CITATION: Niagara CAS v AH, 2014 ONSC 1249
DIVISIONAL COURT FILE NO.: DC-13-496
DATE: 20140228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO, WHITAKER, ELLIES J.J.
B E T W E E N:
The Children’s Aid Society of the Niagara Region
Applicant (Respondent on Appeal)
AND:
A.H.
Respondent (Appellant)
Linda Henry, Counsel
Wayne N. Brooks, Counsel
HEARD: February 24, 2014
ENDORSEMENT
[1] A.H. appeals from the decision of Parayeski J. in which he granted a motion for summary judgment brought by The Children’s Aid Society of the Niagara Region and made A.H.’s daughter a Crown ward, without access. Although she makes reference in her materials to six different grounds of appeal, A.H.’s complaints can be grouped into two: that the motion judge erred in refusing to grant her an adjournment and that he erred in granting the relief sought on the record before him. In our view, neither ground can succeed.
[2] A.H. contends that she ought to have been granted an adjournment on the motion date in order to retain counsel and to present additional evidence. With respect to the issue of counsel, the judge rejected A.H.’s contention that her previous lawyer was the reason why she needed a further parenting assessment. He committed no error in doing so.
[3] The motion judge also rejected A.H.’s request that she be granted an adjournment to retain new counsel. He based his decision on the fact that the matter had already been adjourned once to allow A.H. to retain a lawyer, that she had missed the deadline for appealing Legal Aid’s refusal to grant a certificate, and that the child had already been a ward of the Society for longer than the time permitted by the Child and Family Services Act (“CFSA”). We see no procedural unfairness in the manner in which the motion judge dealt with the request and no error in the exercise of his discretion to deny it.
[4] The issue of additional evidence turns out to involve both the motion and this appeal. Regarding the motion, the complaint is that the judge failed to permit A.H. an opportunity to present evidence of her future plans to live with her father. However, the record reveals that the motion judge permitted A.H. to make submissions based on the evidence she wanted to adduce and that he was not persuaded that the evidence would give rise to an issue that required a trial. Therefore, we see no merit in this ground of appeal.
[5] During the argument of the appeal, counsel for A.H. sought to introduce fresh evidence in the form of an affidavit indicating that A.H. had retained a professional to prepare a parenting assessment on her behalf. We permitted counsel to do so, despite the fact that no motion had been filed. However, we reserved our decision on the issue of the admissibility of the evidence. While we have decided to allow the evidence pursuant to s. 69(6) of the CFSA and the decision of the Supreme Court of Canada in Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, in our view, the evidence fails to establish that the result of the motion would, or should, have been any different. At its highest, the evidence establishes that there would have been a second parenting assessment at some point. It does not establish that it would be any more favourable than or undermine in any way the existing assessment. Therefore, it does not establish a genuine issue requiring a trial, which brings us to the last issue, namely A.H.’s contention that the motion judge erred in granting the order sought.
[6] We can find no error in the motion judge’s finding that there was no genuine issue requiring a trial. The record before him amply supported his conclusion that it was in the best interests of the child that she be made a Crown ward without access. The motion judge stated that he had reviewed that record thoroughly, including A.H.’s recent affidavit in opposition to the motion. It was not necessary for him to refer in detail to all of the evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.); R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3.
[7] After making reference to A.H.’s evidence and to the evidence of the parenting assessment of Dr. Amin, the motion judge referred to relevant jurisprudence standing for the well-accepted principle that evidence of more than just “heartfelt desire on the part of the (mother)” was required to raise a genuine issue requiring trial. We see no error in his conclusion that the record contained no more than that.
[8] Accordingly, the appeal is dismissed.
[9] We do not believe that this is a proper case for costs.
Marrocco J.
Whitaker J.
Ellies J.
Released: February 28, 2014
CITATION: Niagara CAS v AH, 2104 ONSC 1249
DIVISIONAL COURT FILE NO.: DC-13-496
DATE: 20140228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO, WHITAKER, ELLIES J.J.
B E T W E E N:
The Children’s Aid Society of the
Niagara Region
Applicant (Respondent on Appeal)
AND:
A.H.
Respondent (Appellant)
ENDORSEMENT
Released: February 28, 2014