



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.






CITATION:
L.H. v. Catholic
          Children's Aid Society of Toronto, 2011 ONCA 385



DATE: 20110518



DOCKET: C52682



COURT OF APPEAL FOR ONTARIO



Armstrong, Juriansz and Watt JJ.A.



BETWEEN



L.H.



Respondent(Appellant)



and



Catholic Childrens Aid Society of Toronto



Applicant(Respondent)

and

M.H.

Respondent(Respondent)



L.H., acting in person



Carolyn Leach, for the Office of
          the Childrens lawyer

Chris Andrikakis, for the respondent
          Catholic Childrens Aid Society

M.H., acting in person



Heard: March 22, 2011



On appeal from the judgment of
          Justice Nancy J. Spies of the Superior Court of Justice dated August 26,
          2010.



Juriansz J.A.:



Introduction

[1]

L.H. appeals from the decision of Spies J. dated August
    26, 2010 that dismissed her appeal from the order of Brownstone J. of the
    Ontario Court of Justice dated February 1, 2010.

[2]

Justice Brownstone, on the application of the Catholic
    Childrens Aid Society of Toronto, (the Society) made an order that the
    appellants two children should remain in the custody of their father for six
    months, under the Societys supervision, and that the appellant should have
    supervised therapeutic access to the children in the presence of a mutually agreed
    upon psychologist. That order was set to expire in July 2010 but this appeal
    has kept it in force.

[3]

The principal ground of appeal is that Brownstone J.s order
    was made on the Societys motion for summary judgment rather than after a
viva voce
trial. The appellant claims
    she was entitled to a trial with
viva
    voce
evidence by virtue of this courts decision, made on August 21, 2009,
    relating to the original protection order made by Zuker J. on July 10, 2008.
    The order of Zuker J. was made after a trial of some 18 days. Zuker J. heard a
    number of witnesses, including, notably, Dr. Amin, who had conducted parenting
    capacity assessments and assessments of the children under s. 54 of the
Child and Family Services Act
, R.S.O.
    1990, c. C.11. Dr.
Amins
testimony was extremely adverse
    to the appellant. He diagnosed her as suffering from three psychiatric
    disorders and gave his opinion that removal of the children from the mothers
    custody was necessary to ensure they had a relationship with the father. Zuker
    J. accepted Dr. Amins evidence. The appellants appeal from
Zuker
J.s decision was dismissed by Paisley J. on January
    14, 2009.

[4]

When the matter came before this court on August 21,
    2009, the appellant sought to adduce fresh evidence undermining Dr. Amins evidence.
    At the hearing of the appeal, counsel for the Society advised this court that a
    status review hearing was impending and would, if the
court
    so directed, result
in a new trial in the Ontario Court of Justice at
    which the appellants fresh evidence could be considered.

[5]

This court disposed of the matter with the following endorsement:

Having heard argument and the submissions of counsel for the respondents
    that the status review hearing now under way will result in a new trial in the
    Ontario Provincial Court at which Ms. H. will be able to call the evidence she
    seeks to put before us, in our view, it is in the best interests of the
    children that the status review hearing proceed by way of a new trial that it
    be expedited and that it be before a judge other than Justice Zuker. The
status quo
is to remain in the meantime.
    We would therefore allow the appeal to this limited extent and so order.

[6]

After
    being remitted to the Ontario Court of Justice, the matter was called in Trial
    Assignment Court on October 22, 2009, but a trial date could not be obtained
    because of a more urgent child protection matter. The Society brought a summary
    judgment motion which was heard by Brownstone J. on January 27, 2010.
    Brownstone J. released his judgment on February 1, 2010.

Decision of the Family Court

[7]

Brownstone J. was well aware of the appellants
    position. He put it to counsel for the Society as follows:

[T]he Court of Appeal allowed the appeal in part because of some new
    evidence with respect to the Assessment by Doctor
Amin
.
    And, now there is more evidence, because we have the decision of the College as
    well. And, so they ordered a trial, an expedited trial, for the status review.
    And, that you, as counsel for the Society, in her view, undertook to them that
    this would likely go to trial. And, so a Summary Judgment Motion would be
    inappropriate, and contrary to the Order of the Court of Appeal, which has
    directed that there be a trial. Have I got that pretty much right?

