Professional Documents
Culture Documents
The court hearing this matter directs that the following notice be attached
to the file:
This is a case under Part III of the Child and Family Services Act and is
subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These
subsections and subsection 85(3) of the Child and Family Services Act, which
CITATION: C.A.S. of the R.M. of W. v. C.T. and J.B., 2017 ONSC 1022
COURT FILE NO.: FS-1017-15
DATE: 2017-02-09
AND:
COUNSEL: Jeffrey W. Boich, Counsel for The Childrens Aid Society of the
Regional Municipality of Waterloo
Catherine Bellinger, Counsel for the Ontario Childrens Lawyer
Julie Kirkpatrick, Counsel for C.T.
Katherine Hensel, Counsel for J.B.
ORAL REASONS
A. INTRODUCTION
[1] The child welfare system in Ontario is broken. The patchwork of child welfare
legislation spread across Canada is not working.
[2] One only need glance at any newspaper or T.V. news report to recognize that the present
systems in place designed to protect Canadas children is failing the most vulnerable of our
population. We have had a Truth and Reconciliation Commission and now the Murdered and
Missing Indigenous Women enquiry to try to retrospectively figure out how we as a society have
failed our indigenous citizens.
[3] Alex, an 18 year old in B.C., after 17 placements over 11 years, killed himself because he
knew that at 19, when all of his supports would have been terminated, he did not have the skills
to be able to survive.
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[4] Young teenagers (children really, in newly developed adult bodies) are warehoused in
motel rooms in Winnipeg and Vancouver because there are not enough Foster parent homes or
group homes available anywhere in Canada that can meet the volume of children in care.
[5] Aboriginal children rescued from intolerable living conditions on reserves and inner
cities are removed from their parents, their community and their culture and set up as best can be
provided, usually with non-aboriginal families but when living in hotels in large cities become
easy prey for the predators that seek them out and these needy, damaged teens are easy to
[6] In Ontario, delay from apprehension to a decision after trial has become so normal and
children languish in legal limbo for so long that few of the participants in the process (except
for Appeal courts) even bother to mention how long in care the child(ren) have awaited some
[7] All participants in the process are overwhelmed with the volume, and are ground down
by the complexities of the process and myriad of good intentions that are embodied in the
Legislation.
[8] Significant delay has become the most accurate predicator of the outcome of most child
welfare trials.
[9] A childs best interests and keeping families intact and intervening only when absolutely
necessary and with the least intrusive intervention have all been trumped by the inexorable
reality of delay that result from the diverse demands inherent in the system.
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[10] The process is underfunded, overworked and unintentionally abusive to all of its
participants. The expectations and timelines set by legislation are entirely unrealistic in todays
pluralistic society.
[11] Agency social workers are overwhelmed by case-load and the demands of them imposed
by the legislation and by the complex problems that their multiple families and children present.
[12] The OCL is facing a tidal-wave of requests and is so overwhelmed that panel lawyers are
often rushed into a case at the last hour and cannot possibly perform their duties adequately
[13] The few private counsel that will even act for parents (and the list is a very short one in
each community) are so overwhelmed with demand that they have little, if any, time to prepare,
to interview and listen to their usually disadvantaged client and only rarely have the luxury of
time to develop responding evidence/witnesses to challenge those of the government Agency that
has been both supporting their client AND collecting evidence to be tendered against that very
[14] Judges and the administration of the courts scramble to create adequate space to expedite
a trial and to continue the trial in a timely manner with at least one eye on the legislated
timelines. In reality, too few judges for too many cases cooper up some days here, more days
there, usually, months later when they can fit the trial into their already overwhelming schedules.
Writing a decision that will affect a child forever is left to a time when space miraculously
[15] After R. v. Jordan, I am told that locally the 2 full-time family judges in the O.C.J. that
used to get some relief from a few of their colleagues servicing the demands of the criminal
process, will now be expected to carry the entire load of the child welfare and family custody and
child support cases on their own without those extra judges who will now need to ensure that
the criminal trials and preliminary hearings meet the new deadlines. What was earlier an
incredibly challenging responsibility before Jordan, has now become an entirely impossible task.
[16] This Perfect Storm, all participants trying to do what they can in a process that has
become entirely unworkable and abusive, has been building for years.
