CITATION: Children’s Aid Society of Northumberland v. K.S. and M.J. and J.S.L., 2012 ONSC 6847
DIVISIONAL COURT FILE NO.: 369/12
DATE: 20121210
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
INFORMATION CONTAINED HEREIN IS PROHBITIED FROM PUBLICATION
PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
RE: children’s Aid Society of Northumberland v. K.S. and M.J. and J.S.L.
BEFORE: Justices Kiteley, Swinton and Lederer
COUNSEL: Lorne Glass, for the Appellant
Chris Rous, for the Children’s Aid Society of Northumberland
Linda Feldman, Office of the Children’s Lawyer, for the child PJLL
HEARD AT TORONTO: November 30, 2012
E N D O R S E M E N T
Kiteley J.
[1] This is an appeal from an order dated March 24, 2011 made by Gunsolus J. granting summary judgment in which PJLL (born […], 2009) was found to be a child in need of protection pursuant to sections 37(2)(b), (10) and (11) of the Child and Family Services Act (CFSA).[^1] The motions judge made an order that PJLL was a Crown ward with no access.
Background
[2] The appellant KS is the grandmother of PJLL. MJ is the mother of PJLL and the daughter of KS. MJ and the father, JSL, are not participating in this appeal.
[3] MJ is also the mother of SL who is now 13 years old. In 2001, SL was placed in the care of KS under CAS supervision. In 2003, KS obtained an order for SL’s custody.
[4] When PJLL was born, a diagnosis was made that he was addicted to opiates, specifically morphine. He was apprehended by the CAS on December 24, 2009 while in hospital being treated for neonatal drug withdrawal. He has been in foster care since being released from hospital on December 30, 2009.
[5] On January 12, 2010, MJ was arrested and remained in custody until May 25, 2010.
[6] Immediately after the birth of PJLL, KS expressed an interest in being involved with her grandson’s care. During the time that MJ was incarcerated, the CAS welcomed KS in establishing a relationship with the child and arranged supervised and then unsupervised access several times a week.
[7] In February, 2010, Cynthia Robertson (Resource Worker with the CAS) met with KS to complete an initial in-home assessment interview for the purpose of considering her as a kinship caregiver for PJLL. The CAS also asked KS to participate in the PRIDE program, which is a mandatory training program intended to prepare prospective foster and kinship care providers for their roles.
[8] After MJ was released from custody, there was an incident in which KS barricaded herself and SL in a bedroom overnight to escape MJ’s aggressive conduct. The police were called. That incident demonstrated the high degree of conflict that has occurred between KS and MJ.
[9] In the course of an attendance before Ingram J. on April 23, 2010, the CAS advised that they would not support a plan of care that involved KS. In August 2010, the CAS terminated KS’s access to PJLL at the mother’s request.
Motion for Summary Judgment
[10] The CAS brought a motion returnable March 11, 2011 for summary judgment seeking a finding that PJLL was in need of protection pursuant to s. 37(2)(b)(i) and (ii) of the CFSA and an order that he be made a Crown ward with no access. In support of that motion the CAS provided 9 affidavits.
[11] KS provided three affidavits: February 23, 2011, March 8, 2011 and March 18, 2011. Attached to her first affidavit was her Plan of Care in which she identified how she would care for PJLL. MJ provided an affidavit sworn March 8, 2011 in which she proposed that PJLL be returned to her care and, alternatively, that PJLL be place with KS.
[12] On March 11, 2011, Justice Ingram made an order adding KS as a party and granting access for KS to PJLL with MJ. The motion for summary judgment was adjourned to March 24, 2011.
[13] On March 24, 2011, the motions judge heard submissions from counsel for the CAS, counsel for MJ, counsel for KS and counsel for the child. He gave oral reasons for decision later that day.
Reasons for Decision
[14] All parties agreed that the evidence supported a finding that PJLL was a child in need of protection. The issue was disposition.
