They are not the same. This was explained in detail by
    McDermot J. in
F. v. Simcoe Muskoka Child, Youth and Family Services,
2017 ONSC 5402, [2017] O.J. No. 4730, at paras. 31 and 34:

[T]he criteria for access for a Crown wardship order differ
    with the criteria for an openness order. That results from the fact that a
    request for adoption shifts the nature of the best interests of the child. 
    While a Crown wardship order is intended to provide for the protection of and
    permanency of the arrangements for the child for the foreseeable future,
    adoption is for the purpose of ensuring that the adoptive parents successfully
    become the childs new family.  Openness cannot be confused with access. [Case
    citations omitted.]

[66]

Simply put, when a Crown wardship order is
    granted with access, the parental relationship with the child is preserved.
    When a Crown ward is sought to be placed for adoption, the goal is permanency
    and the success of the adoption.

[67]

The appeal judge had no jurisdiction to seize
    himself of the hearing. Although he had been appointed to the Family Branch of
    the Superior Court, he was sitting in a non-Family Branch site and was acting
    in his appellate capacity as a Superior Court judge. The court with
    jurisdiction to conduct an openness hearing in Kitchener-Waterloo is not the
    Superior Court but the Ontario Court of Justice. For such a hearing, Court is
    defined in the
Act
as the Ontario Court of Justice or the Family
    Court of the Superior Court of Justice. There is no Family Court of the
    Superior Court of Justice in Kitchener. Thus, in Kitchener, only the Ontario
    Court of Justice has jurisdiction.

[68]

The appeal judge called the process of an access
    order followed by an openness hearing a pathway plan. He said it was
    consented to by all parties. It clearly was not. The Society and the OCL objected
    and referred to transcripts of the proceedings to demonstrate their opposition.
    Counsel for the Society repeatedly submitted that the requirements of s.
    59(2.1) must be met. In particular, he referred to the adoptive mothers
    evidence that she would not proceed with the adoption if the biological parents
    had access. In short, the so-called pathway plan was ill-conceived and neither
    statutorily or jurisdictionally possible.

Are the parents entitled to the declarations sought?

[69]

The parents cross-appeal for declarations that
    there has been a miscarriage of justice and that their s. 7
Charter
rights and the rights of the child have been violated.

[70]

They say the entire process was unfair and rely
    on the appeal judges comments including:

·

The
    passive acquiescence by the Society and the lawyers with respect to the
    validity of the Motherisk test results;

·

The
    delays in the case resulting in an entrenched status quo for the child;

·

The
    conduct of the trial judge; and

·

The disregard of the childs Indigenous heritage.

[71]

The appeal judge made extensive comments about
    miscarriages of justice but declined to address the parents
Charter
rights.

[72]

The parents factum makes it clear that they are
    not challenging the constitutionality of any provision of the legislation. They
    also seek no
Charter
remedy. Instead, they simply ask for a
    declaration of a
Charter
right violation. They also ask this court to
    declare that there has been a miscarriage of justice.

[73]

The remedy of a declaration is not available
    here.

[74]

A declaratory judgment is a formal statement by
    a court pronouncing upon the existence or non-existence of a legal state of
    affairs: Zamir & Woolf,
The Declaratory Judgment
, 3rd ed.
    (London: Sweet & Maxwell, 2002) at para. 1.02. The nature of the relief was
    articulated by the Supreme Court of Canada in
Solosky v. The Queen
,
    [1980] 1 S.C.R. 821. There, Dickson J. said at pp. 830-832:

Declaratory relief is a remedy neither constrained by form nor
    bounded by substantive content, which avails persons sharing a legal
    relationship, in respect of which a real issue concerning the relative
    interests of each has been raised and falls to be determined.

The principles that guide the court in exercising jurisdiction
    to grant declarations have been stated time and again.Lord Dunedin set out
    this test

The question must be a real and not a theoretical question,
    the person raising it must have a real interest to raise it; he must be able to
    secure a proper contradictor, that is to say, someone presently existing who
    has a true interest to oppose the declaration sought.