[17] In this case, but one example of a broken system, the parents and K. have been consumed
and trampled by the Frankenstein process we have created and allowed to become
unmanageable.
[18] Mr. B. and Ms. T, in your fresh evidence affidavits you appear stunned and confused by
how the system has treated you and your child. You dont seem to be able to understand how
this could and did happen. Your confusion is entirely understandable and although it will offer
you little comfort, I apologize to you for the manner in which you have been treated, ignored,
[19] It should not have happened. You should have been treated better. It did and you
werent, and for that, on behalf of the very system that perpetrated this upon you, I apologize to
you both.
B. Overview
[20] This very unusual appeal now raises seven issues that require the courts attention:
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2. Miscarriage of justice.
4. Procedural delay.
7. Costs.
[21] At first the Notices of Appeal challenged the entire trial judges decision, including the
Order for Crown Wardship and the denial of access by the parents to K. Those Notices of
Appeal were eventually amended after the trial counsel who were the initial Appeal counsel were
replaced or forced to withdraw as Appeal counsel. The present Appeal counsel amended the
grounds and the relief sought (on the instruction of their clients) and withdrew the challenge to
the trial judges findings that supported the Order for Crown Wardship.
[22] Technically then, the appeal now to be decided is embodied in paras. 206 to 211 of the
trial judges Reasons for Judgment, released on December 15, 2015, the same day as Lang, J.A.
[23] Appeal counsel for both Appellants (Mother & Father) also seek a declaratory order
regarding the alleged incompetence of both of their trial counsel AND that a miscarriage of
justice occurred during the course of these legal proceedings from the apprehension of K. in
September 2012 through to and including the hearing of Appeal January 31, 2017/February 1 &
2, 2017.
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[24] I do not intend to review all of the circumstances and failures of the court process with
which the parents rightfully take issue. But to observe that the administration of justice failed
these parents (and more importantly the child K.) is a gross understatement, well beyond the
lamentations of Sloan J. and the Ontario Court of Appeal in the case of CMEN v. CAS of R. of
W., [2015] O.J. No. 4705 see paras. 30, 31 and 33-35.
[25] The delay in this case, despite the time limits set by s.70 of the Act is well beyond
unconscionable. Both trial counsel, Gratl (Mother) and McKenzie (Father) were retained by the
parents (funded by the Ontario Legal Aid Plan), well before a consent finding in need of
protection was made in May 2012. Despite those findings K. remained in her Mothers care until
the erroneous hair follicle testing of the mother and child by Motherisk in September 2012. K.
was immediately apprehended based entirely on that now totally discredited drug testing
conducted by Motherisk.
[26] Throughout those early days of the proceeding, Mother repeated to anyone who would
(b) the drug tests were wrong and that she was not using cocaine.
[27] Her counsel ignored those assertions and took no steps whatsoever to bring any motion
before the court, or to get competing drug tests to challenge the Motherisk test results, in order to
give the court evidence that would allow the court to reconsider the circumstances of the
s.57(3) or with s.57(5) where a child is an Indian or native person, with a band or native
[28] Indeed, the temporary consent order that itself contained errors (child of no native
heritage), see s.47(2)(c) sat unchallenged from May 30, 2012 until the trial started July 21,
[30] The decision was reserved on March 17, 2015. Almost nine (9) months later on
December 15, 2015, he trial judge released her 211 paragraph written reasons, almost 3.5 years
[31] This passage of time is not only entirely unacceptable, it is reprehensible and cannot be
[32] This abuse of process was further exacerbated in that during the hiatus between mid-
March 2015 and the release of the trial judges decision in mid-December 2015, the child was
moved from her first 3 year foster placement (where shed been since apprehension in September
OCL or any of their counsel. Despite this reality (the first foster mother gave notice before the
trial that she intended to retire in June 2014, thus the need for a replacement) was disclosed at
trial and canvassed with the first foster mother in some detail. K. has remained at that new
foster/adoption placement. Since the end of June 2015 now over 19 months and she still has
not been free to be placed for adoption with that second foster mother.
