



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: Windsor-Essex Children's Aid Society v. R.H.C.,
    2016 ONCA 595

DATE:

20160729

DOCKET: C61792

Hoy A.C.J.O., Brown and Huscroft JJ.A.

BETWEEN

Windsor-Essex Childrens Aid Society

Applicant (Respondent)

and

R.H.C.

Respondent (Appellant)

R.H.C., acting in person

Michelle Meighoo, duty counsel on behalf of the
    appellant

Frank Philcox, for the Windsor-Essex Childrens Aid
    Society

Annemarie Carere, for the Office of the Childrens
    Lawyer

David B. Williams, for the intervener Christina Sweet

Heard: July 20, 2016

On appeal from the judgment of Justice
J.
    Paul R. Howard
of the Superior Court of Justice dated January 6, 2016.

ENDORSEMENT

OVERVIEW

[1]

The appellant is the mother of two young girls
    who are nine and twelve years old. Both girls were apprehended by the Windsor-Essex
    Childrens Aid Society (the Society) on May 16, 2012. The appellant has not
    had access to her children since October 22, 2014. The Society brought a
    summary judgment motion seeking a Crown wardship order with no access for the
    mother, which was granted by the motion judge on December 23, 2014. The
    appellant appealed to the Superior Court of Justice and, on the appeal, alleged
    ineffective assistance from counsel on the summary judgment motion. The
    Superior Court appeal judge dismissed the appeal. The appellant appeals from
    that order.

[2]

On this appeal, duty counsel assisted the
    appellant by making submissions on some, but not all, of the issues. The
    appellant made submissions on the remaining issues. The court appreciates the
    assistance given by duty counsel.

STANDARD OF REVIEW

[3]

Two principles must animate the appellate review
    in this matter. First, the best interests of the children are the paramount
    concern in child protection proceedings:
Childrens Aid Society of
    Toronto v. V. L.
, 2012 ONCA 890, 249 O.A.C. 388. at para.
    15.

[4]

Second, the appeal judge performed two tasks: he
    heard the appeal from the judgment of the motion judge, and he considered, in
    the first instance, the appellants submission that she received ineffective
    assistance from counsel on the motion. In respect of the appeal decision, this
    court should only intervene if the appeal judge erred in principle by failing
    to identify a material error in the decision made by the motion judge:
V.
    L.
, at para. 17. In respect of the ineffective assistance
    of counsel issue, the standard of review is that established by
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235.

FIRST ISSUE: INEFFECTIVE ASSISTANCE
    OF COUNSEL

[5]

Before the Superior Court, the appellant alleged
    her counsel on the motion failed to provide effective assistance. The appeal
    judge dealt with the allegation in accordance with the Superior Court of
    Justice Protocol  Allegations of Incompetence. The appeal judge correctly
    identified the test for establishing ineffective assistance of counsel in the
    child protection context as that set out by the Divisional Court in
K.R.
    v. CAS
, 2015 ONSC 3769, [2015] O.J. No. 2850, at paras.
    7-8, which, in turn, draws on the principles articulated by this court in
R.
    v. Archer
(2005)
, 202 C.C.C. (3d) 60, 203 O.A.C. 56 (C.A.), at paras. 119-120.

[6]

In his reasons, the appeal judge extensively
    reviewed and considered the chronology of the litigation and the specific
    allegations of ineffective assistance advanced by the appellant. He made
    several key findings of fact: (i) the appellant instructed motion counsel to
    present the kinship plan involving the appellants uncle and aunt in Michigan;
    (ii) motion counsel complied with those instructions; (iii) the appellant
    adduced no evidence that motion counsel fell below the standard of competence
    required of counsel in similar circumstances; and (iv) there was no reasonable
    or realistic possibility that had counsel done something differently, the
    result might have been different. He found motion counsel performed
    competently in the context of the proceedings before Tobin J. given the scope
    of her retainer: para. 171. He dismissed the ground of appeal based on
    ineffective assistance of counsel.

[7]

The appellant was not able to demonstrate any
    error in the appeal judges understanding of the evidence, findings of fact, or
    analysis that would justify interfering with his conclusion. We do not give
    effect to this ground of appeal.

SECOND ISSUE: CROWN WARDSHIP ORDER

Fresh evidence

[8]

The appellant moves for the admission of fresh
    evidence on the appeal. The fresh evidence consists of documents from the CAS
    files and Family Visitation Program Case Notes.  All the documents were created
    before, and concerned events which occurred prior to, the hearing of the
    summary judgment motion. The appellant obtained the documents as part of
    disclosure made by the Society. The appellant did not file an affidavit indicating
    when she came into possession of the fresh evidence. However, it appears the
    documents were in her possession before the appeal in the Superior Court, but
    the appellant had not reviewed all of them before the appeal hearing. The
    appellants notice of motion states the documents are relevant to the motion
    judges findings concerning the childrens fear of their mother and the emotional
    impact on them of access by the appellant.

