The Children’s Aid Society of Hamilton v. E.M., 2010 ONSC 6421
CITATION: The Children’s Aid Society of Hamilton v. E.M., 2010 ONSC 6421
DIVISIONAL COURT FILE NO.: DC 01-166
DATE: 20101214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, HEENEY, MACKINNON JJ.
BETWEEN:
THE CHILDREN’S AID SOCIETY OF HAMILTON Respondent
– and –
E.M. and C.M. Appellants
J. Wood, for the Respondent
S. Garcea, for the Appellants
HEARD AT HAMILTON: November 19, 2010
ENDORSEMENT
[1] This is an appeal from the order of Stayshyn J. granting summary judgment and ordering that the child be made a Crown ward without access for the purpose of adoption. The appeal is dismissed. Although several issues were raised by the appellant in the Notice of Appeal and Factum, only one issue was raised in argument. The appellants submitted that the motion judge erred in finding that the parents had presented a joint plan of care when, in fact, the mother’s answer sought the return of the child to her care alone and the father merely supported her plan.
[2] The Superior Court of Justice addressed the standard of review for summary judgment made under the Family Law Rules[^1], in Catholic Children’s Aid Society of Toronto v. Y.K.[^2]. In summary:
the standard of review on an appeal of a summary judgment order is correctness, as most issues arising out of a summary judgment hearing are errors in law. Where an error in fact is alleged, the standard of review is less deferential than palpable and overriding error but more deferential than correctness as the judge’s decision is entitled to due respect.
[3] The motion judge correctly identified the test to be applied by him on the motion for summary judgment. He reviewed the evidence that the parties had placed before him for the purpose of determining whether there was a genuine issue for trial.
[4] This young child had been in care for her entire life, amounting to 23 months at the time of the motion. Given that she is under 6 years of age, the time provided by the Child and Family Services Act[^3] (“CFSA”) during which a society or temporary wardship could be made had already lapsed. Accordingly, there were only two viable options available to the court in this case. The child could be returned home to her mother under a supervision order (this was the plan proposed by the mother and supported by the father) or, the child could become a Crown ward. Because the child had already been found in need of protection in a prior application, the CFSA requires the placement decision to be made according to the best interests of the child. Thus the motion judge here was required to determine whether there was a genuine issue for trial as to which of these available plans was in the child’s best interests.
[5] On the record before us, we agree with the motion judge’s decision that there was no genuine issue for trial as to which placement would be in the child’s best interests.
[6] The appellants submit that the motion judge erred in referring to the parents as proposing a joint plan, whereas the parents had made it clear that they had separate residences and would not live together in order for the mother to obtain the return of the child. The motion judge knew this and referred to this in his Reasons. At page 71, he made direct reference to the proposed placement as being to the mother alone. We are satisfied that in describing their plan as “joint” the motion judge was referring to the fact that they were putting forward the same, one plan, namely that the child be returned to the mother. It is also clear from his Reasons that the motion judge directed himself to that part of the plan that left open a relationship between the parents, and that included the mother’s proposal that the father could have supervised access with the child with a view to working towards returning to live with the mother. This is clearly stated in the mother’s affidavit, as was her belief that the father posed no risk to the child. The motion judge was entitled to consider this in his determination as to whether there was a genuine issue for trial that returning the child to the mother could be in the child’s best interests.
[7] The appellants also submit that the motion judge erred in failing to consider the relationship between the mother and child, and the child and her half siblings, in determining whether there was a genuine issue for trial. We disagree. The motion judge did consider the child’s relationship with her mother and noted that the access visits were well attended and were good visits. He considered this factor but in his view, this factor alone was not sufficient to raise a genuine issue for trial. He noted the difference between exercising access and parenting a child on a full time basis. Given the age of the child, the length of time she had been in care and the ongoing relationship between the parents, the motion judge concluded that the mother’s positive access record did not raise a genuine issue for trial. While he may not have referred specifically to all of the evidence before him on these issues, he is not required to do so.
[8] The father admitted that he had an ongoing substance abuse problem that still required treatment. The mother denied that she did, but admitted to ongoing use of marijuana and had no persuasive explanation for why she tested positive in the medium range for cocaine in June 2009. The motion judge correctly identified the father’s history of serious criminal activity, substance abuse and mental health issues. The father has been receiving treatment for his issues and admits that more is required from him. He remains a “work in progress” and the motion judge was entitled to consider the risk posed to the child by the mother’s failure to recognize the risk that the father presented to the child at the present time in determining whether a genuine issue for trial did exist. Putting forward alternate pleadings, such as if required by the court or CAS she would break off completely with the father, does not reflect insight on the part of the mother into the serious issues confronting the father at this time.
[9] Having determined that there was no genuine issue for trial on the placement issue the motion judge went on to consider the mother’s claim for access to a Crown ward. In this regard he correctly directed himself to the CFSA, s. 59(2.1). That section places the onus on the parent to show two things, and in this case it could not be and was not shown that an order for access would not impair the child’s future opportunity for adoption. Therefore this aspect of the appeal also fails.
[10] For these reasons, we are not persuaded that the decision of the motion judge was wrong. To the contrary, in our view, he came to the correct decision. More than another full year has passed during which the child has not had access to her mother. She has never had any access to her father. The child requires finality and a permanent placement. It is regrettable that arrangements were not made to accelerate the disposition of this appeal as so doing would clearly have been in the child’s best interests.
Matlow J.
Heeney J.
J. Mackinnon J.
Released: December 14, 2010
CITATION: The Children’s Aid Society of Hamilton v. E.M., 2010 ONSC 6421
DIVISIONAL COURT FILE NO.: DC 01-166
DATE: 20101214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, HEENEY, MACKINNON JJ.
BETWEEN:
THE CHILDREN’S AID SOCIETY OF HAMILTON Respondent
– and –
E. M. and C.M. Appellants
ENDORSEMENT
Matlow J.
Heeney J.
J. Mackinnon J.
Released: December 14, 2010
[^1]: O. Reg. 114/99, s. 16 [^2]: [2007] O.J. No. 3080, aff’d 2008 ONCA 27, [2008] O.J. No. 137 [^3]: R.S.O. 1990, c. C.11