Jewish Family and Child Service of Toronto v. J.Z., 2014 ONCJ 165

No. C57225/12 DATE: 2014-03-31 Citation: Jewish Family and Child Service of Toronto v. J.Z. , 2014 ONCJ 165 Ontario Court of Justice North Toronto Family Court 47 Sheppard Avenue East Toronto, Ontario M2N 5N1 IN THE MATTER OF The Child and Family Services Act, R.S.O. 1990, c. 11 AND IN THE MATTER OF : M.S. born […] 2003, and J.S., born […] 2005 BETWEEN : Jewish Family and Child Service of Greater Toronto Applicant - and - J.Z. (mother) and H.S. (father) Respondents Before Justice Robert J. Spence Motion Heard on 27 March 2014 Reasons released on 31 March 2014 Ms. Sara Westreich…………for the applicant society Ms.

Sheri Hirschberg ………for the respondent mother Mr. John Schuman …………for the respondent father Mr. Sheldon Wisener………for the Office of the Children’s Lawyer, legal representative of the children M.S. and J.S.

Nature of this Motion [ 1 ] This is father’s motion for an order that I recuse myself as the presiding judge in this trial, and that I declare a mistrial, as well as an order for costs thrown away as against the applicant society. [ 2 ] The applicant society, the mother and the children’s lawyer are all opposed to the father’s request for a mistrial. [ 3 ] The father argues that there are two reasons I should declare a mistrial: 1. The late disclosure, and lack of disclosure, of certain notes/information from the applicant society (“society”) has prejudiced the

father, and 2. One of the witnesses yet-to-be called, namely, Jennifer Shneer, is related to me, and this relationship will create an apprehension of bias if I continue as the presiding judge at trial. [ 4 ] For reasons which follow, I dismiss the father’s motion in its entirety. Background [ 5 ] On August 1, 2013 I conducted a Trial Management Conference, at which time a number of matters were reviewed with the parties, in preparation for the trial that was scheduled to commence on October 7, 2013.

It was on that date that Jennifer Shneer’s name first appears in my endorsement, as item number “8” in that endorsement, as follows: File notes from Jennifer Shneer (mother’s therapist) employed by [society]. Father seeks disclosure, society says there is a “wall” between the protection side [of the society] and the therapeutic side. Mother is opposed to disclosure in any event. [ 6 ] Ms. Shneer’s name next appears in the course of a subsequent telephone conference I conducted with all parties on September 23, 2013.

The purpose of that conference was to review and discuss a number of housekeeping matters prior to the commencement of trial. It was during that conference call that I disclosed to the parties that there might be a distant relationship between Ms. Shneer and me. [1] All parties stated in that conference call that this was not an impediment to my presiding at trial. [7] However, in order to give the parties an opportunity to further reflect on this issue, I instructed the parties that if any of them had a concern, they were to let me know by the end of the day. [2] In respect of Ms.

Shneer, my endorsement reads [emphasis in the endorsement]: Jennifer Shneer, mother’s therapist employed by [the society] – my disclosure that she may be a distant relative – if there is an issue, I to be notified by 14B [motion form] today . [8] No party subsequently filed a 14B advising that they had any concerns about a possible apprehension of bias on my part were Ms. Shneer to be called as a witness. [9] The trial began on October 7, 2013 and continued for 20 days until November 29, 2013.

The trial was then adjourned to January 20, 2014, so that the father could argue a Constitutional Motion regarding the delay which resulted from the proposed scheduling of the second stage of the trial.

The second stage of the trial is scheduled to resume on April 28, 2014, and to run intermittently for 43 days, until December 5, 2014. [10] The trial continued for one afternoon on January 23, 2014 in order to complete the testimony of one witness who had been testifying when the trial had previously been adjourned on November 29, 2013. [11] Subsequently, the parties attended on February 5, 2014 for all-day motions pertaining to various issues which had arisen during the course of the trial. [12] On February 21, 2014, the society delivered a 14B motion form advising the court that Ms.

Shneer would be testifying as a witness for the mother and, therefore, the society “seeks to inform the Court that counsel for the father has recently raised concerns about the familial connection between [the court] and [Ms. Shneer]”. The society attached an affidavit to the motion form, with various pieces of recent correspondence between the society’s counsel and the father’s counsel, as well as counsel for the mother. A review of that correspondence indicates the then-developing conflict with respect to the need to call Ms.

Shneer as a witness, and the impact of that on the court’s ability to assess her credibility at trial, given the familial relationship between the court and Ms. Shneer. [13] On the same day, February 21, 2014, father’s counsel filed his own 14B motion, asking the court to “refrain from taking any steps in relation to the motion filed by the [society] on February 21, 2014, until the father can file an affidavit on the issues”. [14] On February 24, 2014, the father filed an affidavit, setting out his concerns.

In the outset of that affidavit the father deposed: I am swearing this affidavit in response to the very troubling 14B motion brought by the applicant . . . and the even more troubling circumstances surrounding Ms. Shneer that give rise to that motion. I believe that the circumstances now make a fair trial impossible.

[15] On February 27, 2014, the father filed his 14B motion form seeking: 1. an order that I recuse myself from hearing this trial and a declaration that that there be a mistrial; 2. an order referring this matter to a “hearing before the Chief Justice of the Ontario Court of Justice to determine how the trial can be scheduled to proceed in an expeditious manner”; 3. An order that the society pay the father’s costs thrown away; and 4.

In the alternative, an order directing a hearing of the above issues. [16] The society, the mother and the Office of the Children’s Lawyer (“OCL”) all filed responding 14B motion forms, taking the position that the father’s motion should be dismissed. [17] As I was not prepared to deal with the recusal motion by form, I subsequently requested all parties to give me their available dates for the oral argument of this mistrial motion. Based on those dates, I then set the morning of March 27, 2014 for the hearing. [18] At the conclusion of argument, I reserved my decision.