[9]

In
Catholic Childrens Aid Society
    of Metropolitan Toronto v. M. (C.)
, [1994] 2 S.C.R. 165, the
    Supreme Court of Canada stated, at pp.185-190, that in child protection cases
    the consideration of a request to file fresh evidence requires a sufficiently
    flexible rule, where an accurate assessment of the present situation of the
    parties, and the child in particular, is of crucial importance: at p. 188. Nevertheless,
    an appeal is not a new hearing on the merits, especially where, as here, the
    appeal is taken from an intermediate appellate decision.

[10]

Most of the fresh evidence the appellant seeks
    leave to file on this appeal was appended to her September 11, 2015 affidavit
    filed before the appeal judge on a motion for leave to file fresh evidence.

[11]

The appeal judge dealt with the appellants
    fresh evidence at considerable length: at paras. 237 to 260. He concluded that
    by filing the fresh evidence, the appellant, in effect, was seeking a fresh
    hearing of the entire history of the care of the children from their date of
    apprehension until the summary judgment motion: at para. 245. In the result,
    the appeal judge admitted the evidence, but declined to give effect to it because:
    it was designed to support the appellants new plan for the children to be
    returned to her; more than three and half years had passed since the children
    were apprehended and placed in foster care; and it could not be assumed that
    placing the children in one of the settings proposed by the appellant  their
    return to the appellant or placement into the care of the appellants friend,
    Ms. Reimer  would be successful.

[12]

Before us, the appellant seeks to re-file
    essentially the same evidence considered by the appeal judge and asks us to
    consider and weigh the evidence afresh. That is not a proper function of this
    court. An appeal to this court does not involve a fresh hearing on the evidence
    but, instead, a review of the decisions made by the judges below to ascertain
    whether they made a material error that affected the outcome of those hearings.
    We see no error in the appeal judges determination of the admissibility and
    use of the fresh evidence filed by the appellant. Accordingly,
we
deny the appellant leave to file her fresh evidence.

The review of the motion judges
    order

[13]

Before the appeal judge, the appellant made
    several arguments: (i) if the motion judge had exercised his fact finding
    powers by sifting through the entire cumulative record, he would not have found
    in favour of the Society; (ii) the motion judge erred by relying on affidavits
    that were replete with hearsay evidence; (iii) the motion judge did not
    consider the least disruptive course of action available; (iv) the motion judge
    erred in failing to grant the appellant access to her children; and (v) the
    motion judge erred by allowing the Society to file evidence after the motion
    hearing to provide the biographical information about the children required by s.
    47(2) of the
Child and Family Services Act
,
    R.S.O. 1990, c. C.11 (
CFSA
).

[14]

The appellant repeats those arguments before
    this court. In addition, duty counsel submits the motion judge erred in (i)
    failing to take into account, as part of his best interests of the child
    analysis, the cultural and religious backgrounds of the children and (ii)
    failing to consider reports of assessments of both children conducted and
    produced by Dr. Hallam-Helbich pursuant to s. 54 of the
CFSA
in October and November, 2012.

[15]

In his thorough reasons, the appeal judge
    identified the correct standard of review: at para. 175. The appeal judge
    considered and addressed each ground of appeal advanced by the appellant before
    him. He concluded that:

(i)       the
    motion judge undertook a considered and thoughtful analysis of the hearsay
    evidence before the court The motion judge made no error in his treatment of
    the evidence or his finding on this point (para. 179);

(ii)      the
    motion judge correctly applied the law, carefully considered the entire
    evidentiary record before him, and correctly found there were no material facts
    or issues in dispute that created a genuine issue for trial. He correctly
    determined that there was no possibility of an outcome other than that sought
    by the Society (para. 193);

(iii)     the
    granting of leave to the Society to file further evidence as to the statutory
    findings caused no prejudice to the appellant. Any claims to the contrary are
    specious (para. 197);

(iv)     there
    was sufficient evidence before the motion judge to ground his ruling that
    access by the appellant to the children had caused the children emotional harm (para.
    203); and

(v)      even
    if he admitted the appellants fresh evidence, it would not alter his decision
    that the motion judge did not err in finding there was no genuine issue for
    trial in respect of either the finding that the children are in need of
    protection or the disposition (para. 239).

[16]

The appellant has not demonstrated the appeal
    judge erred in principle by failing to identify a material error in the motion
    judges decision. The reasons of the appeal judge thoroughly and carefully
    reviewed the decision below and the evidence.

[17]

The motion judge gave extensive reasons for his
    decision. The motion judge specifically took into account the childrens
    cultural background, finding that aspect of the childrens best interests would
    be better met by the appellants plan to place the children with her relatives:
    at para. 63. However, the motion judge concluded that taking into account all the
    other factors identified in s. 37(3) of the
CFSA
, the Societys plan would better meet the needs of the children.

[18]

The motion judge did not ignore the assessments
    conducted by Dr. Hallam-Helbich: at para. 7. However, those assessments were
    conducted two years before the summary judgment motion was heard, and the
    motion judge had before him more current evidence about the interaction between
    the appellant and her two children.

[19]

Consequently, we see no basis upon which to
    interfere with the decisions below.

DISPOSITION

[20]

For the reasons set out above, we dismiss the
    appellants motion for leave to file fresh evidence and we dismiss her appeal.

Alexandra Hoy A.C.J.O.

David Brown J.A.

Grant Huscroft J.A.