[8]

In his
    reasons, Brownstone J. dealt at length with the impact of this courts
    endorsement of August 21, 2009. He decided to entertain the Societys summary
    judgment motion if it could meet the stringent test in Rule 16 of the
Family Law Rules
, O. Reg. 114/99. He
    noted that the definition of trial in Rule 2 of the
Family Law Rules
includes a hearing and that it was well
    established that a summary judgment motion constituted a hearing. As well, he
    considered it significant that the appellant had herself brought a summary
    judgment motion in the status review proceeding, where she sought an immediate
    order that the children be placed in her care forthwith.

[9]

Brownstone J. considered the fresh evidence adduced by
    the appellant. She had obtained her own psychiatric assessment by Dr. Srinvasan
    who did not find her to be suffering from any of the personality disorders or
    mental illnesses identified by Dr. Amin. She also tendered the report of Dr.
    Berry, a psychologist who critiqued the assessments of Dr. Amin. He severely
    criticized the methodology and analysis of Dr. Amin and the conclusions that
    Dr. Amin reached in his assessment of the appellants mental health. He also
    considered the decision of the Complaints Panel of the College of Psychologists
    of Ontario, which adjudicated the complaint filed by the appellant against Dr.
    Amin. He noted that the Complaints Panel found that Dr. Amin was neither biased
    nor unreasonable in the choice of tests that he had administered, that he was
    acting within the boundaries of his professional competence and did not display
    a lack of knowledge, skill or judgment, and that he met the minimum standards
    of his profession. However, the Panel did find that he may not have had sufficient
    evidence to support his diagnoses of certain personality disorders and issued a
    caution to him in the following terms:

Decisions such as these have a major impact on the lives of children and
    families, so any diagnosis made must be fully supported. The Panel suggests
    that Dr. Amin ensure that he not only has but also presents sufficient facts,
    including but not limited to the use of contemporary tests and assessments,
    contemporary diagnostic frameworks, and a broad range of collateral evidence,
    to support his diagnostic formulations. The Panel also suggests that Dr. Amin
    identify all sources of information, particularly in a high stakes situation
    such as the present case.

[10]

Based on the fresh evidence, Brownstone J. concluded definitively
    that the appellant may well have been unfairly and inaccurately labelled with
    several personality disorders and mental health diagnoses, in Dr. Amins
    assessment report that was adduced at the protection trial.

[11]

Brownstone J. then traced the history of the proceedings,
    made reference to the exorbitant demands upon the judges of the North Toronto
    Family Court to manage one of the highest family law caseload volumes in Canada
    and concluded that every reasonable effort was made to expedite the case in
    accordance with the direction of the Court of Appeal.

[12]

What is most pertinent in Brownstone J.s reasons for
    the present appeal is his consideration of the impact of the fresh evidence on
    his determination of the status review. He observed that while it was not his
    role to sit in appeal of Zuker J.s decision, it was indisputable that, even
    without an assessment report, [the appellants] behaviour of extreme parental
    alienation (described in great detail in the 140 page decision) certainly
    necessitated the protection finding and disposition that was made. He added
    that the appellants behaviour in the 17 months since the trial:

[H]as only served to confirm the
    fundamentally important finding made at trial, that she is a person who focuses
    only on her own needs and not those of her children. One does not need the
    labels and diagnoses wrongly applied to [her] by Dr.
Amin
to conclude without any hesitation that [she] has absolutely no insight into
    the consequences of her behavior on her childrens well-being.

[13]

Even though Brownstone J. concluded that Dr. Amins
    diagnoses and labeling of the appellant as suffering from personality disorders
    and mental illnesses were wrong, he found that the appellant had, by her own
    conduct in the 17 months since trial, made Dr.
Amins
report entirely irrelevant at this stage.

[14]

On the evidence before him, Brownstone J. found the
    following crucial facts that were not in dispute:

1)

The children had not seen their
    mother since February 5, 2009.

2)

The childrens position, as
    articulated by their lawyer, was that they are extremely reluctant to have
    contact with their mother.  J.N.Hu., who was 11 years old at the time, was
    adamantly refusing any contact whatsoever.  E.M.Hu., who was 8 years old
    at the time, was wary about having contact with his mother, and was requesting
    that any contact be in the presence of a psychologist.