[15] The motion was brought pursuant to Rule 16 of the Family Law Rules. The motions judge concluded that there was no genuine issue requiring a trial as to disposition. He granted the order for Crown wardship without access.
Appeal
[16] This appeal was launched on behalf of KS. She asks for an order setting aside the order made March 24, 2011 for Crown wardship without access and asks that a trial be conducted on the issue of disposition.
[17] In a motion for fresh evidence filed on her behalf, she provided an affidavit that contained information about her circumstances, as well as about SL and about MJ. MJ has also provided an affidavit with information about her circumstances and indicating her support for her mother’s appeal and the request that there be a trial of the issue as to whether PJLL should be placed with her mother. Counsel for the child objected to parts of the affidavit of KS on the basis that much of it does not meet the due diligence test; it relates to events prior to the judgment under appeal; and two parts of it reflect speculation, not evidence.
[18] In response, the CAS provided two affidavits. Counsel for the appellant did not object to the filing of those affidavits but pointed out that he had only received them on November 27th.
[19] We agreed to receive all of the affidavits bearing in mind that the objections by counsel for the child would affect the weight.
Standard of Review
[20] As the Court of Appeal held in Combined Air Mechanical Services Inc. v. Flesch[^2], the determination of whether there is a “genuine issue requiring a trial” is a legal determination which is reviewed on a standard of correctness.
Analysis
[21] Counsel for the appellant takes the position that the motions judge erred in law by failing to apply the proper test for summary judgment and he erred in law by improperly assessing the credibility of the parties.
[22] The relevant parts of Rule 16 of the [Family Law Rules][^3] are as follows:
16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[23] Rule 20.04 of the Rules of Civil Procedure[^4] includes the following:
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[24] Counsel for the appellant took the position that the motions judge had erred in law by placing the burden of proof on KS and MJ, the respondents to the motion. Furthermore, he erred by incorporating into his analysis an evaluation of the credibility of KS as anticipated by Rule 20.04(2.1).
[25] At the outset of submissions before the motions judge on March 24, 2011, counsel for the CAS asked for leave to file an affidavit in response to the most recent affidavit of KS. At page 2 of the transcript of the submissions, the motions judge ruled against the filing of the affidavit and in doing so, said that the mother and grandmother were “ultimately going to have the onus here”. In his oral reasons for judgment, there are two sentences in which the motions judge placed an onus on KS and MJ. However, at the outset of his reasons, the motions judge instructed himself on the law as follows:
Insofar as the law relating to summary judgment motions is concerned, the court must be governed by rule 16 of the Family Law Rules. On a motion for summary judgment, the onus is on the moving party, in this case, the agency, to establish that there is no genuine issue for trial. I am required to take a hard look at the merits of the case to determine whether or not there is a genuine issue requiring a trial in this matter. Summary judgment motions, particularly in child protection cases, should proceed with caution and should be granted only in the clearest of cases. (transcript page 2)
My role on a summary judgment motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial in relation to PJLL. I am not here to assess or decide credibility or draw inferences from conflicting affidavits or weigh the evidence, because ultimately, that is reserved for the trier of fact. I suggest that with amendments to the civil law rules, in this case, to some extent it is necessary for me to carefully review and be satisfied on the evidentiary record as it exists as to possible issues affecting credibility, inferences to be drawn and so on. In determining whether there is a triable issue, I cannot speculate as to possible evidence or elaborate on what evidence is presented to me. . . . (transcript page 2-3)
In interpreting what I have to do on a summary judgment motion under rule 16, I also have to be cognizant of rule 2 of the Family Law Rules which provides that the paramount purpose of our legislation is to promote the best interests, protection and well-being of – in this case, PJLL. (transcript page 3)
In answering this motion for summary judgment, the onus has been on Mother and Grandmother not to just suggest bald denials of the evidence of the agency, but today they had to put their best foot forward in order to convince the court that there was a genuine issue for trial. (transcript page 3)
If I find that the agency has made a prima facie case, which, of course, in relation to the finding itself this has been agreed upon, this will require me to go to the next stage to determine whether or not there is an issue that needs to go to trial in relation to the disposition or in relation to whether or not PJLL should be made a crown ward without access or whether or not he should be placed with his grandmother. (transcript page 3-4)
