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CHILD PROTECTION - Practice and procedure - Courts - Jurisdiction - Statutory authority - Appeals and judicial review

Wednesday, December 20, 2017 @ 8:39 AM  

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Appeal by the Waterloo Children's Aid Society, cross-appeal by the parents, and cross-appeal by trial counsel from a Superior Court appellate ruling. The Society had longstanding concerns regarding the parents' drug use and mental health issues. Following a 17-day Ontario Court of Justice trial, the child, age ten, was found in need of protection and made a Crown ward with no access. The parents appealed the termination of access to the Ontario Superior Court of Justice. The appellate judge found that the trial judge did not err in analyzing the issue of access, but found that a miscarriage of justice occurred based on trial counsel's incompetence. The appellate judge apologized to the parents and granted them access to the child. Trial counsel was made personally responsible for costs. The Children's Aid Society, supported by the Children's Lawyer, appealed the access order. Trial counsel cross-appealed the incompetence finding and costs award. The parents cross-appealed and sought declaratory relief.

HELD: Children's Aid Society's appeal allowed; trial counsel's cross-appeal allowed; parents' cross-appeal dismissed. The appellate judge erred in overturning the no-access provision by failing to apply the correct standard of review. Having found no errors by the trial judge, there was no basis for appellate intervention. In addition, the fresh evidence did not support overturning the trial judge's decision. There was no evidentiary foundation for ordering access and no jurisdiction for the appellate judge to seize himself of an openness hearing. The appellate judge misinterpreted the correlation between the child's best interests and the mandatory requirements arising from the child's indigenous heritage. There was no evidence the parents had any connection to their culture or that the child was ever exposed to indigenous culture. There was no practical utility in the declaratory relief remedy sought by the parents. Having found that the Crown wardship order was correct, and that the trial judge did not err with respect to access, it was obiter and wrong in law to raise suggestions of an apprehension of judicial bias. Nothing in the parties' submissions substantiated the appellate judge's assessment in that regard. In addition, the appellate judge erred in finding ineffective assistance of trial counsel. Any such issue was moot given the finding of no error on the part of the trial judge. The finding and related costs award was reversed.

Children's Aid Society of the Regional Municipality of Waterloo v. C.T., [2017] O.J. No. 6324, Ontario Court of Appeal, J.L. MacFarland, D. Watt and M.L. Benotto JJ.A., December 1, 2017. Digest No. TLD-December182017006