The following are my reasons for concluding that the father’s motion must be dismissed. Issues [19] There are three issues: 1. Has there been either delayed disclosure or non-disclosure of documents or information, such that the father has been prejudiced in the presentation of his case? 2. If the father has been prejudiced by the delayed disclosure or non-disclosure, is the prejudice to the father such that a mistrial must be declared? 3. Is the relationship of the proposed witness to the court such that there would be a reasonable apprehension of bias were the court to continue to preside over this trial?

Issue #1 – Has there been non-disclosure or delayed disclosure which has prejudiced the father? a. The father’s position [20] The father asserts that there has been delayed disclosure, and even non-disclosure by the society. [3] This delayed disclosure or non-disclosure primarily centres on the notes of Jennifer Shneer. [21] The father argues that the society had an obligation to disclose Ms. Shneer’s notes because, according to the father, Ms.

Shneer, rather than acting simply as mother’s therapist, was actually involved either in making decisions directly pertaining to child protection matters, or consulting with those society workers who were responsible for making such decisions, including decisions regarding father’s access. The father says that this was contrary to what he was led to believe by the society prior to the commencement of trial. He says that the society always asserted that Ms. Shneer’s involvement as mother’s therapist was a discrete role, and limited to that therapeutic function only.

And it was for that reason that the father says he had decided not to pursue the production of Ms. Shneer’s notes, or to call her as a witness at trial. [22] In January 2014 mother decided that she would be calling Ms. Shneer to testify as part of her own case at trial. [4] Having made this decision, she then obtained Ms. Shneer’s notes and, on or about February 10, 2014, her counsel concurrently disclosed the notes to the other parties – the society, the father and the children’s lawyer. It was sometime afterwards, when the father reviewed those notes, that he says he formed the belief that Ms.

Shneer’s involvement in this case went beyond her capacity as simply mother’s therapist, and crossed over the line into active decision-making concerning child protection matters. [23] The father’s argument continues that the society knew, or ought to have known that Ms. Shneer’s notes had important child protection evidence that was relevant to the conduct of the trial and, accordingly, to the conduct of the father’s case, and to father’s ability to answer the society’s case at trial.

And because the father did not obtain those notes until February 2014, after more than 20 days of trial had taken place, the father has been prejudiced in his ability to adequately prepare for trial and to conduct his cross- examination of witnesses called by the society to date and who have now finished testifying.

[24] The father argues that three of the society’s witnesses who have already testified, would have been cross-examined differently byMr. Schuman had he known of the involvement of those witnesses in the discussions which he says took place between those societywitnesses and Ms. Shneer. [25] Finally, the father argues that the prejudice he has incurred is irreparable. That prejudice cannot be undone even by recallingthose three society witnesses and allowing father to conduct a focused cross-examination which addresses Ms. Shneer’s involvement inthe case.

He says that the recalling of these three witnesses would create too much confusion in the overall presentation of the evidenceat trial. b. The society’s position[5] [26] Not surprisingly, the society disagrees with the father’s characterization of the facts and events. First, the society has alwaystaken the position that although the child protection workers and the therapeutic employees are all employees of the Jewish Family andChild Services (“JFCS”), there is a “wall” or a dividing line between those two functions of the JFCS.

More specifically, the WomanAbuse therapeutic records are maintained separately from the child protection records, and the child protection workers have no accessto the Woman Abuse therapeutic records.

Those Woman Abuse records can be accessed by the child protection workers in only one oftwo ways: either the mother must consent to the release of her own Woman Abuse therapeutic records, or a court must order their release. [27] Until mother’s Woman Abuse therapeutic records were disclosed by her on or about February 10, 2014 to counsel for each of thesociety, the father and the OCL, the society had no knowledge of what was in those records.

In other words, the society saw thoserecords at the same time as the father. [28] The issue of mother’s Woman Abuse therapeutic records had long been a subject of controversy, well before the commencementof trial. In fact, as far back as March 16, 2013, the father expressed his wish that those records be disclosed.

The society responded thatthe counselling records from the Woman’s Abuse program were not within the society’s possession and they could not be releasedwithout either mother’s consent or a court order. [29] When the parties appeared before Justice Sherr on June 10, 2013, father again expressed his wish that the counselling records bedisclosed. In response, Justice Sherr invited the father to bring a production motion for those records. The society always took theposition that it would not oppose the father in any such motion, but would abide by any order of the court.

Of course, both the society aswell as the father knew that it would be open to the mother to oppose such a motion, given the sensitive nature of her therapeuticrecords. At no time did the father bring any such disclosure motion. [30] Subsequently, when the records were disclosed by the mother on February 10, 2014, the society then reviewed those records. Having reviewed those records, the society continues to assert the position it has taken throughout, namely, that Ms.

Shneer made nochild protection decisions, nor did she influence any such decisions in any interaction she may have had with the child protectionworkers. The society says that any such interaction between Ms. Shneer and the child protection side of the JFCS was limited solely tomother’s safety issues, which were relevant to Ms.

Shneer’s role as mother’s Woman Abuse counsellor. [31] Having reviewed those Woman Abuse therapeutic records, the society states that those records “seem to corroborate a pattern ofabuse and sexual abuse in the marriage.” Those records, combined with the fact that the father has long been on bail for charges ofassault and sexual assault against the mother, directly impact on the issue of mother’s safety during the transfers of the children at thesociety’s offices for father’s access visits. As well, father’s ongoing bail order requires him to maintain a distance of 200 metres fromthe mother at all times.

Accordingly, as mother’s Woman Abuse counsellor, Ms. Shneer was properly concerned about mother’s safetyand, to the extent that safety issues needed to be addressed on an ongoing basis, it was necessary for her to intersect with the protectionworkers from time to time. However, according to the society, the notes disclose that this was the limit of Ms. Shneer’s interaction withany child protection workers in this case. c.

Discussion [32] There can be no doubt[6] that the society is under a continuing obligation to make reasonable disclosure of documents andinformation within its possession so that the respondents can know what case they must meet at trial. Catholic Children’s Aid Society ofToronto v. S. (A.), 2007 ONCJ 596 , 2007 CarswellOnt 8280 (O.C.J.) [33] Because of that, if the society had in its possession any notes or information that were relevant to the issues at trial, it had an

obligation to disclose same to the other parties in a timely manner. [34] Was the society under an obligation to disclose Ms. Shneer’s notes? Leaving aside for the moment whether those notes are relevant to the child protection issues in this trial, the society always made it perfectly clear that it did not have access to those notes, that it had no knowledge of what was in those notes, but that it would not oppose production of those notes if father wanted to bring a production motion.