.Lord Denning described the declaration in these general terms

.. if a substantial question exists which one person has a
    real interest to raise, and the other to oppose, then the court has a
    discretion to resolve it by a declaration, which it will exercise if there is
    good reason for so doing.



As Hudson suggests in his article, "Declaratory Judgments
    in Theoretical Cases: The Reality of the Dispute" (1977), 3 Dal.L.J. 706:

The declaratory action is
    discretionary and the two factors which will influence the court in the
    exercise of its discretion are the utility of the remedy, if granted, and
    whether, if it is granted, it will settle the questions at issue between the
    parties.

[75]

The Supreme Court recently affirmed these
    principles stating [a] declaration can only be granted if it will have
    practical utility, that is, if it will settle a live controversy between the
    parties:
Daniels v. Canada (Indian Affairs and Northern Development)
,
    2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11.

[76]

I see no utility to the remedy sought by the
    parents. There is no issue; there are not two parties; there are no relative
    interests which fall to be determined; and nothing will be settled as a result.

[77]

I would decline to grant declaratory relief.

Asserted miscarriages of justice

[78]

While my decision not to grant the declarations
    sought would end the discussion as to miscarriage of justice, I must address
    two aspects of the appeal judges commentary in this regard. The first is the
    suggestion that the childs initial apprehension predetermined the result. The
    second is his attack on the conduct of the trial judge and  to a lesser extent
    - the OCL.

Initial apprehension

[79]

The apprehension of the child in September 2012
    followed the mothers positive drug test by Motherisk. The Motherisk test
    results have been the subject of criticism and have been seriously challenged.
    The parents argue that the justice systems passive acquiescence to the test
    results led to a miscarriage of justice because the child should not have been
    apprehended in the first place. This submission ignores two important facts.
    The first is that the trial judge, aware of the potential problems with this evidence,
    explicitly ignored the Motherisk test results and placed no weight on them. The
    second is that the evidence of the parents conduct
apart from the test
    results
supported the trial judges findings. The trial judge set out the
    basis for the childs lack of care and need for protection, including, her need
    for extensive dental work, the dangerous environments into which the mother
    introduced her child, the parents inappropriate conduct during access visits,
    and the mothers failure to address her own behavioral issues or to acknowledge
    or prioritize the needs of her child.

[80]

I turn to the conduct of the trial judge.

Judicial conduct of the trial

[81]

The appeal judge was harsh in his criticism of
    the trial judge. At para. 67:

Both parents counsel cite various examples of
    inappropriate judicial conduct and bias throughout the 14 day trial and the
    mid-trial off-the-record conference (that so shocked one experienced trial
    counsel that she was rendered mute!) of the trial judge trying to assert
    control over Ms. Gratl, as well as occasions of unsolicited, casual,
    threatening or sarcastic comments to those present, including counsel and the
    parents.  See paras. 17-20, inclusive, of Mothers factum. The not so
    subtle messages for the trial judge cited at paras. 19 & 20 of the Mothers
    factum, I believe, would convince any litigant (or any observer of the whole
    trial) that the trial judge was:

(a)   antagonized by Mothers counsel;

(b)   angry at how long the trial was taking;

(c)   suggesting both directly and indirectly that someone might have
    to pay costs if things didnt change;

(d)   was disbelieving of much of what the Mother and Father had to
    offer (didnt use cocaine/was indigenous hearsay!);

(e)   had already decided the outcome of the trial they should be
    grateful , its a waste of our time   what cloud are you living
    on?, telling Mothers counsel to just sit down; and

(f)    as
    Mothers present counsel argued, it was not just the trial judges words but
    the tone of those words and her demeanor that caused the parents to despair and
    conclude that trial fairness was not occurring

[82]

He then concluded at para. 69:

Whether the test of trial fairness is an objective one or a
    subjective one, on the evidence before me, I find that the trial process was
    unfair, unjust and skewed against the parents. The integrity of the
    administration of justice was compromised by this trial and brought into
    disrepute. Both parents had good reason to have formed a reasonable
    apprehension of bias. They realized that they didnt have a fair hearing of the
    issues.