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[33] I have no evidence that despite extensive attention given at trial to the circumstances and
unreliability of the Motherisk testing (including a mid-trial. private conference amongst three
counsel and the trial judge), no counsel for either Mother/Father, the Agency nor the OCL
moved to have child placed/returned to Mother or any other of the legislated alternatives, nor is
there any evidence that despite what should have been patently obvious to anyone paying any
attention (including the trial judge) to the childs native heritage, the Agency paid any attention
to s.57(2)(3) less disruptive alternative, (4) community placement or (5) child Indian/native shall
place the child with a member of extended family/childs band/native community OR another
Indian or native family, or that any counsel/party, the OCL or the trial judge even considered the
[34] Actually, based upon the early May 30, 2012 consent findings/order, the trial in
2014/2015 was a S.R.A. pursuant to s.64/65 of the Act. But I find that the principles/protections
[35] Basically, once Motherisk tests were received in and accepted, the Agency took
decision/position that the only reasonable result was for Crown Wardship and it passively
acquiesced to the delays that ensued and to which court contributed and exacerbated. The status
quo created by delays eventually dictated a reality that all participants recognized, acknowledged
and accepted.
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[36] The status quo made the decision the passage of time predicted the result. This is not
[37] Neither counsel for Mother or Father did anything at all to ameliorate or avoid that
inevitable result their passivity and inattentiveness to instructions and their unwillingness to
even consider registering an objection to the process effectively sabotaged their own clients
[38] Indeed, except for serving and filing generic Notices of Appeal within the week of the
decision being released, neither counsel sought by simultaneous Notices of Motion to seek an
order to continued access between the parents and the child pending the Appeal Hearing.
Neither counsel ordered transcripts of the trial, nor does the evidence support that either counsel
sought approval from their funding source (Ontario Legal Aid Plan) to order those transcripts.
Indeed, counsel appeared in S.C.J. on March 18, April 29, May 19 and May 27, 2016, all the
while when confronted assure the presiding judge that all was proceeding apace and that no
[39] The Appeals had not been perfected by the last date and Flynn J. allowed then counsel a
further period of time (until June 6, 2016) to perfect the Appeals and order the transcripts and in
default of compliance, both Appeals were to be dismissed as abandoned. Indeed, as early as the
first attendance in S.C.J., on March 18, 2016, Taylor J. ordered that the transcripts were to be
ordered by counsel by April 29, 2016. They were not. On April 29, 2016, Ms. Gratl didnt even
attend. Ms. McKenzie spoke for both and assured the court that matters were proceeding.
Taylor J. again ordered the transcripts to be ordered by May 27, 2016, or in default the Mothers
appeal was dismissed. Ms. McKenzie was also to perfect Fathers appeal by May 27, 2016.
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Evidence now shows that the trial transcripts were not in fact ordered until July 6, 2016 by the
new counsel.
[40] In the meantime, Fathers counsel had filed a generic Notice of Appeal and Certificate
Respecting Evidence, both dated January 12, 2016, with no counsel shown on the documents as
representing him, despite Ms. McKenzies appearing in court as his counsel on March 18, April
29, May 19 and May 27. This is beyond curious. She never brought a motion for access to the
child by the Father (her client) at any time after the December 15, 2015 decision. As a result, the
Father has not seen the child now for over 13 months. Mother has not seen the child since July
[41] On May 27, 2016, as well as the terms of his Order with regard to perfecting the Appeal
to ordering the trial transcripts by June 6, 2016, Flynn J. set a conditional hearing date for the
Appeals for July 25, 2016 (one day!) was allowed on the advice of counsel. Totally unrealistic.
[42] On July 21, 2016, Mothers new counsel, Ms. Kirkpatrick (erroneously referred to as Ms.
Fitzpatrick by Broad J. in his endorsement) brought a motion inter alia to adjourn the July 25,
2016 hearing and to be allowed to amend and restart the appeal and to remove Ms. McKenzie as
[43] For written reasons, Broad J. declined to adjourn the Appeal hearing date (4 days hence)
and adjourned the balance of the relief sought in the motion to the Appeal Judge.
[44] On July 25, 2016, five counsel attended. (Strangely enough, Ms. McKenzie was still
counsel of record for Father, despite the Mothers motion for her to be removed, based upon the
[45] Sloan J. adjourned the Appeal hearing to September 29, 2016 and identified that Ms.
