L.H. v. Catholic Children's Aid Society of Toronto

L.H. v. Catholic Children's Aid Society of Toronto Collection Decisions of the Court of Appeal Date 2011-05-18 Neutral citation 2011 ONCA 385 Docket numbers C52682 Judges Armstrong, Robert Patrick; Juriansz, Russell G.; Watt, David Subject Family Decision Content 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 child’s parent or foster parent or a member of the child’s 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 Children’s Aid Society of Toronto Applicant(Respondent) and M.H. Respondent(Respondent) L.H., acting in person Carolyn Leach, for the Office of the Children’s lawyer Chris Andrikakis, for the respondent Catholic Children’s 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 Children’s Aid Society of Toronto, (the “Society”) made an order that the appellant’s two children should remain in the custody of their father for six months, under the Society’s 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 Society’s 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 court’s 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. Amin’s 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 mother’s custody was necessary to ensure they had a relationship with the father. Zuker J. accepted Dr. Amin’s evidence. The appellant’s 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. Amin’s 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 appellant’s 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 appellant’s 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 court’s endorsement of August 21, 2009. He decided to entertain the Society’s 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 appellant’s 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. Amin’s 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 appellant’s] 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 appellant’s 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 children’s well-being. [13] Even though Brownstone J. concluded that Dr. Amin’s 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. Amin’s 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 children’s 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 mother’s 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 Zuker’s reliance on his assessment report. She is unwilling or unable to understand that Justice Zuker’s 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 children’s needs now. We cannot turn back the clock. We have to look at the current circumstances and address the children’s 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 appellant’s 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 Children’s Aid Society of Toronto v. L.O. (1997), 30 R.F.L. (4th) 16, at para. 7, held that the Act’s 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. Amin’s 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 court’s 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 date…after 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 Children’s Lawyer representing the children supports the position of the Society and explained that the children wish to remain in their father’s 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 court’s 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 court’s 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 Brownstone’s 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 appellant’s position that Dr. Amin’s 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 appellant’s 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 Society’s 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 court’s 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 court’s endorsement. [25] To establish that the word “trial” in the court’s 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 court’s disposition and should never be treated as such. Reliance on the audio recording to interpret the court’s 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 Court’s 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 Court’s 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 court’s 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 court’s 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 appellant’s fresh evidence was admitted. Brownstone J. carefully considered that evidence and found, without viva voce testimony, that Dr. Amin’s 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 court’s 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 court’s order of August 21, 2009. He carefully considered the appellant’s fresh evidence and left no doubt that he found Dr. Amin’s assessment report was baseless. At this point, no party takes the position that Dr. Amin’s 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 appellant’s contest of Dr. Amin’s evidence has become moot. Nothing would be achieved by ordering another viva voce status review hearing to consider the appellant’s fresh evidence seeking to undermine Dr. Amin’s 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 children’s 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 children’s 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 court’s 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 court’s 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 appellant’s fresh evidence in order to undermine Dr. Amin’s 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