Again, in face of this, if I should make those findings, then the onus is upon Mother and Grandmother to again convince the court that there is a genuine issue for trial. Again, allegations or blanket denials or self-serving affidavits that are not supported by specific facts, is simply not enough to defeat a claim for summary judgment. (transcript page 4)
In determining whether or not there is sufficient evidence led by Mother and Grandmother today, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial and in matters such as these, child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent or grandparent’s desire to care for a child. (transcript page 4)
[26] The motions judge reviewed aspects of the evidence led on behalf of the CAS and held that KS had not responded to several issues, including whether one of her sons was supportive of PJLL being placed with her, whether her family doctor had concerns about her health and her ability to care for the child, and whether KS understood that the conflict between her and MJ created a danger to PJLL. He said the following:
I noted there is really a lack of evidence coming forth from Grandmother from her family; from her father; from her doctor; from others that one would have thought would have been able to provide evidence to contradict what is being suggested by the agency today. What struck me most in the materials presented by Grandmother though, was the fact that there was no attempt to counter the agency’s and the Children’s Lawyer’s position that there is no bond between her and PJLL. I saw nothing whatsoever in the materials (from her point of view) about the nature of the visits, what happens on the visits, no observations by Grandmother in relation to PJLL and his development and so on and so forth. So that issue has not been answered today. (transcript page 10 – 11) . . .
What is presented now by Grandmother as a plan of care reveals a lack of insight into Mother’s potential harm to PJLL; it reveals a lack of insight into the fact that there is no bond between herself and PJLL. As I have already said, there has been no evidence presented to me today at all that would suggest that any relationship exists between PJLL and his grandmother. I heard nothing about what type of interaction occurs; rather, I have evidence that suggests there is simply not a bond. It is a plan of “maybes”, it is a plan of “possibilities” and it is a plan asking this court to risk PJLL’s best interests and his future and the court cannot undertake such a process. (transcript page 13)
[27] The motions judge held as follows:
It is clear to me that the agency has made out a prima facie case for crown wardship with no access and in regard to that disposition, neither Mother or Grandmother has raised a triable issue that requires a trial in this regard. To delay this matter further, to suggest that time or a trial will allow Grandmother to develop a case, flies in the face of the record that has been presented to the court today and it flies in the face of PJLL’s best interests. (transcript page 11)
I must now consider what is in PJLL’s best interests and I think the answer is clear. PJLL needs permanency; he needs continuation of his present placement. This is not the time for the court to experiment and see if Grandmother can cope; to see if she can raise PJLL; to see if she can create a bond with him; or to see PJLL returned to care in face of all these odds. The only evidence before the court today indicates that crown wardship without access is in PJLL’s best interests. (transcript page 11-12) . . .
Having found that there is no genuine issue for trial in relation to whether or not PJLL is a child in need of protection; as to whether or not the society has established a prima facie case; and that his best interests require that he be made a crown ward without access; and as to whether or not Mother or Grandmother have presented any evidence or specific facts showing there is a genuine issue for trial on any of these issues, I am making a finding today that PJLL is a child in need of protection under Section 37(2)(b)(i) and (ii) of the Child and Family Services Act and I am making an order that he will be made a crown ward without access for the purposes of adoption. (transcript page 14)
[28] Based on the entirety of the reasons for decision including those passages, it is apparent that the motions judge was satisfied that the CAS had established a prima facie case; that KS (and MJ) had a responsibility to provide evidence that raised genuine issues requiring a trial; that the evidence provided by KS (and MJ) did raise issues and conflicts in the evidence, but fell short of raising material issues requiring a trial; and that the most important issue for him was the absence of evidence that there was any bond between KS and PJLL. Absent evidence that there was a relationship, the motions judge was compelled to conclude that placing PJLL with his grandmother would not be in his best interests. The motions judge placed an evidentiary burden on KS (and MJ) as anticipated pursuant to Rule 16(4.1). However, we are not persuaded that the motions judge erred by reversing the burden of proof. Throughout his reasons, he remained conscious that the burden of proof rested on the CAS to raise a prima facie case that there was no issue requiring a trial.
