



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: Peel Children's Aid Society v. M.H., 2018 ONCA 619

DATE: 20180709

DOCKET: C65209

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Childrens
    Aid Society of the Region of Peel

Applicant (Respondent)

and

M.H. and
S.H.

Respondents (
Appellant
)

and

M.O.

Respondent (Respondent)

O. Benjamin Vincents, for the appellant, S.H.

Laura Shaw and Amanda Rozario, for the respondent,
    C.A.S.

James Cook and Chris Junior, for the respondent, M.O.

Heard: July 3, 2018

On appeal from the order of Justice Lucy K. McSweeney of
    the Superior Court of Justice, dated March 7, 2018, with reasons reported at
    2018 ONSC 1589, affirming the order of Justice Joseph W. Bovard
of the Ontario Court of Justice, dated December 31, 2015, with
    reasons reported at 2015 ONCJ 756.

REASONS FOR
    DECISION

[1]

This is an appeal from the
    order of McSweeney J. of the Superior Court of Justice, dated March 7, 2018, in
    which she dismissed an appeal from the order of Bovard J. of the Ontario Court
    of Justice, dated December 31, 2015. The latter order made the children of M.H.
    and S.H., namely Am and Az, Crown wards, without access.

[2]

The childrens father, S.H., appeals
    the decision of the appellate judge on numerous grounds.
[1]
One of those grounds is
    ineffective assistance of trial counsel, M.O. For the reasons that follow, the
    appeal is dismissed.

Background Facts

[3]

The two sisters who are the
    subject of this appeal, Am and Az, are now 13 and 4. On February 25, 2011, when
    Am was 6 and before Azs birth, a third daughter of M.H. and S.H., M, died. M
    was 27 months at the time, and died while in her parents care from
    complications arising from Vitamin D deficiency/rickets and asthma. An autopsy
    revealed that the complications were likely due to malnutrition.

[4]


On March 3, 2011, Am was
    medically assessed and it was determined that she had severely low levels of
    Vitamin D and B12. The doctor assessing Am advised S.H. that dietary
    supplementation was necessary. On April 13, 2011, after S.H. admitted that Am
    had not been given the recommended vitamins, the Peel Childrens Aid Society
    (the Society) commenced a child protection application.
Am was
    placed in foster care.

[5]

In September 2011, the appellants were arrested and criminally charged
    as a consequence of Ms death. They were held in custody for three months.

[6]

In 2012, the Society worked with M.H. and S.H.to establish a plan for Ams
    return to their care. The Society deemed the plan unsuccessful in January 2013,
    due to the unwillingness of Ams parents to cooperate with Society
    representatives.

[7]

Am was found to be in need of protection on April 17, 2013, pursuant to
    the

Child and Family Services Act
,
R.S.O. 1990, c. C.11 (the 
CFSA
).
[2]
Her parents had overnight access with her until she was made a Crown ward
    without access.

[8]

M.H. gave birth to Az on October 20, 2013. Az was apprehended at birth
    and placed in foster care. Her parents had supervised access to her until she too
    was made a Crown ward without access.

[9]

Both Am and Az have had several foster placements since they were
    apprehended. They have been in the care of a paternal cousin, D.H., since June
    30, 2015. The Societys current plan is to have D.H. permanently adopt both Am
    and Az, with no access to the parents.

The Trial

[10]

The trial in the Ontario Court of Justice
    took place over 12 days between May and December 2014. The Society sought Crown
    wardship with no access, with a view to adoption. The parents, who did not
    testify, sought an order for the return of the children, with or without
    supervision.

[11]

The
    parents were convicted of manslaughter in October 2014. S.H. was sentenced to
    two years less a day and M.H. was sentenced to two years to permit her to serve
    her sentence in a federal facility. On May 27, 2015, the trial judge re-opened
    the child protection trial to introduce evidence of the convictions and
    sentences. He declined to admit the reasons for sentence.

[12]

S.H.
    and M.H. have appealed their criminal convictions to this court. Those appeals
    remain outstanding.