[83]

Having found that the Crown wardship order was
    correct and that the trial judge made no error with respect to access, these
    remarks are both
obiter
and wrong in law.

[84]

There is a strong presumption of judicial
    impartiality and a heavy burden on a party who seeks to rebut this presumption.
    In order to rebut the presumption of impartiality, a test has been developed by
    the Supreme Court of Canada. It was first articulated by de Grandpré J. in his
    dissenting reasons in
Committee for Justice and Liberty v. National Energy
    Board
, [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one held by
    reasonable and right-minded persons, applying themselves to the question and
    obtaining thereon the required information.  [T]hat test is "what would
    an informed person, viewing the matter realistically and practically  and
    having thought the matter through  conclude. Would he think that it is more likely
    than not that [the judge], whether consciously or unconsciously, would not
    decide fairly."

[85]

The Supreme Court has repeatedly endorsed this
    test. In his reasons in
R. v. S. (R. D.)
, [1997] 3 S.C.R. 484,
    Cory J. explained, at para. 111, that the test set down by de Grandpré J.
    contains a two-fold objective element: not only must the person considering
    the alleged bias be reasonable, but the apprehension of bias itself must also be
    reasonable in the circumstances of the case. Justice Cory added, at para. 113,
    that:

[T]he threshold for a finding of real or perceived bias is
    high. It is a finding that must be carefully considered since it calls into
    question an element of judicial integrity. Indeed an allegation of reasonable
    apprehension of bias calls into question not simply the personal integrity of
    the judge, but the integrity of the entire administration of justice.

[86]

This two-fold objective element is based on
    reasonableness: the person considering the alleged bias must be reasonable and
    the apprehension of bias itself must also be reasonable. The reasonable person
    must be informed and know the relevant circumstances, including the traditions
    of integrity and impartiality on which the judicial system is based. A mere
    suspicion is not enough.

[87]

This stringent test for a party alleging
    apprehension of bias is grounded in the need to preserve the integrity of the
    judicial system. It also recognizes the need to maintain the public confidence
    in the judicial system. The analysis contemplates a hypothetical observer who
    is informed of all the facts
. It does not depend upon the views or
    conclusions of the litigant
.

[88]

The appeal judge did not apply the law on apprehension
    of bias. He referred only to the impressions of counsel and the parents, not to
    the objective observer informed of all the facts. Nor did he articulate exactly
    what conduct by the trial judge created the apprehension bias. These are
    essential components of a courts determination when  as here  the
    impartiality of a judicial officer is under review. Instead he accepted appeal counsels
    submissions about the trial judges tone when that counsel was not present
    during the trial, looked at comments by the trial judge in the absence of
    context, and appears to have simply accepted the submissions in counsels
    factum.

[89]

The appeal judge also criticized the OCL for a
    cavalier and inadequate approach at trial. He referred to her submissions
    from the counsel table. Counsel are entitled to make submissions. The
    submissions by the OCL were supported by the evidence. No counsel present
    objected. I see nothing in the submissions to substantiate the appeal judges
    assessment.

Did the appeal judge err in finding ineffective assistance of counsel and
    ordering costs against her?

[90]

The parents raised ineffective assistance of
    counsel at trial as a ground of appeal.

[91]

In his oral ruling of February 9, 2017, the
    appeal judge made findings of incompetence, inadequacy and ineffectiveness
    against the mothers counsel Brigitte Gratl. He cited complaints by the parents
    that she was treating the client with disdain, being confrontative with the
    trial judge, was unwilling to explain, and did not have proper theory
    development. He found that trial counsel had breached the Law Society of Upper
    Canadas
Rules of Professional Conduct
and the Advocates Societys
Principles
    of Civility
.