So, even if it were the case that the notes were in fact relevant, there was simply no ability by the society to obtain those notes, absent either mother’s consent or a court order. [35] The father submits that the society actively misled the father by asserting that there was a “wall” between the child protection side and the counselling side of the JFCS. And it was because he was misled that he made the decision not to bring a motion for production of Ms. Shneer’s therapeutic records. [36] If the society did mislead the father about the extent of Ms.

Shneer’s involvement in this case, then arguably father’s position might have some merit. [7] However, in order for this court to conclude that the society misled the father (intentionally or otherwise), the court would have to conclude one of two things: either there was no “wall” between the child protection side of the JFCS, and that the protection workers in fact had access to the Woman Abuse counselling records or, alternatively, Ms.

Shneer was actively involved in making child protection decisions, or actively influencing the decisions of those workers who were responsible for making such decisions. [37] As to the first point, the father’s evidence in this motion does not undercut the society’s claim that it could not access the Woman Abuse counselling records without mother’s consent or a court order. Accordingly, I conclude the society was correct when it claimed it could not obtain those records, other than as described. [38] That takes me to the second point, whether Ms.

Shneer was actively involved in the child protection decision-making process, or whether she was somehow influencing those workers on the child protection side of the JFCS who were responsible for such decisions. Father’s argument can best be summarized by the following excerpt from a letter dated February 19, 2014, sent by Mr. Schuman to Ms. Westreich [my emphasis]: With regard to Ms. Shneer, counsel for JFCS and the evidence of its witnesses was that the child protection staff did not communicate with Ms. Shneer about any matters of substance. Ms.

Shneer’s notes reveal that not only did JFCS protection staff do that, and that JFCS did not disclose that communication between Ms. Shneer and protection staff, but also that Ms. Shneer played an active role in the making of child protection related decisions . [father] relied on the representation by JFCS in formulating his position. [39] Given the nature of this assertion, I would have expected the father to include a number of examples of Ms. Shneer’s notes in his evidence to support the argument that Ms. Shneer in fact played such an “active role”.

What notes were included? [40] In fact, while father deposes that there are “several examples” of this kind of involvement by Ms. Shneer, the evidence provided by the father in this motion is the following: 1. Note prepared by Ms. Shneer on October 24, 2012, which states [my emphasis]: The children’s worker Karen W informed me that the Judge reserved judgment yesterday [8] and then called the lawyers today to say that the children would be returned to [mother] today under a supervision order. I informed my Manager Penny about this and the safety concerns that are alive in this situation .

We did a telephone consultation with Sascha from Talya’s office and it was determined that as [mother’s] worker, I would contact the Police to have her address red flagged due to the decision and heightened safety concerns . Penny and I did a telephone consultation with Wendy and informed her of the situation as well. Additional safety planning recommendations were made and for me to follow up on . 2. On the following day, October 25, 2012, Ms. Shneer sent an email to Ms.

Shimkovitz (a society worker on the child protection side of the JFCS) as follows [my emphasis]: I have been consulting with Penny and Wendy about a client of mine [mother]. It’s a woman abuse case and there are many safety concerns and things are on a heightened level right now because her children who were in foster care with the agency were returned to her yesterday and [father] won’t be happy with that outcome. He has a violent history, is determined to destroy her, has stalking behaviours, etc .

It’s been recommended that she be escorted to and from her car when she attends the Lipa Green building and here at the Promenade. Please advise me on the best way to contact security at both ends in order to put some plan in place for her . Thanks

[41] What followed from this email was a series of further emails over the next few days, between Ms. Shneer and various persons, including Ms. Shimkovitz and the JFCS Director of Finance and Corporate Services, as well as other individuals. The subject line of all of the emails was “ safety and security ”.

And each of those emails in the chain addressed this subject, more specifically in the context of such things as where mother would park when she arrived at society’s offices, and arranging for an escort for mother, to and from the society’s building. [42] This was the sum total of the notes/emails/documents involving Ms. Shneer that was included in the father’s evidence in this motion. [43] I return, then, to father’s assertion that “ Ms. Shneer’s notes reveal [she] played an active role in the making of child protection related decisions ”.

As I review the foregoing exhibits to father’s affidavit on this motion, I do not interpret the evidence in the way father suggests, such that it would substantiate this claim by father. I would be forced to read considerably into the notes and emails to even come close to finding evidence to substantiate father’s position. Rather, what I see is that Ms. Shneer, as the Woman Abuse counsellor, who was providing ongoing counselling to mother, in the context where Ms.

Shneer was aware that mother was the alleged victim of assault and sexual assault criminal charges currently outstanding against the father, was addressing the safety concerns she had for the mother. And she was concerned not only because the father was facing outstanding criminal charges against the mother but, also, because mother herself had apparently made similar such disclosures to Ms. Shneer about father’s behaviour toward her in the past. [9] [44] In my view, none of the foregoing evidence reveals that Ms.

Shneer “played an active role in the making of child protection related decisions”. [45] I wish to comment on a one-page excerpt from the transcript of the Trial Management Conference [10] which took place before me on August 1, 2013. This page was part of the father’s evidence in this motion. That excerpt reveals the following: In response to my questions, “Who is Jennifer Shneer? [and] Is she employed by the society? Ms. Westreich responded in part [my emphasis]: The Woman Abuse Counselling is a separate wing, it’s not part of the child protection and contrary to what Mr.