3)

The children had done extremely well
    since going to live with their father on August 1, 2008.  They were happy,
    healthy, and doing very well at school.

4)

The mothers behaviour at access
    visits from August 2008 to February 5, 2009 was extremely problematic,
    characterized by her insistence on engaging the children in inappropriate
    discussions regarding their father, the litigation and the competence of the Society
    workers.

[15]

At the summary judgment motion the appellant did not
    present any evidence to contradict these crucial findings of fact. Rather, as
    Brownstone J. pointed out, the appellant was:

[F]
ixated
on being vindicated for the wrong
    that she perceives to have been done to her by Dr. Amin and by Justice Zukers
    reliance on his assessment report.  She is unwilling or unable to understand
    that Justice Zukers decision was based not only on the assessment report but
    on a great deal of other evidence describing her actual behaviour.  She is
    unwilling or unable to comprehend that, even if the trial decision was wrong 
    and it certainly was not  we must all focus on the childrens needs now. 
    We cannot turn back the clock.  We have to look at the current
    circumstances and address the childrens current needs.  Tragically, [the
    appellant] appears to be unwilling or unable to understand that her children
    have been estranged from her NOT because of her psychology, but because of her
    behaviour.

[16]

Brownstone J. concluded that there was no genuine issue
    for trial because there was no realistic possibility of an outcome other than that
    as sought by the Society. Consequently, he granted summary judgment.

Decision of the Superior Court

[17]

Spies J., in dismissing the appellants appeal of the
    order of Brownstone J., agreed with him that the use of the word trial by the
    Court of Appeal did not necessarily mean a trial with
viva voce
evidence. She pointed out that under the
Child and Family Services Act
(the
    Act) the court was required to hold a hearing, and that this court in
Catholic Childrens Aid Society of Toronto
    v. L.O
. (1997), 30 R.F.L. (4th) 16, at para.
7,
held that the Acts statutory requirements for a hearing can include a summary
    judgment motion. Spies J. also pointed out that Brownstone J. had admitted and
    considered all of the fresh evidence that the appellant tendered and had
    accepted her position that Dr. Amins diagnoses and labeling of her as
    suffering from personality disorders and mental illnesses were wrong.

Issues and Positions of the Parties

[18]

On appeal, the appellant advances the same argument she
    pressed in the courts below. She submits that both courts below erred by
    deciding that this courts endorsement of August 21, 2009 did not prevent the
    Society from bringing its summary judgment application. Specifically, she seeks
    a declaration that:

[T]he Order granted on August 21, 2009 was for a new trial (hence there
    were 
triable
issues), the trial was to include
viva voce
evidence (witnesses were to
    be called and oral testimony given) and the new trial (not the Child
    Protection Application: Status Review) was to be expedited, or set down at the
    next Trial Assignment Court dateafter the appeal

[19]

She also claims that her rights under s. 7 of the
Canadian Charter of Rights and Freedoms
have
    been infringed and seeks damages.

[20]

The Society submits that the August 21, 2009 order of
    this court could not preclude its summary judgment application. The Office of
    the Childrens Lawyer representing the children supports the position of the
    Society and explained that the children wish to remain in their fathers care
    and wish to have the matter determined quickly. The respondent father submitted
    that the lengthy litigation was having a detrimental effect on the children,
    now nine and twelve years old.

Discussion

[21]

It seems to me that the appellant is seeking to revisit
    rather than implement the August 21, 2009 order of this court. It is important
    to note that the courts endorsement of August 21, 2009 did not set aside the
    order of
Zuker
J. By specifically leaving in place
    the
status quo
, the court left in
    place the protection order. The court allowed the appeal only to the limited
    extent that the appellant would be able to call the fresh evidence she sought
    to place before this court at the impending status review hearing, that the
    status review hearing proceed by way of a new trial before a different trial
    judge, and that it be expedited.

[22]

This courts August 21, 2009 order did not grant the
    appellant a new trial as to the legitimacy of the original protection order. It
    simply allowed her to tender her fresh evidence at the status review hearing.
    This court did not and could not clothe Brownstone J. with jurisdiction to
    review the legitimacy of the original protection order made by
Zuker
J. Justice Brownstones jurisdiction was to determine
    the continuing effect of the protection order. He decided that the protection
    order should remain in effect, even though he accepted the appellants position
    that Dr. Amins assessment report was baseless.