[92]

The appeal judge referred to uncontroverted
    evidence to come to the conclusions about counsel. But Gratl was not present
    at the appeal and filed no evidence.
[1]


[93]

Gratl moved to set aside these findings. A
    five-day hearing resulted. On May 30, 2017 the appeal judge varied his decision.
    I quote his reasons at para 53:

Having conceded that the incompetent counsel finding should
    be set aside for the reasons set out earlier, I have concluded that even though
    I cannot find that Mr. Gratls (
sic)
level of advocacy preceding and
    during the trial itself (including the period after March 17, 2015 until
    December 15, 2015) was of such a scandalous quality as to
solely
cause a miscarriage of justice, Ms. Gratls
    continuing involvement as [mothers] counsel after December 15, 2015 until June
    23, 2016
did indeed
cause a miscarriage of justice
    and undermined any appearance of fairness or of justice. Had Ms. Gratl been
    attentive to her then-clients interests, there is no doubt in my mind that a
    motion for access pending appeal would have succeeded and the parent-child
    relationship would have been continued (such as it had pre-December 15, 2015).
    It is solely and directly a result of Ms. Gratl that the relationship may never
    be successfully re-established. [Emphasis in original.]

[94]

There are several errors in this conclusion.

[95]

First, having found no error on the part of the
    trial judge, the issue of ineffective assistance was moot. Ineffective
    assistance of counsel as a ground of appeal has a very narrow application. It
    is a ground of appeal. It is not a springboard from which an appellate court
    engages in a retrospective analysis of every aspect of a lawyers conduct. The
    far-reaching analysis in which the appeal judge engaged is more properly done
    in the context of a civil negligence action, with all of its procedural
    safeguards, or a disciplinary investigation by the Law Society of Upper Canada.

[96]

Since the trial judge did not err, there
    was no ground of appeal left to explore. There was no prejudice to the parents
    and thus no miscarriage of justice. In
R. v. B. (G.D.)
, 2000 SCC 22, [2000] 1 S.C.R. 520,

at
para. 29:

In those cases where it is apparent that no prejudice has
    occurred, it will usually be undesirable for appellate courts to consider the
    performance component of the analysis. The object of an ineffectiveness claim
    is not to grade counsels performance or professional conduct. The letter is
    left to the professionals self-governing body.

[97]

Second, it was not open to the appeal judge to
    consider counsels failure to apply for an access order after the trial
    judgment. The issue before him was the no access order at trial. In any event,
    I do not share the appeal judges view that the motion would have succeeded
    in the face of the reasons of the trial judge, and the opposition of the
    Society and the OCL.

[98]

The appeal judges order on the issue of costs
    owed by the counsel derived from his conclusion as to competence. Accordingly,
    it should also be reversed.

[99]

In the result, I would allow the counsels
    appeal on the finding of ineffective assistance and on the order of costs
    against her.

[100]

Legal Aid Ontario was granted intervener status. It submits that, if
    the costs order is allowed by this court, the costs should be paid directly to
    LAO in accordance with s.46 of the
Legal Aid Services Act
. As a result
    of my conclusion it is unnecessary to address this issue.

DISPOSITION

[101]

I would allow the Societys appeal and restore the trial judges
    order of no access; dismiss the parents cross-appeal; and allow the
    cross-appeal of Brigitte Gratl on ineffective assistance and the consequent
    costs order.

[102]

No party sought costs of this appeal. I would therefore make no
    order as to costs.

M.L. Benotto J.A.

I agree J. MacFarland
    J.A.

I agree David Watt
    J.A.

Released: December 01, 2017





[1]
In his later ruling the appeal judge stated that Gratl should have known that
    her conduct would be in issue during the appeal.  In the light of my
    conclusions, nothing turns on this.