[13]

The
    trial judge found that Az was a child in need of protection under the
CFSA
.
    He based that decision on the parents failure to make alternative arrangements
    for the care of their children while incarcerated. In addition, based on the
    evidence of past parenting, he found that Az was likely to suffer physical harm
    if placed in her parents care.

[14]

The
    trial judge
made both children Crown
    wards without access. In support of that order, he undertook a detailed
    analysis as required by ss. 56 and 57 of the
CFSA
. As part of that analysis, he noted that
    the children would not be adequately protected if returned to their parents
    care due to their parents lack of cooperation with the Society. In addition,
    he found that there is no alternative that would be less disruptive to the
    children and that would be in their best interests.

First Appeal

[15]

On appeal to the Superior Court of Justice,
    S.H. and M.H. asserted multiple grounds of appeal. They argued that the trial
    judge was biased, and that he erred in his admission and use of various pieces
    of evidence, in failing to admit the reasons for sentence from their criminal
    trial and a late-filed expert report, in finding that there was no appropriate
    kin placement for a supervision order, in failing to consider Ams preferences,
    and in his use of past parenting evidence. They also asserted ineffective
    assistance of counsel at the trial, and the protocol of the court was followed
    to develop a record as the basis for the appeal judge to consider and decide
    the ineffective assistance of counsel issue.

[16]

The
appellate judge considered and rejected the
    appellants grounds of appeal. She found that the trial judges analysis was
    not tainted by any legal or factual errors.

She
    dismissed the ineffective assistance of counsel ground of appeal.
The appellate judge also considered the
    fresh evidence filed by the appellants and determined that it would not have affected
    the result.

Issues on This Appeal

[17]

Before this court, the appellant father argues
    that: (i) the appellate judge erred in upholding the decision that Az was in
    need of protection and in finding that both children should be made Crown wards;
    (ii) the Society obtained the Crown wardship order by abuse of process; (iii) the
    appeal judge erred in failing to find that the ineffective assistance of
    counsel did not allow for a fair trial; and (iv) the appellate judge did not
    properly review the fresh evidence. He also seeks to admit further fresh
    evidence on this appeal.

[18]

We do not give effect to any of these
    grounds of appeal.

Analysis

(i)

Need of Protection and Crown Wards

[19]

In our view, given the death of M while in her
    parents care, the previous finding that Am was in need of protection, and the
    appellants demonstrated inability to cooperate with the Society, there was
    ample evidence to support the finding made by the trial judge and affirmed by
    the appellate judge that Az was in need of protection.

[20]

With respect to the order for Crown
    wardship, the trial judge gave detailed reasons in support of his finding that
    the test for such an order had been met. The reasons included an assessment of
    the childrens physical, mental, and emotional needs, level of development,
    emotional ties to their parents, the merits of the plan put forward by the
    Society versus the parents plan, as well as the degree of risk that justified
    the finding that the children were in need of protection. The appellate judge
    made no error in declining to interfere with that finding.

[21]

The appellant submits that there was no
    evidence to support a conclusion that the parents were not prepared to work
    with the Society to ensure that their children received proper nutrition to
    keep them healthy and safe from harm. We disagree.

[22]

The trial judge noted that in none of the
    plans put forward by the parents for their childrens care was there any
    acknowledgment that they needed assistance in providing for the dietary needs
    of their children, nor was there any plan to improve their competence in this
    area. Instead, he found that they would take advice about nutrition only to the
    extent that it did not impede their criminal defence or conflict with their
    faith. The trial judge concluded, quite rightly in our view, that the parents
    were unwilling to put the childrens well-being first. It was also clear on the
    record that they continued to believe that they fed their children sufficiently
    to prevent malnutrition and vitamin deficiency, despite all of the evidence to
    the contrary.