Russo (OCL) and Ms. McKenzie had (that day) withdrawn as counsel for the OCL and for
Father. He then made several procedural orders including allowing the parents to file amended
Notices of Appeal, set timelines and gave directions with regard to Facta/Exhibit Books/Books
[46] As a result of the Sloan J. July 25, 2016 Order on August 11, 2016, Father retained Ms.
Hensel. Upon the return of the Appeal for a hearing on September 29, 2016 before Braid J., the
parties/counsel all agreed to adjourn the hearing to allow them to avail themselves of the
Aboriginal Alternative Dispute Resolution (AADR) process. Braid J. seized herself as case
management judge and set further timelines for various events, and the service of documentation
to occur, including the need (or not) to give notice of the proceedings to an Indian Band and The
Agency undertook to give notice of new hearing date to the new foster mother M. (who by then
had had K. in her care for 14 months (see s.39 (3) of Act).
[47] The matter was adjourned to November 25, 2016 before Braid J. to manage the appeal
hearing and to report to her on the AADR process and to set a date for the Appeal Hearing.
[48] All parties attended (Ms. Kirkpatrick, agent for Fathers counsel Hensel) on November
25, 2016. Braid J. observed that This matter has not progressed as far as I had directed by this
date. She then endorsed eight (8) terms of timelines for further events/service of documentation
to occur and set the Appeal Hearing for 2 full days on January 31, February 1, 2017. She
allowed for cross examinations if completed by December 31, 2016 AADR efforts were to
[49] The Appeal Hearing proceeded as scheduled before me on January 31, February 1 & 2,
2017.
[50] I was advised during the submissions that despite the Appeal Hearing proceeding as
[51] At the Appeal Hearing, on consent, I was given two papers by Ms. Hensel, which papers
1. Tragic Choices and the Division of Sorrow speaking about Race, Culture
and Community traumatization for the lives of children by (now) Professor
Hadley Friedland found in (2009) 25 Canadian Journal of Family Law 223-
256; and
2. a chapter from Putting a Human Face on Child Welfare: Voices from the
Prairies, a text published in (2007), On the Matter of Cross-Cultural
Aboriginal Adoptions, written by Kenn Richard.
[52] I was also given, on consent, by OCL counsel Belinger, a paper written by Elizabeth
McCarty entitled Openness to Access in Ontario dated November 21, 2016, presented at the
Ontario Bar Association conference entitled Advanced Issues in Child Protection Law.
[53] At the outset of the Appeal Hearing, I ruled on the several motions seeking to file further
evidence. I allowed affidavits by each parent, three from the Agency, including one from the
new foster mother (M.) and one from the child K.s ongoing therapist, as well as evidence of
post-trial decisions and interviews with the child and M. in July 2016 by Todd Perreault, an
[54] In coming to my decision, I have relied heavily on this fresh evidence, none of which
Issues
1. Competence of Counsel
[55] If my decision is sought to be reviewed by another court, I reserve the right to expand
upon the following areas and the various cases presented, quoted and relied upon by counsel and
myself.
[56] Although not tendered by counsel, since it is in the public domain, I examined both the
LSUC Standards of the Legal Profession and Regulations, as well as the Advocates Society
Principles of Professionalism for Advocates and Best Practices, both of which are relevant to
1. Advocates should pursue the interests of their clients resolutely within the
bounds of the law and the rules of professional conduct, and to the best of their
abilities. Advocates must raise fearlessly every issue, advance every argument,
and ask every question." At all materials times, however, they must represent
their clients responsibly and with civility and integrity. The duty of zealous
representation must be balanced with duties to the court, to opposing counsel and
to the administration of justice.
3. Advocates must at all times advise their clients with honesty and condour.
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8. Advocates should treat all witnesses with fairness, courtesy and respect, and
should not abuse, intimidate or harass a witness.
____________________
1. Advocates should use tactics that are legal, honest and respectful of courts
and tribunals.
3. Advocates should educate clients and others about the court processes and
promote the publics confidence in the administration of justice.
6. Advocates should ensure that the court is apprised of changes in the law and
important judicial authority on the legal questions in at issue in a proceeding.