Ludmer [11] has suggested, there has been a wall erected between the child protection and this counselling service, there has not been any kind of consultation . [46] I infer from the father’s argument that the society’s assertion that “there has not been any kind of consultation” was untrue (knowingly or otherwise), as the notes and emails disclose at least some kind of “consultation” between the Woman Abuse side and the child protection side of the JFCS, as discussed above. [47] I do not wish to get too deeply involved in a semantic analysis of the word “consultation”, other than to state that the father’s argument about consultation is not about consultation in the broadest sense of the word but, rather, consultation on substantive matters pertaining to child protection decisions, whereas the society has always taken the position that any consultation or contact which did occur, was only for the limited purpose of addressing safety concerns which are directly tied into the Woman Abuse side of the JFCS. [48] Before I leave this issue, I feel it is necessary to discuss the father’s argument on the motion that even if the society did not have an obligation to disclose Ms.

Shneer’s notes [12] , the mother herself had an obligation to make such disclosure. [49] As I discussed earlier, while it is beyond debate that the society has an obligation to make disclosure to permit respondents to know the case they have to meet, and to properly prepare for trial, the father argues that respondents themselves have a similar obligation as regards the other respondents in a child protection case. So, in effect, according to father, the mother had an obligation to obtain Ms.

Shneer’s notes at the outset of the case and to disclose them before trial, rather than after more than 20 days of evidence has elapsed. [13] [50] I asked Mr. Schuman whether he had any authority for such a proposition, and he replied that he did not. In child protection cases where courts have imposed disclosure obligations, the only such cases I am aware of are those where the obligations have been imposed on the society , as a quasi-state actor, toward the parents, or other respondents.

These disclosure obligations are imposed on the society for understandable reasons; the society is a representative of the state and it has the statutory power to ask a court to permanently sever a parent-child relationship. Such power brings with it a concomitant obligation to make full disclosure, so that the respondents will fairly know the case to meet at trial. [51] In any event, I do not find it necessary to engage in a legal analysis of whether respondents have similar disclosure obligations as societies, for the following reason. As I stated, Mr.

Schuman strenuously argued that the mother has a disclosure obligation toward the father. However, in the same breath, Mr. Schuman acknowledged that the father himself is under no such obligation, or that if the father

is under a similar obligation, he has no intention of complying with that obligation. [52] Even before the start of this trial, Justice Sherr ordered the father to disclose certain records pertaining to his rape conviction in Utah, in or about 1985, and the father’s hospitalization in the Utah State Hospital in a diversion program for sex offenders. The father had been sentenced to a term of five years to life in the Utah State Penitentiary following his rape conviction. However, he subsequently agreed to serve three years in that psychiatric hospital in exchange for a remission of his prison sentence.

Although that rape conviction and the psychiatric disposition were very historical, the society requested – and Justice Sherr ordered – disclosure of the father’s psychiatric hospital records, given that father had since been charged more recently with offences in Canada, including sexual offences against the mother. Those sexual offences remain outstanding. [53] In addition to those outstanding offences, the society was aware that a woman by the name of T.

J. had come forward to the Toronto Police Services and disclosed that while she was having sex with the father in 2012, the father asked her what she would think of a 10 year old performing oral sex on her. [14] [54] It was in the context of the foregoing [15] that Justice Sherr concluded that all of father’s criminal and psychiatric hospital records pertaining to father’s rape conviction in Utah must be disclosed by father, notwithstanding the historical nature of those records. [55] Mr.

Schuman, on behalf of father, candidly acknowledges that father is resolutely refusing to make that ordered disclosure, but nevertheless asserts that mother was under an obligation to disclose her Woman Abuse counselling records to the father. [56] In the context of this child protection proceeding, I cannot see how mother’s Woman Abuse counselling records can be placed on the same footing as father’s Utah State psychiatric hospital records emanating from a conviction of rape.

Moreover mother was never ordered to produce her counselling records; and it was not until she decided in January 2014 that she would be calling Ms. Shneer as a witness at trial, that she requested – and immediately disclosed – those records to all of the other parties. [57] On the other hand, father was ordered to produce his records, but has steadfastly refused to do so. The father remains in breach of a court order for production . As such, he comes to court with unclean hands, seeking a mistrial for mother’s non-disclosure when he himself has continuously refused to abide by a court order to do so himself.

He says he has been prejudiced by non-disclosure while, at the same time, he actively refuses to do what the court has told him he must do. [58] Accordingly, without deciding whether one respondent in a child protection case has a disclosure obligation to another respondent, in the particular circumstances of this case, I would not have been inclined to find fault with the mother for the way in which disclosure of Ms. Shneer’s notes ultimately transpired.

In my view, it would be a perversion of the administration of justice if I were to make such a finding against the mother while, at the same time, simply ignoring father’s wilful disobedience of a long-standing court order. [59] Returning then to the alleged non-disclosure by the society, the onus is on the father to prove on a balance of probabilities that the society misled father [16] and that, in fact, Ms. Shneer was involved in substantive decision-making in child protection matters, or that she directly influenced those who were responsible for such decisions.

As my earlier discussion reveals, the father has failed to discharge his evidentiary burden on a balance of probabilities. [60] I find, first, that the society did not fail in its legal obligation to make reasonable disclosure to the father and, second, that the mother’s subsequent disclosure of Ms. Shneer’s notes on or about February 10, 2014 has not prejudiced the father’s ability to meet his case at trial.

Issue #2 – If there has been prejudicial non-disclosure or delayed disclosure, does this require the court to declare a mistrial? [61] In the event another court decides that I have erred, and that there was prejudicial non-disclosure, or late disclosure, I turn to the question whether the appropriate remedy is to declare a mistrial. [62] The test for whether a mistrial ought be declared in any case is set out by the Ontario Court of Appeal in R. v. M.Q. , 2012 ONCA

224 (ONCA) , where the Court stated at paragraph 39: A [trial judge’s] decision to proceed [must be] consistent with the interests of justice and the maintenance of public confidence in the fairness of the trial. [63] Simply put, if this test cannot be met then a mistrial must be declared. [64] However, a mistrial will only be declared as a last resort. The father’s factum references the case of Tupper v. Van Rooy , 2006 CarswellOnt 2057 (Div. Ct.) .

In that case, the trial judge declared a mistrial following her finding that the defendant had engaged in misrepresentation as well as a breach of disclosure obligations stipulated in the Rules of Civil Procedure. Notwithstanding those findings, the trial judge still looked for “any conceivable way to save the trial” and, finding none, she then declared a mistrial.