[29] Counsel for the appellant also took the position that the motions judge weighed evidence, drew inferences with respect to material issues in dispute and made findings of credibility. He referred to three specific areas. The first was the extent to which KS’s sons and particularly D. supported her Plan of Care for PJLL. The motions judge did consider the evidence filed on behalf of the CAS and he acknowledged that KS denied some of that evidence. However, he did not evaluate the credibility of the evidence. He observed that the appellant had put her son D. forward as being supportive of the Plan of Care and yet she had provided no evidence to suggest that that was the case.
[30] The second issue was the extent to which her physician supported her Plan of Care for PJLL. The CAS provided evidence of their contact with Dr. Caldwell. In her three affidavits, KS responded to that evidence. It was common ground that Dr. Caldwell said he was not supportive. The difference between them was the reason he had given. The motions judge did not decide which of those versions he accepted. His concern was that there was undisputed evidence that Dr. Caldwell did not support the Plan of Care and KS had not provided a letter from him to clarify his position.
[31] The third issue was whether KS had completed the PRIDE program. The CAS provided evidence that KS had not completed it while KS provided evidence that she had. The additional affidavit offered by the CAS on March 24th addressed this issue and the motions judge refused to allow it to be filed because he noted that whether she had finished the Pride Program was “water under the bridge” because the parenting capacity assessment had not approved her as a placement. In other words, the conflict in the evidence on that point was not material and did not have to be resolved.
[32] In each of those three instances, we are not persuaded that the motions judge weighed the evidence, drew inferences as to material facts or made findings of credibility. Rather, he was assessing the adequacy of the evidence to determine whether KS had met the requirement in Rule 16(4.1).
[33] Counsel have referred to some decisions arising from the question as to whether the functions outlined in Rule 20.04(2.1) apply to family law cases.[^5] We need not resolve that controversy because we are not persuaded that the motions judge did weigh the evidence, draw inferences or make findings of credibility.
[34] Counsel for the appellant took the position that the record before the motions judge indicated that there were issues that required a trial, namely: whether her care of SL was good enough or the concerns of the CAS about her care of SL justified a refusal to place PJLL with her; whether KS had the capacity to parent PJLL; whether KS understood the challenges MJ was facing and whether KS could deal with those challenges in access; and the nature of the relationship with PJLL.
[35] Of all of those, the material issue was the nature of the relationship between KS and PJLL. As indicated above, the evidence advanced on behalf of the CAS was that there was no relationship. In her evidence, KS did not describe her relationship with PJLL because it was virtually non-existent. That was a material issue which did not require a trial. The other issues asserted by counsel for the appellant are irrelevant in view of the absence of a relationship between KS and PJLL.
[36] The appellant has failed to establish that the motions judge erred in granting the motion for summary judgment. Accordingly, the appeal is dismissed.
[37] On consent, there will be no order as to costs of the appeal.
Kiteley J.
Swinton J.
Lederer J.
DATE: December 10, 2012
[^1]: R.S.O. 1990, c. C.11 [^2]: 2011 ONCA 764 [^3]: O. Reg. 114/99 [^4]: O. Reg. 575/07 [^5]: Steine v. Steine, 2010 ONSC 4289, [2010] O.J. No. 3331 (O.C.J.); Starr v. Gordon, 2010 ONSC 4167, [2010] O.J. No. 3223 (S.C.J.); Cranston v. Cranston, [2010] ONSC 6429 (Div.Ct.)