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[59] The affidavits of the Mother and the Father, filed as fresh evidence, which evidence I
accept as uncontroverted disclose a litany of complaints about their two trial counsel, including a
list both of broad and specific areas of inattention, a lack of preparedness, ignoring instructions,
lack of preparation of the client to give evidence at trial, an unwillingness to consult or explain, a
lack of the development of a theory of the clients case, treating the client with disdain and/or
ignoring her evidence/instructions, a lack of due diligence to examine case notes or the Maybe
Days adoption book, not objecting in court when appropriate (to the mid-trial secret meeting
or reporting to the client what occurred in the meeting), not objecting to Ms. Russo giving
evidence from counsel table upon which the trial judge relied see: Jewish Family & Children
Services of TD v. JK (2014), not investigating or calling direct evidence from the mothers doctor
regarding her medical marijuana use and her mental health, obtaining a comparison drug test in a
timely way to refute the Motherisk erroneous test results or to move to have the court place the
child back with the Mother after the Mother did finally obtain a clear (for cocaine) drug test (and
the child was going to be moved in any event), was disorganized and unprepared, was
confrontative and at one juncture of the trial directly threatened the trial judge that she
intended to appeal. The list of errors and shortcomings are delineated in paras. 25-41 of
Mothers counsels factum and are as well as shocking are sufficient from which a finding of
[60] Both parents counsel dropped the ball as it applies to Ms. Russo (the OCL
representative), giving evidence from counsel table and not having interviewed or even contacted
any collaterals; either parent; any of the childs school teachers or the Mothers medical doctor
(re her medical doctors monitored marijuana use). Both counsel should have registered their
clients objection to the cavalier and inadequate approach to this very complex set of
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circumstances, the delay and the procedural unfairness and non-compliance with the Act of the
[61] Similarly neither counsel did or said anything with regard to the mid-trial private
conferences. No objections were registered and both parents aver that at the time neither of their
counsel explained what occurred out of their view after the trial. Ms. McKenzie wrote a
reporting letter to the Father explaining that she was so unsettled by whatever occurred behind
that closed door (out of the presence of the parents) that she was too shocked and shaken to say
anything! That is unacceptable behaviour in an advocate and shows that Ms. McKenzie was not
up to the task to vigorously advocate for her client. She did not then, nor did she throughout
the trial, zealously represent her clients interests. This is especially true as it applies to the
Fathers native/indigenous heritage. She ignored that aspect of the matter entirely and apparently
passively acquiesced, almost as a spectator, to the ongoing and escalating incivility between Ms.
[62] The transcripts appear to show that both parents counsel had no plan/nor any or much
preparation to do anything positive for their clients, other than cross-examine (at length)
whatever evidence the Agency brought forward. The overall picture appears that both counsel
effectively conceded the result because of the procedural delays and the status quo that had been
established. Neither counsel objected to the long delays between bursts of evidence for a few
days in July 2014, then September 2014, then November 2014, then December 2014 and March
[63] Present counsel for both parents raise many examples of trial counsels incompetence and
inadequate attention to (and active representation of) their clients rights and cases - Fathers
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appeal counsel sets out various instances of this , in her factum at paras. 6-12, inclusive all of
which I accept and which the transcripts (and their clients fresh evidence affidavits) confirm.
Both the Father and the Mother were inadequately represented by incompetent counsel as
[64] Counsel for the parents have cited several cases with regard to ineffectiveness of counsel,
R. v. Archer (2005), at para. 119 the three part test that needs to be met to quash
a conviction on basis of ineffectiveness of counsel.
D.W. v. White 2004 (OCA) additional two factors before Appeal court can
overturn trial judge.
[65] On all of the evidence before me and after applying the case law and the LSUC and
Advocates Society Rules/Principles, I find that the parents were inadequately represented by
incompetent counsel.
[66] Counsel for the mother has also submitted a number of cases that pertain to trial
See paras. 73 -83 of mothers factum, which I have read and with which I agree
with, including:
[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:
(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.
[68] Having read the transcripts of these and other interactions between the trial judge and
(mostly) Ms. Gratl, it would appear to me that Ms. Gratls style of advocacy i.e. her
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manner of advocacy, continuously baited and exasperated the trial judge. Unfortunately, the
trial judge rose to the bait. The other trial counsel (for Father) was intimidated into silence. By
the time of the trial she had been a regular attendee in court and an advocate experienced in the
rough & tumble/adversarial confrontative trial process. If a trained advocate was so shocked
by the trial process, it is an easy and obvious conclusion that the parents would have recognized
that the trial process was stacked against them and that it was unfair biased against them and that
[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.