At paragraph 15 [17] , the court stated [my emphasis]: . . . if an issue arises in a judge alone civil trial that may result in a mistrial, options should be canvassed to see if the trial can be saved, so long as the continued trial and measures imposed are fair and just in the circumstances .

If this test cannot be met . . . the trial judge may have no alternative in his or her discretion but to order a mistrial. [65] A review of the other cases cited by the parties regarding the issue of mistrial, and in what circumstances a judge might declare a mistrial, reveals that the question of whether a judge should order a mistrial is very much fact-driven. See for example Carbone v. De La Rocha 1994 CarswellOnt 6164 (Ont. Gen. Div.) . [66] As I previously stated, in my view the society has complied with its disclosure obligations in this case, insofar as Issue #1 is concerned.

Child protection cases are fluid; so long as the father’s access remains supervised by the society, so long as the parents continue to interact with society workers, and so long as the society complies with its statutory obligations to observe the parents’ behaviour in the context of risk analysis and best interests, there will undoubtedly be facts and documents that the society will continue to generate, facts and documents that the society will be under a continuing obligation to disclose. The society states that it is in fact continuing to make disclosure to the father as the case unfolds. In Ms.

Westreich’s letter dated February 14, 2014, addressed to Mr. Shuman [18] , Ms. Westreich asserts that “I am advised by my legal assistant that counsel have now received disclosure up to January 30, 2014. The court has no evidence to the contrary. [67] That said, if , as this trial continues to unfold, it appears to the court that appropriate and timely disclosure is not being made, or that the disclosure is incomplete, my first obligation is to look for “any conceivable way to save the trial”.

If that means that a brief adjournment or recess must be granted, or that a witness may have to be recalled on a particular issue, the court will proceed accordingly, so long as those steps [19] can be taken without doing an injustice to the overall conduct of the trial and the interests of justice. [68] As things presently stand, the trial will not be resuming until April 28, 2014, still several weeks from now. And when the trial does resume, the society will be continuing with its own case in chief.

The father need not embark on his case in chief for weeks, possibly longer, from the date of release of this decision.

In other words, there is still considerable time between now and the commencement of father’s case in chief, time which will permit father to contemplate the structure of his proposed evidence and the manner in which he would like to present it at trial. [69] If, when the trial does resume on April 28, 2014, father is able to persuade me that his cross-examination of society witnesses to date has been prejudiced by the notes which he says are only now being disclosed to him, [20] one possible order that the court can make is to have that witness(

s) recalled for the purpose of addressing that issue viva voce . Any order which the court may make will be dependent upon the facts and the findings I make following the resumption of trial, in the event this situation should arise. [70] Mr. Schuman argues that the prejudice cannot be cured simply by recalling witnesses to testify. In this regard, he relies in part on Onuselogu v. Okeke 2011 CarswellOnt 9453 , a decision of Madam Justice Penny Jones of the Ontario Court of Justice.

In that case Justice Jones declared a mistrial because the respondent father had failed to file a timely financial statement and a new medical report, both of which were in his possession, following a four-month adjournment of the previous five days of trial. The applicant mother had already closed her case, and Justice Jones held that to produce a new medical report after she had closed her case, and with no Evidence Act compliance, and no notice to the mother was “simply inexcusable and severely prejudiced the applicant”.

At paragraph 13, Justice Jones stated [my emphasis]: The evidence adduced was already extremely confusing and disjointed . [71] And because of this, combined with the non-disclosure , Justice Jones continued, at paragraph 14 [my emphasis]:

In these circumstances , I decided that I would be unable to address the unfairness to the applicant or the best interests of the children without declaring a mistrial, thereby allowing the matter to proceed to a new trial where all the evidence would be considered and timely disclosure would occur. [72] In relying on that decision, the father in this case argues that to recall the society witnesses, if such were ordered by the court, would be too confusing, and would prevent the court from obtaining an orderly flow of evidence, which is necessary to permit the court to fully grasp that evidence and render a fair decision at the conclusion of trial. [73] I certainly understand that there are cases where simply recalling witnesses will not be sufficient to cure a prejudice which a party has suffered.

However, that will be very much dependent on the facts of the particular case. In Justice Jones’ case, the trial evidence had already been “extremely confusing and disjointed”, and she concluded that it would become even worse were the trial allowed to resume. [74] The facts in that case are not at all similar to the facts of this case. The evidence in this trial has not been either confusing or disjointed.

Nor am I persuaded, at this stage of the proceedings, that the recalling of witness (if that becomes necessary) would in fact create the kind of confusion that led to the declaration of a mistrial in Justice Jones’ case. [75] In making any orders following the resumption of trial, it will be left to the court to determine what order, if any, best meets the “interests of justice and the maintenance of public confidence in the fairness of the trial”.

And having regard to those considerations the court will not lightly declare a mistrial when resultant delay would likely add about another year to the trial process. [21] [76] Delay not only impacts on the parties directly but, more importantly, it impacts on the children. The Child and Family Services Act is remedial legislation; and one of the objectives of this legislation is to address protection concerns in a timely manner. [22] I am mindful that it was the father himself who argued a Constitutional Motion before the court on January 20, 2014.

The essence of that motion was the delay that father complained of in the scheduling of the second stage of the trial, set to begin April 28, 2014. Father’s position on that motion was that this scheduling constituted a breach of his rights under the Charter of Rights and Freedoms . And one of the orders father sought in that motion was a dismissal of the protection application.

While I subsequently dismissed that motion [23] , it would be indeed ironic if the very thing father complained of in that motion, namely, delay, became the central feature of this motion, by the declaration of a mistrial, at the father’s own instance. [77] Nevertheless, the overriding consideration in any trial process is that the trial be fair and that it not be seen to undermine public confidence in the administration of justice.