(ii)

Abuse of Process

[23]

The argument advanced on this ground of
    appeal is that while the Society knew that the father had presented D.H. as
    someone who could care for the children, it proceeded to adduce evidence and
    argue before the appellate judge that the parents did not make plans for their children.
    Further, the appellant alleges that the Society hid from the appellate judge
    the fact that the father had given D.H.s contact information to the Society
    and that that amounted to presenting a plan. The result, he says, is that the
    Society ensured that what was to be a kin placement by either a supervision
    order or a custody order pursuant to s. 57.1 of the
CFSA
became a Crown wardship.

[24]

This is a serious allegation of malfeasance
    by the Society and its counsel. We see the allegation as entirely meritless.

[25]

The
    Society workers repeatedly asked the parents for names of family members who
    could potentially care for the children. D.H.s name was mentioned in 2012
    along with other family members. None of the family members presented a plan of
    care for Am at that time. The Societys position is that it does not, and has
    never, considered providing a name and phone number as equivalent to providing
    a plan of care. We reject the appellants submission that by providing phone
    numbers for various relatives he was presenting a plan of care.

[26]

It
    was not until after the trial, but before the release of the trial judges decision,
    that D.H. contacted the Society and had concrete discussions about a potential
    plan for her as a caregiver. By that time the children had been in the interim care
    of the Society beyond the statutory time limit, so the Societys focus was to identify
    a permanent placement. As the appellate judge noted, 
A further
    kin placement under supervision of the Society, whether with D.H. or someone
    else, would not have advanced this goal.


[27]

At
    the time of the first appeal, D.H. had a strained relationship with the parents.
    She advised the Society that she would not supervise access visits if so
    ordered by the court.

[28]

We note as well that all parties knew that
    the children had been placed under D.H.s care by the end of June 2015. That was
    over a year-and-a-half before the first appeal hearing began.

(iii)

Ineffective Assistance of Counsel

[29]

On the first appeal, the parents alleged that their trial
    counsels representation was ineffective and rendered the trial verdict
    unreliable. The appellate judge first reviewed the applicable case law,
    including
Childrens Aid Society of the Regional Municipality of Waterloo
    v. C.T.
, 2017 ONCA 931, 286 A.C.W.S. (3d) 285, on the issue of whether this
    ground of appeal was moot. The appellate judge found that there was no error by
    the trial judge and thus she found that the issue of ineffective assistance of
    counsel was moot.


[30]

On appeal to this court, S.H. submits that
    the appellate judge misapplied the
Waterloo
decision. He argues that in that case, this court was
    simply applying the well-established principle that where a client has suffered
    no prejudice as a consequence of his or her counsels performance, there is no
    need to examine the performance to determine whether it was ineffective. In the
    present case, he submits that there was potential prejudice caused by, for
    example, counsel dissuading the parents from testifying.

[31]

We accept this submission. The fact that the
    trial judge did not err does not end the analysis of counsels performance if
    there is potential prejudice. The appellate judge erred in equating the absence
    of an error by the trial judge with an absence of prejudice. However, the
    appellate judge went on to conduct an analysis of the allegations of
    ineffective assistance of counsel, in the event that she erred in her
    conclusion of mootness. As part of that analysis, she considered the evidence tendered
    by the appellants and their trial counsel. She found no merit in any of the ineffective
    assistance of counsel allegations.

[32]

We
    see no basis to interfere with the appellate judges findings on ineffective
    assistance of counsel. She carefully considered each allegation and the
    evidence applicable to each claim. The analysis was exemplary and reveals no
    legal or factual errors.

[33]

On
    the appeal before us, counsel for the appellant placed particular emphasis on
    the allegation that trial counsel dissuaded him and his wife from testifying
    and failed to advise that their testimony would not impact their defence in the
    criminal proceeding. The appellate judge indicated that she could not find on a
    balance of probabilities that the appellants wished to testify. She further noted
    that S.H. confirmed in cross-examination on this point that his testimony would
    have reflected the contents of an affidavit he swore in November 2013. Having
    reviewed that affidavit, she found that had S.H. testified, his evidence would
    not have affected the result. There is no basis for this court to interfere
    with those factual findings.