[70] As Mr. Boich correctly described this case to me, the trial process became a Perfect
appointments/assignments of responsibilities, a lack of due diligence of the parents and the OCL
counsel, the Agency not complying with s.70 timelines/ the indigenous to native issues/court and
judicial resourcing overwhelmed with volume/demands of too many cases/too few judges and an
obvious personal and professional antipathy between Mothers counsel and the trial judge all
contributed to delay and the creation of a status quo of a child in legal limbo from September
[71] Despite finding and declaring that the integrity of the trial/court process was breached
and impeached, in light of the parents withdrawing their appeal of the Crown Wardship
finding/order, I am unpersuaded that there was a complete miscarriage of justice that can be
addressed by way of any relief presently sought, other than a finding of incompetence of counsel
and a declaration that the parents (and the child) were inadequately represented.
[72] I have considered the three part test set out in KR v. CAS (2015), Ont. Div. Crt as
confirmed in Windsor-Essex CAS v. RHC, 2016 OCA. Although I am persuaded that counsel
for the parents were both ineffective and incompetent and that their efforts (of lack thereof) did
indeed undermine the appearance of fairness of the trial, even the parents (whos rights were
abused and their assertions and evidence ignored, demeaned and disbelieved) recognized that the
trial judge was probably correct in December 2015, in confirming Ks placement in care. That,
by then, too much time had passed and too much emotional damage might be inflicted on the
child if permanent placement was not confirmed with a view to adoption and the child were
removed from care and placed with either parent or any of the other options still available to the
[73] Accordingly, I am unpersuaded that the Verdict (see KR v. CAS) or decision was
unreliable or in these circumstances was an overriding and palpable error by the trial judge.
[74] There is no question in my mind that the inordinate and unconscionable delay was the
deciding factor that decided the case, as exacerbated by the very poor (beyond any acceptable
level) performance of their retainers and obligations by trial counsel (until July 2016).
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[75] By any standard, trial counsel did not adequately advocate for their clients and directly
contributed to the delay of the Appeal process and by their respective inaction created the reality
[76] As any informed observer of this entire unfortunate court process would conclude, my
conscience is shocked by the abuse of process and the lack of procedural fairness. But to set
aside the decision and remit the matter to another trial a do-over would damage and threaten
[77] The trial judge devoted only five paragraphs (of 211) to the issue of s.59(2) Access to
Crown Wardship. I interpret the wording of her finding that access by K. to her Mother was
indeed meaningful, but that it was not beneficial (as she found at para. 208). She found that
[78] The trial judge found that any access to either parent would in fact and indeed impair the
childs future opportunities for adoption. She identified at para. 211 of her reasons why
continued contact between her parents and K. would undermine any placement (for adoption)
and that at para. 210 she confirms that there is no evidence that the adoption placement is
supportive of access. No such evidence could possibly be presented since the child wasnt
placed with M. until 3 months after the trial. M. did not give evidence at trial, but apparently
during someone elses evidence at trial a proposed placement was raised at trial. An adverse
inference was somehow made by the trial judge because Unfortunately neither parent took the
opportunity to meet the proposed placement. This whole conclusion is problematic since the
decision to place was not canvassed enough at trial and the investigations, considerations and
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alternatives or other alternative options that may have been available to the Agency were not
examined.
[79] I cannot find direct evidence that a clear offer was ever made to either parent directly to
meet the proposed placement. In their fresh evidence affidavits, the parents deny ever being
[80] In any event, I have better, more recent, direct evidence from the parents, from M. (the
placement) and indirect evidence from the child through Mr. Perraults affidavit, upon which I
rely and which offers me a more complete picture of K.s views and preferences and her more
recent circumstances.
[81] I am well aware of the Standard of Review on Appeals. The case law is well settled and I
reviewed the area in my decision in Van Wieren v. Bush (2015), ONSC 4104, copies of which I
made available to Appeal counsel. At the time of the trial and on the paucity of evidence on this
issue (access) before her (the trial judge chose not to avail herself of her authority by way of s.49
of the CFSA), the trial judge may well have been correct.