Accordingly, notwithstanding the fact that lengthy delay would clearly ensue were a mistrial to be declared, this court would not hesitate to declare a mistrial if the interests of justice and the need for a fair trial process required such an order to be made. [78] However, at this stage of the proceedings, the court is of the opinion that there is no basis to make such an order. Issue #3 – Does the attendance of the proposed witness at trial create an apprehension of bias? a. Who is Jennifer Shneer? [24] [79] As I stated earlier, the proposed witness is a person by the name of Jennifer Shneer.

Although I notified all parties prior to the commencement of trial that Ms. Shneer “may be a distant relative” of mine, I believe that is the extent of the parties’ information about my familial relationship with Ms. Shneer. It is interesting and noteworthy that before bringing a motion for a mistrial on the basis of a claimed apprehension of bias, the father did not seek to ascertain more about that familial relationship. Obviously a familial relationship can run the spectrum, from close to distant. [80] The fact is that even if I were to see Ms.

Shneer in the witness box, I could not be 100% certain that she is the person who may be related to me without actually speaking to her directly and confirming that relationship. That is because I have no active relationship with her whatsoever, not having seen her, for a very long time, likely decades [25] . If she is indeed the person who I expect is related to me, she would be the daughter of my stepmother’s cousin. If my understanding of familial labelling is correct I believe that would make her my step-second cousin.

[81] During the course of argument I asked Mr. Schuman whether the nature of my familial relationship with Ms. Shneer had anybearing on his argument. In other words, did it matter that I might be very closely related to her, or that I might be only a very distantrelative? He responded that it did not matter. [82] According to Mr.

Schuman the mere fact of a relationship, any relationship, no matter how distant or remote, might cause a trialjudge, perhaps even unwittingly, to either favour that witness because of family dynamics or, conversely, to go out of his way to treat thatwitness more harshly in an effort to demonstrate that no bias exists. In either event, Mr. Schuman argues, the judge would not betreating the testimony of that witness fairly and in an unbiased way. [83] In my view, that argument falls within the realm of speculation only.

As the case law will demonstrate it is not the law that afamilial relationship per se, creates a reasonable apprehension of bias. I will return to this later in this

section of my reasons. [84] As I noted earlier, when I first became aware of Ms. Shneer’s identity as someone connected to the JFCS in this case, I made thefact of a possible relationship known to all the parties during a telephone conference on September 23, 2013. All of the parties took theposition that given the nature of my disclosure, they saw no impediment to my presiding over this trial. [85] In his motion, the father states that he initially had no objection to my presiding over the trial because he believed there was a“Chinese Wall”[26] between Ms. Shneer and the child protection workers at the society.

His original intention, he says, was not to callMs. Shneer as a witness because he believed her involvement in this proceeding was limited strictly to acting as mother’s therapist, andnot a person who was involved in making decisions pertaining to child protection matters. He says he subsequently discovered otherwise when he received certain disclosure documents from the mother’s counsel.[27] b. The law [86] In Bailey v. Barbour, 2012 ONCA 325, the Ontario Court of Appeal considered the law of apprehension of bias.

In that case, thetrial judge’s wife was closely connected to the litigation, the Court stating that the wife’s “connection to the [subject] property is deepand current and multi-layered”. The Court discussed the law and, beginning at paragraph 17, stated [my emphasis]: [17] This test was first articulated by Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. Canada (NationalEnergy Board), (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, at p. 394 S.C.R.

Ever since, the Supreme Court ofCanada has consistently endorsed the standard . . . although the court has also sought from time to time to clarify and develop it. [18] Thus, for example, in his reasons in R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J.

No. 84, Cory J.explained, at para. 111, that the test set down by Grandpré J. contains a "two-fold objective element": not only must the personconsidering the alleged bias be reasonable, but "the apprehension of bias itself must also be reasonable in the circumstances of the case".Cory J. added, at para. 113, that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefullyconsidered since it calls into question an element of judicial integrity.

Indeed an allegation of reasonable apprehension of bias calls intoquestion not simply the personal integrity of the judge, but the integrity of the entire administration of justice. [19] In addition to this "high" threshold set out by Cory J., the Supreme Court has made clear that, in those cases where a party seeks therecusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of judicial impartiality.Moreover, "in any case where the impartiality of a judge is in question, the appearance of the matter is just as important as the reality” . .. . [20] In Metropolitan Properties Co. (F.G.C.) Ltd. v.

Lannon, [1968] 3 All E.R. 304, [1969] 1 Q.B. 577 (C.A.), at p. 310 All E.R.,[page166] Lord Denning M.R. stressed the importance of the appearance of judicial impartiality. He put the matter this way: [I]n considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself . . . . It does notlook to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at theimpression which would be given to other people.

Even if he was as impartial as could be, nevertheless, if right-minded persons wouldthink that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. [87] Father cites the case of Lacey-House v. Lambert 2013 CarswellNB 372 (N.B.C.A.). The main thrust of father’s argument inreferring to that case is the principle that the consent of the parties cannot justify a judge continuing to preside in a case wheredisqualification is the proper path. [88] At the outset, I wish to make it clear that I agree entirely with the correctness of that principle.

In other words, if in fact thejudge would conclude a reasonable apprehension of bias exists, based on the principles in the above-noted case law, that reasonableapprehension of bias cannot be cured simply by all counsel agreeing otherwise.

[89] One of the grounds of appeal in Lacey-House was that the motion judge had refused to recuse himself, thereby creating anapprehension of bias. The Court of Appeal allowed the appeal on that ground, finding that the motion judge erred in failing to recusehimself because, inter alia [my emphasis]: The motion judge not only knew, but used to work with, the respondent’s new husband. In spite of what was written in the decision,nowhere in the transcript does it appear the motion judge made this connection known to the appellant.

By the motion judge’s own admission, his connection with the respondent’s new husband was perhaps “more important” than his priorcontact with the respondent herself through the shared activities of their respective children.