[23]

Moreover, this court on this appeal has no jurisdiction
    to grant the appellant a new trial as to whether the original protection order
    should have been made. What is before this court on appeal is Brownstone J.s
    order made on the status review hearing, which was upheld by Spies
J.
The appeal of the legitimacy of the original protection order
    was before this court in the appellants previous appeal on August 21, 2009. I repeat
    that in disposing of that appeal, this court did not set aside the protection
    order and remit to the Ontario Court of Justice the Societys application for a
    protection order. The court considered it in the best interests of the children
    to leave in place the
status quo
and
    allow the appeal to the limited extent that the appellant would be able to
    call her fresh evidence at the status review hearing, so that it could be
    assessed in the context of the continuing effect of the protection order.

[24]

Consequently, the only question on appeal that this
    court can now consider is whether the courts August 21, 2009 order required
    the status review hearing to proceed on the basis of
viva voce
evidence. That question turns on the meaning to be given
    to the word trial in the courts endorsement.

[25]

To establish that the word trial in the courts
    endorsement meant a trial with
viva voce
evidence, the appellant has filed the transcript of the digital audio recording
    of the hearing before the Court of Appeal on August 21, 2009. The audio
    recording is not part of the courts disposition and should never be treated as
    such. Reliance on the audio recording to interpret the courts reasons raises
    several difficulties. The Court of Appeal is a collegial court and a comment made
    by one member of the panel should not be taken to express the position of the
    court, let alone the final position of that member before deliberation and
    conference with the other judges and further reflection before the decision is
    rendered. While recourse may be had to the audio recording in circumstances
    such as this, extreme caution must be exercised in relying on it as the court
    speaks through its formal reasons.

[26]

That said
,
the audio recording
    was considered by Spies J., who found that it showed that the court anticipated
    the status review application would proceed by way of a
viva voce
hearing. I accept, for the sake of the analysis that that
    is so. That, however, is not determinative.

[27]

In the course of submissions, the court had been led to
    believe that arrangements would be made that the status review would proceed by
    way of a hearing with
viva voce
evidence. The president of the panel stated that the court was trying to be
    practical in a way that would advance ultimately the best interests of the
    children. I agree with the observation of Spies J. that:

It is clear from the
    exchange with counsel that although everyone anticipated that the status review
    application would proceed by way of a trial, the Courts overriding concern was
    that it was not the best forum to consider the fresh evidence the Mother was
    attempting to produce at the appeal, as the Court of Appeal deals with
    questions of law. The Courts decision was intended to allow the Mother to call
    this evidence before a Family Judge of the Ontario Court of Justice during the
    status review application that was still pending.

[28]

The
    formal endorsement of the court may reflect
the courts anticipation
    that
viva voce
evidence would be
    called, but it does not direct that
viva
    voce
evidence be called. Nor does the formal order preclude the application
    of the
Family Law Rules
and their
    definition of trial.

[29]

In my view, the courts order must be understood in the
    context of the
Family Law

Rules
and their definition of trial.
    As Spies J. pointed out, a trial includes a hearing and the appellant was
    accorded a hearing. I note also that rule 2(2) provides that the primary
    objective of the
Family Law Rules
is
    to enable the court to deal with cases justly, and rule 2(3) provides that [d]
ealing
with a case justly includes(c) dealing with the
    case in ways that are appropriate to its importance and complexity, and (d) giving
    appropriate court resources to the case while taking account of the need to
    give resources to other cases.

[30]

Upon being remitted to the Ontario Court of Justice,
    the matter was scheduled in Trial Assignment Court on October 22, 2009. A trial
    date was not available because more urgent matters had to be scheduled. Counsel
    for the Society then asked that the matter be set down for a summary judgment
    motion. The request of the Society was supported by counsel for the children as
    the children wanted the matter determined quickly. Before sending the matter down
    for summary judgment motion, the trial assignment judge noted in passing that the
    appellant had herself brought a motion for disposition without a trial.