[82] The s.59(2.1) test for access to Crown Ward is conjunctive. Regardless whether the trial
judge found that access might be meaningful and beneficial to the child, (she did not make that
finding) without that access also not impairing the childs opportunity for adoption a finding
that it was meaningful and beneficial is useless. Without finding that the third factor had also
been met, two of the three insufficient. The trial judge shall not make an access order unless
all three criteria are met. They were not met and the trial judges order was correct then.
Now, however, I have evidence that K. desires, expects, hopes and prays for contact with her
[83] On the evidence now before me, I find that in fact contact/access between/among K. and
her parents both is both meaningful AND beneficial to K. Her entitlement to explore her
heritage and her culture (as guaranteed by the Act) has been overlooked/thwarted and frustrated
by the ineptness of K.s parents and her trial counsel. That is wrong for so many reasons (see
the two papers made available by Fathers counsel, Ms. Hensel). However, in her affidavit (at
para. 16), and as late as the last day of the Appeal hearing, M. has clearly, unequivocally and in
an unambiguous sentence asserted that she will not proceed with adopting K. if there is an order
for access/contact/openness.
[84] The child (now age 10) clearly and emphatically wants both contact and adoption. I
find that it would be and is in her best interests that she have ongoing contact with her parents
AND that she be adopted by M. I find therefore that the legislation is internally inconsistent;
namely that s.59(2.1) and s.37 are in direct conflict and there is no clear priority of one section
[85] As long as M. refuses to allow openness/access/contact in any way between K. and her
parents, it would appear that the absolute bar provided by s.59(2.1)(b) invests a veto power in
M. that cannot be overridden, despite any findings that both contact and adoption are in K.s best
interests (as per s.37(3) and (4) and s.1(1) and (2) Paramount and Other Purposes of the Act).
[86] When I challenged counsel with this dilemma and sought assistance with which
conflicting best interest need of the child (contact or adoption), I should sacrifice, after
extensive submissions regarding ss.141 and 145 of the Act (adoption and application for
openness), Ms. Kirkpatrick ingeniously devised a Pathway Plan through the legislative
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labyrinth. She proposed that I order access (I prefer to call it contact) to each of the Mother
and the Father AND to K., so that each has a right to access and hence each is entitled to notice
of the Agencys intention to place for adoption (s.145.1.1(2). As a result, each of those three
people (per s.145.1.2(1)) could apply to the court for an Openness Order Hearing.
[87] All four counsel appear to agree with the technical pathway through these sections in
order to circumvent the s.59 2.1(1) v.s. best interests challenge. Further, to protect M.s present
position, counsel encourage me to make the access/contact order but to stay its
including M. (the present foster and future adoptive mother), may participate. M. is apparently
entitled to notice of such an intention to place for adoption and an Openness Application AND
that despite being served with an Openness Application, the adoption plan/placement may
[88] I expressed some scepticism and could not follow the path that all counsel (including
counsel for the Agency) seemed to see. I have revisited ss.141-146 of the Act and still have not
been able to see the clear pathway. However, all counsel present at the appeal hearing appear
to be ad idem: except for M., who may, if she wishes, retain independent counsel to advise her of
her rights and responsibilities as a potential adoptive mother of K. All parties seem to agree that
this pathway is legislatively available and will, at least temporarily meet the needs (and wishes)
of the child K.
[89] If counsel are correct, the proposed pathway would appear to offer K. a chance (albeit a
slim one at present) to extract herself from this confusion, and move towards permanency.
Page: 30
[90] Accordingly, I accede to the proposal and overturn the no access order of the trial judge
and replace it with a contact order enabling and granting contact between Mother and K., Father
and K., and K. and both of her parents. Each of the three is granted an order of contact.
[91] Except for one visit, supervised by the Agency at the CAS, within the next 30 days,
between Mother and K. and Father and K., (one right after the other) for a maximum of 30
minutes each, at which visit Mr. Perrault is to attend either in the room or in an adjoining one-
way observation room, my contact order is stayed, pending further or other order of this court.
[92] I direct Mr. Perrault to visit K. one time before the above contact visit and one time after
the contact visit and to prepare an affidavit of his observations, the childs views and
preferences, her reactions to the visit and any recommendations he might suggest to the parties
[93] I also direct Mr. Perrault to briefly interview each parent AND M., both before and after
the visit and to include his observations of those interviews and recommendations his, if any, in
said affidavit.