The motion judge had been city solicitor for the municipality which employed the respondent’s new husband as a by-law enforcementofficer, which suggests a closer working relationship between the two than merely having an employer in common. [90] In the particular factual circumstances of that case it is not difficult to understand why the Court of Appeal reached its conclusionthat an apprehension of bias would arise, given the connection between the motion judge and the respondent’s husband. [91] In arriving at this conclusion, the Court of Appeal reviewed not only the relevant case law, but also the Canadian JudicialCouncil and the Ethical Principles for Judges. [92] In that regard, as the Court of Appeal noted, the Commentaries on Judicial Conduct states, at paragraph 20 [my emphasis]: It is not suggested that consent of the parties would justify a judge continuing in a situation which he or she felt that disqualification wasthe proper path.

The issue of consent, therefore, arises only in those cases in which the judge believes that there is an arguable pointabout disqualification but in which the judge believes, at the end of the day, a reasonable person would not apprehend a lack ofimpartiality. The judge should make disclosure on the record and invite submissions from the parties in two situations.

The first arises if the judgehas any doubt about whether there are arguable grounds for disqualification. [The second situation is not applicable to this case]. [93] However, as the Court of Appeal observed, this is not the approach that was taken by the motion judge in the case it wasreviewing. Rather, as the Court noted at paragraph 19 [my emphasis]: The transcript reveals the motion judge essentially placed the decision as to whether or not he would proceed to hear the case squarely inthe hands of the appellant. With respect, such an approach should not be encouraged.

The decision of whether or not to recuse rests withthe judge and the judge alone. [94] What I take from this decision is that inviting submissions from counsel is appropriate where the judge has any doubt but, thedecision rests not with counsel, nor on the footing that counsel may or may not consent to the judge continuing to preside but, rather withthe judge alone.

As the Court points out, counsel should not be placed in the awkward position of knowing that if they fail to consent tothe trial judge continuing to preside, it will be because of that counsel alone that the trial judge is then forced to recuse himself. See alsoR. v. Lake (2001), (ON CA), 146 OAC 293 (ONCA). [95] As I stated earlier in these reasons, I made the disclosure of a likely relationship connection prior to the commencement of trialand then invited any party who had a concern about this connection to advise me, both during the telephone conference, and later by 14Bmotion form.

I was not seeking the consent of the parties, but only submissions as to whether there was a concern by any party. No oneexpressed any concern about my ability to continue to preside in the circumstances of my disclosure. [96] However, that invitation to counsel was only the first piece of the equation. The second piece was the issue of whether, in mymind, there was reason to believe that I could not continue to preside given the nature of my connection to Ms. Shneer. [97] In fact, while there was virtually no doubt in my mind that the nature of my connection with Ms.

Shneer would not give rise to anapprehension of bias, it was strictly out of an abundance of caution that I made the disclosure to all parties on September 23, 2013, andinvited them to let me know if any of them perceived that to be an issue. [98] Not having received any objections or stated concerns from any of the parties, and not having any meaningful doubt myselfabout my ability to preside at trial, the process simply moved forward to the point where there has now been about 21 days of evidenceat trial, before the father, for the first time, raises this concern about my relationship with Ms. Shneer.

[99] Accordingly, while I agree with the principle stated in the father’s factum, namely, that consent of the parties does not relievefrom a situation that would otherwise give rise to an apprehension of bias, it was not my view at the time of my disclosure that the natureof my familial connection with Ms. Shneer would in fact create such an apprehension of bias. [100] I return to the argument raised by Mr. Schuman that the mere fact of a familial relationship is sufficient to create a reasonableapprehension of bias, regardless of the nature or quality of that familial relationship.

In that regard, I devote some attention to BoardwalkReit LLP v. Edmonton (City), 2008 ABCA 176. In that case, the Alberta Court of Appeal discussed at length the kinds of circumstanceswhere a judge may be disqualified from hearing a case based on who the witnesses or the lawyers in the case might be. Under theheading in the reasons entitled “Improper Jumps in Reasoning”, with a sub-heading “Mechanical Rules”, and beginning at paragraph48, the court states: [my emphasis]: In this area, it is important to proceed rationally, examining actual facts.

One must neither rely on mere labels, mental rubber stamps, normechanical rules. One must weigh rationales, justice, and practicality, and not lose sight of them. . . . The standard is the hypotheticalinformed observer, who must “view the matter realistically and practically – and having thought the matter through”.

The law does not let judges sit in judgment over their spouses or close relatives . . . because of friendship, knowledge or maintainingfamily harmony . . . [101] And beginning at paragraph 57 [my emphasis]: Mechanical connection rules would cause retroactive attacks on judgments, causing great expense and delay. . . . This fallacy [that onecan simply apply an automatic rule regarding relationships] is worse than inconvenient and unworkable. It is all mindless technicalities.

Conflicts of interest are not extension cords, which can be plugged into each other until they are hundreds of metres long. [102] The fallacy in father’s position is just that. He is applying a “mechanical rule” which, according to him, means that any familialrelationship, whether close or distant, regardless of any other factors, should result in the disqualification of a judge. [103] I refer as well to the decision of Justice Paddy A. Hardman in Children's Aid Society of Waterloo Region v. B.(L.-A.), 2004 ONCJ235 .

In that case, during the course of trial the court became aware that it knew a former foster mother of the subject child, andthrough the foster mother, had met the child herself on two occasions, once at a church picnic and a second time when she visited thejudge’s cottage with the foster mother, both events occurring about two years previously. [104] The judge pointed this out to all the parties, and they all responded that given the nature of the contact, as well as the passage oftime, no one had any concerns about the judge proceeding with the trial. [105] Subsequently it was the mother, in the midst of trial who raised an objection to this, as well as to some comments by thegrandmother during an access visit with the child.

As a result, the mother brought a motion seeking a mistrial. [106] In the course of her reasons, Justice Hardman conducted an extensive review of the law. I extract from her decision a number ofsalient observations and principles[28] [my emphasis]: [at paragraph 28] recusal is not warranted merely by a trial judge’s raising the possibility of an apprehension of bias.

For a [judge] todisqualify himself on trifling or invalid grounds obviously raises concerns about wasted resources and delay with the attendant risk ofinjustice. [at paragraph 31] trial judges must be careful not to accede to motions for recusal where the facts do not raise a reasonable apprehensionof bias. [at paragraph 55] Further, it has been noted by a number of courts, including the one in Children’s Aid Society of Durham Region v.Catherine W. and Keith W. (ON CJ), (1989), 72 O.R. (2d) 711, [1989] O.J. No. 3145, 1990 Cars​well​Ont 2711 (Ont.Prov. Ct., Fam.