[31]

On the summary judgment motion, the appellants fresh
    evidence was admitted. Brownstone J. carefully considered that evidence and
    found, without
viva voce
testimony,
    that Dr. Amins assessment report was baseless.

[32]

The appellant had the opportunity to introduce any
    other evidence that was relevant at the motion, but presented no evidence to
    counter the crucial facts found by Brownstone J. He found that there was no
    genuine issue of material fact that required a trial for resolution and ordered
    that the protection order remain in place for a further six months.

[33]

Spies J. found no error in Brownstone J.s conclusion that
    the protection order should remain in place. I see no basis to interfere and
    would dismiss the appeal.

[34]

I would go further. Even if the courts August 21, 2009
    order were read to direct a
viva voce
hearing
    I would dismiss the appeal for two reasons.

[35]

First, Brownstone J., in his thoughtful reasons, has
    given effect to the courts order of August 21, 2009. He carefully considered the
    appellants fresh evidence and left no doubt that he found Dr. Amins assessment
    report was baseless. At this point, no party takes the position that Dr. Amins
    assessment report should be accorded any weight whatsoever. Brownstone J. found
    that the other evidence called at the 18-day trial and described in
Zuker
J.s 140-page decision certainly necessitated the
    protection finding and disposition that was made. Hence, the appellants
    contest of Dr. Amins evidence has become moot. Nothing would be achieved by
    ordering another
viva voce
status
    review hearing to consider the appellants fresh evidence seeking to undermine Dr.
Amins
testimony. And, as I have explained, this
    court has no jurisdiction to order what the appellant really wants  i.e. a new
    trial to consider the legitimacy of the original protection order.

[36]

Second, the overriding consideration is the best
    interests of the children. The substantive question of the appropriate present arrangements
    for the childrens custody will be determined by way of a status review hearing
    that must be conducted upon the expiration of the order of Brownstone J. At
    that status review, evidence relating to the childrens present circumstances
    and needs would be relevant. The best interests of the children would not be
    served by litigation attempting to vindicate positions the parents had taken in
    the past.

[37]

I would conclude that even if the court had ordered a
viva voce
hearing, the failure to hold a
viva voce
hearing has not occasioned
    a miscarriage of justice.

[38]

For these reasons, I would dismiss the appeal. Costs
    were not sought.

R.G. Juriansz J.A.

I agree David Watt
    J.A.

Armstrong J.A. (Concurring in the
    result):

[39]

I have read the reasons for judgment of my colleague,
    Juriansz J.A. While I concur in the result, I take a different view of this
    courts order of August 21, 2009.

[40]

When the court made its order, it is clear that the
    court expected that the status hearing would proceed as a
viva voce
trial. For convenience, I repeat the courts endorsement
    here:

Having heard argument and the submissions of counsel
    for the respondents that the status review hearing now under way will result in
    a new trial in the Ontario Provincial Court at which Ms. H. will be able to
    call the evidence she seeks to put before us, in our view, it is in the best
    interests of the children that the status review hearing proceed by way of a
    new trial that it be expedited and that it be before a judge other than Justice
Zuker
. The
status
    quo
is to remain in the meantime.  We
    would therefore allow the appeal to this limited extent and so order.

[41]

All parties were in agreement with the approach set out
    in the endorsement. I am satisfied that the court did not have in mind that the
    outstanding evidentiary issues would be disposed of by way of a motion for
    summary judgment or that the definition of the word, trial, in the Family
    Court Rules could lead to something less than a
viva voce
hearing.

[42]

While I am concerned that the appellant did not get the
    kind of trial she was promised, I am, at the same time, satisfied that no
    injustice was done. As is pointed out by my colleague, the appellant succeeded
    in having the evidence of Dr.
Amin
rejected totally
    by the motion judge. The motion judge admitted and considered all of the fresh
    evidence put forward by the appellant.

[43]

I agree with my colleague that absolutely nothing would
    be achieved by ordering another
viva voce
status review to consider the appellants fresh evidence in order to undermine
    Dr.
Amins
evidence, which has already been found to
    be baseless.

[44]

I also agree that the best interests of the children do
    not lie in another court proceeding.

[45]

I would dismiss the appeal with costs.

R.P. Armstrong J.A.

RELEASED:  May 17,
    2011