[34]

We
    would not give effect to this ground of appeal.

(iv)

Fresh Evidence Below

[35]

On
    the first appeal, the parents sought leave to file fresh evidence
including: affidavits from each of them
    and from the Society, the sentencing reasons, medical records, and supplementary
    appeal records.

[36]

The appellate judge held that a majority
    of the fresh evidence re-states or confirms the parents views as expressed to
    the Society and referred [to] elsewhere in the trial evidence. She further
    found that the only evidence that updated the court about the children was in
    an affidavit sworn by D.H. That affidavit confirmed the appropriateness of the
    trial judges decision.

[37]

Given these findings, the appellate judge
    concluded, none of the fresh evidence could reasonably, when considered with
    the evidence adduced at trial, have affected the result.

[38]

We
    agree with the Societys submission that S.H.s affidavit confirmed his
    inability to cooperate with the Society, and his beliefs that M was properly
    fed, that he is a victim of a conspiracy, and that it is the Society that
    should be charged with failing to provide the necessities of life. This
    evidence supports the trial judges findings.

[39]

The
    filing of fresh evidence is not an opportunity to reargue a case
de novo
,
    making the same arguments based on slightly different material. While courts in
    child protection cases are generally more liberal in granting leave to file
    fresh evidence, in this case, where no new material information was tendered,
    the appellate judge made no error in finding that it would not have affected the
    result and in exercising her discretion to not admit the evidence.

(v)

Further Fresh Evidence

[40]

The appellant seeks leave to file further fresh
    evidence on this appeal, contained in an affidavit sworn in May of this year.
    The Society has filed a responding affidavit. Similar to the conclusion reached
    by the appellate judge, we are not satisfied that this new evidence would have
    affected the result in this case and decline to admit it.

[41]

The appellants evidence is filed for two
    purposes. First, it is tendered to show that the parents had made arrangements for
    D.H. to care for the children when they were incarcerated. However, as stated
    above, no plan for D.H. to care for the children was presented prior to trial
    and the availability of D.H. was known to all of the parties well in advance of
    the appeal. This is not new information and we are not satisfied that it would
    make any difference to the outcome of the trial, the first appeal, or this
    appeal.

[42]

Second, the new evidence is filed to show
    that the parents youngest child is in their care. Although the Society has
    continuing concerns about the parents parenting ability, and is monitoring the
    situation closely, they have not taken steps to remove the child. The appellant
    submits that this establishes that there are no safety concerns relating to his
    and his wifes parenting and that Am and Az should be returned to their care.

[43]

We commend the efforts made by the
    appellant and his wife to properly care for their youngest child. However, we do
    not see this fresh evidence as establishing the absence of any continuing
    safety concerns for Am and Az. Most importantly, the focus must be on what is now
    in the best interests of Am and Az, the children that are the subject of these
    proceedings. Based on the fresh evidence filed by the Society, both children
    are thriving in their current environment. Am is going into grade eight in
    September. She attends public school and is active in sports and music. She has
    not seen her parents in several years. Az will be attending senior kindergarten
    next year and is progressing well in her early education. She has never known
    her parents. The Societys plan is for D.H. to permanently adopt the children. They
    are doing well with her now, and there is every reason to expect that they will
    continue to do so.

[44]


In these circumstances, we are not
    satisfied that the fresh evidence changes anything. It is not in the best
    interests of Am and Az to alter their current living situation.

Disposition

[45]

The
    appeal is dismissed. The parties agreed that there should be no order for the
    costs of the appeal.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A





[1]

The mothers appeal, which asserted overlapping grounds of
    appeal, was dismissed when the mother failed to meet the deadline to perfect
    her appeal.



[2]

O. Reg. 157/18: Transitional Matters under the new
Child,
    Youth and Family Services Act, 2017
, S.O. 2017, c. 14, Sched. 1, provides
    at s. 11(1) that, A proceeding commenced under Part III of the old Act but not
    concluded before the day this section comes into force is continued as a
    proceeding commended under Part V of the Act.