Div.), that often the trial judge is drawn toward recusing himself or herself out of an abundance of caution. However, thelaw is clear that to do so without having the onus met may result in prejudice to other parties or the system in general. See Marchand(Litigation guardian of) v. Public General Hospital of Chatham (1999), 86 A.C.W.S. (3d) 531, 92 O.T.C. 8, [1999] O.J. No. 670, 1999Cars​well​Ont 715 (Ont. Gen. Div.).

The law requires the threshold to be met before a judge recuses himself or herself. [107] This second cite from Justice Hardman’s decision is particularly noteworthy because sometimes judges will be overly cautiousand grant recusal motions, even where the facts may not justify such an outcome, just to be “on the safe side”. This case cautions judgesagainst such an approach unless there is a “reasonable” apprehension of bias because the granting of such a motion will inevitably resultin “wasted resources and delay with the attendant risk of injustice”.

[108] Based on the foregoing, the question I must ask myself is whether a reasonable person, considering all of the circumstances of this case, would perceive that there is a real likelihood that I would be biased, or would appear to be biased, if I were to continue to preside in this trial. [109] What are all those circumstances? [110] First, I initially sought input from all counsel whether they perceived this would be a problem in the event Ms. Shneer were to be called as a witness. All counsel stated that my relationship with Ms.

Shneer would not be an impediment to my acting as the trial judge. [111] As I discussed earlier, while this consent, pre-trial, is clearly not conclusive of the matter, it is certainly a factor which is deserving of some weight, particularly in the circumstances of this case. More specifically, whatever factual disclosure I made to counsel during that telephone conference on September 23, 2013, has not turned out to be either incorrect or mischaracterized. In other words, the father’s objection now, does not arise from any newly-acquired facts about the nature of my relationship to Ms.

Shneer. [112] Furthermore, it is one thing for a judge to recuse himself before that case even begins , and another thing to ask the judge to recuse himself after more than 20 days of trial, with 43 additional days scheduled before that very judge. Obviously, if I were to recuse myself, then all of the prior trial dates would be for nought, and all of the future trial dates would be vacated. And if this were to occur, it would certainly result in “wasted resources and delay with the attendant risk of injustice”. [113] Apart from the issue of delay, the “wasted resources” in this case would be enormous.

Leaving aside the cost to the public, in terms of court and court-related resources, there are four counsel involved in this case which, in itself, likely amounts to many thousands of dollars per day in legal fees. There have probably been in excess of 25 court days spent by counsel on this matter if one includes pre- trial conferences, motions and trial dates. This is all in addition to the countless hours that all counsel would have cumulatively spent preparing for each day of trial.

The cost of all of this would quite simply be staggering if the court were to declare a mistrial. [114] In terms of the delay, if a mistrial were to be granted then, as I stated earlier, the very thing that father complained of in his Constitutional Motion, namely, the delay ensuing from the scheduling of the second stage of the trial, would be exacerbated in the most extreme way imaginable. As I previously noted, it would likely set the clock back on this proceeding by at least one year . [115] As Justice Cory noted in R. v. S. (R.D.) , supra, “there is a strong presumption of judicial impartiality”.

And, because of that, the “threshold for a finding of real or perceived bias is high”. [116] Insofar as the Issue #3 is concerned, the question I must decide is whether a reasonable person, fully informed of all the facts in this case, as well as the applicable law, and an understanding of how the judicial process works, would reasonably conclude that there was a reasonable apprehension of bias.

That reasonable person, in order to make a fully informed decision about whether there might be a reasonable apprehension of bias, would first be aware of all the foregoing. [117] In addition, that reasonable person would then need to know that Ms.

Shneer is not any of the following in relation to the judge: not a blood relative; not a friend; not a person with whom the judge has a social relationship of any kind; not a person with whom the judge has had any contact for a great many years; not a person whose parents the judge has had any contact with for a great many years; not a person about whom the judge has any real knowledge, including whether she has a spouse/partner or whether she has any children; and not person who the judge would recognize if the judge were to encounter her on the street. [118] Knowing all of this, that reasonable person would inevitably conclude that the judge’s connection to Ms.

Shneer is highly tenuous at best – characterized only in terms of distant lineage. The connection – a step-second cousin – would be understood by the reasonable person to be merely a label, rather than a real or meaningful connection.

[119] That reasonable person would weigh this highly tenuous connection to the proposed witness, with the fact that judges are presumed to conduct themselves according to the highest standards of “judicial integrity and impartiality”. [29] [120] That reasonable person would understand that to disqualify a judge on the basis of such a tenuous connection, with the resultant exorbitant waste of resources, the excessive delay in the proceedings, and the concomitant injustice to the parties – most particularly to the children – would undermine the fabric of the administration of justice. [121] In my view, that reasonable person would conclude, on the basis of the foregoing, that there is no reason to be concerned about any reasonable apprehension of bias on the part of the court. [122] Accordingly, on Issue #3 the court concludes that the proposed attendance of Jennifer Shneer as a witness in this trial would not create the appearance of a reasonable apprehension of bias on the part of the trial judge.

Conclusion [123] On the basis of my analysis in these reasons, I reach the following conclusions: 1. There has been no non-disclosure or late disclosure by either the society or by the mother, such that father’s ability to reasonably and fairly continue with this trial has been prejudiced. 2. Even if the lack of disclosure or late disclosure has prejudiced father, that prejudice can be remedied, at this stage of the proceedings, by orders short of declaring a mistrial. 3.

There will be no reasonable apprehension of bias created by the attendance of Jennifer Shneer as a witness in this trial. [124] Accordingly, the father’s recusal motion is dismissed. [125] Should any of the parties seek their costs in respect of this motion, I will require those parties to await the outcome of the trial, at which time I will give directions for any costs submissions. Justice Robert J. Spence March 31, 2014