[94] Counsel have encouraged me to seize myself of the Openness Hearing. The
[95] My particular personal patent appointing me a Justice of this court (and ex officio of the
OCA) dated August 24, 1995, invests me with dual federal/provincial jurisdiction as a U.F.C.
(Family Branch) Justice. I intend to avail myself of my dual authority to act as a trier at first
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instance of the Openness Application Hearing, which I hereby set to commence May 15, 2017 at
(a) The Agency verbally expressed through its counsel on February 2, 2017, its
intent to place the child K. with M. for adoption. No Indian band nor native
community has been identified by the parties as having an interest in these
proceedings.
(b) All four counsel are directed to forthwith hold a telephone conference call to
consider and resolve whether s.141.2 needs to be addressed and to sign a
consent whether or how that part of the Legislation is to be complied with.
The parents are to each be consulted or to participate in that telephone
conference call.
(c) The Agency counsel is to forthwith serve each other counsel and M. with a
formal written confirmation of its verbal Notice to Place, by FAX or email,
and such shall suffice as proper notice. Time shall run from the verbal
notice given on February 2, 2017. Each party (and M.) who is entitled to
notice of and to bring an Application for an Openness Hearing shall within
10 days of the receipt of the above written confirmation of the Agencys
intent t place, serve electronically or by FAX, his/her Application for an
Openness Hearing on each of the other counsel and M. and such service
shall be good and sufficient service as required by the Rules of Court and
the Legislation.
(d) All four counsel and M., and/or her counsel, shall participate in a telephone
conference call with me on April 3, 2017 at 9:00 a.m. as arranged by Mr.
Boich and my trial coordinators office (allow 1 hour) to manage the
logistics and details of the expected and impending Openness Hearing.
(e) Each party shall prepare/serve (by fax or email) and file an affidavit of one
witness each, which affidavit shall serve as his/her evidence-in-chief at the
Openness Hearing, on or before April 28, 2017 at noon. M. may use her
first name only on her affidavit (in order to try to protect her anonymity).
(f) The Agency shall choose a primary worker to inform herself of the Agency
file and to swear an affidavit setting out the Agency position and the
evidence upon which it relies. Mr. Perrault will do likewise (including
evidence from childs therapist if K. is still receiving some from Mrs.
Harvey) M. shall also prepare, serve electronically or by FAX and file her
affidavit setting out her then position with regard to
openness/access/contact.
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(g) At the hearing, each other counsel (including M.s counsel, if she so chooses
to be represented or to attend the Hearing), may cross examine each/every
deponent for up to 60 minutes. The deponents own counsel may then re-
examine him/her for up to 30 minutes.
Costs
[97] In its factum, the Agency formally sought costs of the Appeal, and perhaps (it is not clear
to me) may also be seeking to make submissions for an order for costs for the trial as well.
[98] In any event, in light of my finding of incompetence of co-trial counsel, Ms. Gratl and
Ms. McKenzie, and as t32here is a real and serious possibility that any of the Agency/OCL or
either parents counsel may also seek costs against a government agency as per Rule 24(2) of the
Family Law Rules and or against either Ms. Gratl or Ms. McKenzie or both personally per Rule
24(9) of the Family Law Rules, I direct that each counsel serve formal written notice personally
on any person he/she/it intends to seek costs against by way of motion, within 7 days of this date
(February 9, 2017) against that Agency, government institution, person or counsel. Of course,
Ms. Gratl and Ms. McKenzie, (if notice is given to them), will need time (as is allowed by Rule
24(9)) to retain counsel and/or notify his/her insurer, if she wishes. I will hold a telephone
conference call as arranged by Mr. Boich and my trial coordinator, Melissa Cox, on Friday,
February 17, 2017 at 2:00 p.m. to manage how (or if necessary) a costs hearing will proceed in
person or by written submissions and to set timelines for same/Facta/Books of Authorities, etc.
[100] I will make available today to each counsel a copy of these Reasons and my brief
endorsement.
[101] I again thank counsel for the professionalism and skill you have shown since you were
G.A. Campbell J.