The Children's Aid Society for the County of Simcoe v. B.D. and S.S.

2014 ONSC 2140

DIVISIONAL COURT FILE NO.: DC-13-00552

DATE: 20140407

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Czutrin S.F.J.S.C., Kiteley and Whitaker JJ.

BETWEEN:

THE CHILDREN’S AID SOCIETY FOR THE COUNTY OF SIMCOE Applicant (Respondent in Appeal)

– and –

B.D. and S.S. Respondents (Appellants on Appeal)

Michael F. Sirdevan, for the Applicant/Respondent in Appeal

Martin J. Prost, for the Respondents/Appellants

HEARD at Oshawa: March 5, 2014

WARNING:

This is a case under Part III – Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c.C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8) PROHIBITION: IDENTIFYING CHILDREN – No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

76(11) PUBLICATION – No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

85(3) OFFENCES – A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

G. CZUTRIN J.

[1] The parents of A.J.D.-S (the “child”) born […], 2012 appeal the summary judgment of Olah J. (the “motions judge”) dated March 15, 2013: Children’s Aid Society of Simcoe (County) v. D. (B.), 2013 ONSC 1610, 30 R.F.L. (7th) 457. While the parents appeal both the finding and disposition, they concede that any placement of the child in their care would include a supervision order.

[2] The motions judge found that there was no triable issues and that the child was in need of protection pursuant to s. 37(2)(b)(i), (ii), and (g) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”). Under s. 57(1) of the CFSA, the motions judge ordered that the child be a Crown Ward and placed in the care of the Children’s Aid Society for the County of Simcoe (the “Society”) without access.

[3] The child was taken into care at birth, and has remained in care for a period well in excess of one year[^1].

[4] At the time of hearing this appeal, the child was two years old and living in a home with two siblings, one who had been adopted and one whose future has yet to be determined by the court; although, we were advised that a motion for summary judgment is scheduled.

[5] The parents submit that there is a triable issue based on the evidence presented by them. The motions judge described the parents’ evidence in her March 15, 2013 decision as follows:

[34] Although the parents were not permitted to file Dr. Peter Marshall’s critique of the two parenting capacity assessments [prepared for a previous trial and ruled admissible], they were permitted to tender evidence of Dr. Marshall’s psychological testing and conclusions with respect to both the mother and the father, as well as his observations of the parental interaction with the child during a 1 day observation period.

[35] Their affidavits and Dr. Marshall’s report are the basis for the parents’ argument that they have established a triable issue both with respect to a finding and placement for the new born child, now 1 year old.

[6] The parents’ counsel argues that the parents do not know what case they have to meet and the evidence they need to provide to have any child remain in their care after birth. They submit that the motions judge reversed the onus, requiring the parents to raise a triable issue rather than placing the onus on the Society. They also submit that the motions judge weighed the evidence to determine credibility, and that is contrary to Rule 16 of the Family Law Rules, O. Reg. 114/99.

[7] The parents also submit, as they did at a trial heard by Gunsolus J. concerning another child of the parents, allegations of bias concerning the s. 54 CFSA assessment because a member of the team conducting the s. 54 assessment had been president of a Society in another jurisdiction, and the Society’s summary judgment evidence relied on previous court decisions and past parenting evidence. The motions judge described the Society’s evidence as follows:

[32] The basis for the Society’s request to make a finding that the fifth child is in need of protection, are found in past evidence as per s. 50 of the Child and Family Services Act, R.S.O. 1990, c. C-11 (CFSA) which states as follows:

s. 50. Consideration of past conduct toward children – (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for decision in an earlier civil or criminal proceeding, is admissible into evidence.

[33] The basis for the finding is found in the following evidence filed in the Society’s exhibit book, namely:

i) Decision of Justice D. Gunsolus dated September 24, 2010.

ii) Decision of Justice D. Gunsolus, dated December 8, 2011.

iii) Decision of Justice T. Wood dated April 19, 2012.

iv) Parenting Capacity Assessment by Abraham, Bonsu and Fazari, dated December 18, 2007.

v) Parenting Capacity Assessment by McMaster Children’s Hospital, dated August 9, 2011 (CAAP).

Background

Summary Judgment Background

[8] The Child Protection Application concerning the child was commenced […], 2012 (two days after the child’s birth), with a first return date of March 2, 2012.

[9] The Application was commenced in Bracebridge as the parents attempted to avoid the Simcoe Society given their history; the mother has four previous children, two who reside with family members and two who are Crown Wards. However, the Application was transferred to the Superior Court of Justice, Family Court in Barrie.

[10] The parents then retained their counsel, and filed an Answer and Plan of Care seeking the placement of the child in their care. They asserted they had developed good parenting skills from “various courses attended by them.”

[11] The Society’s motion for summary judgment dated August 9, 2012 was first returnable August 17, 2012. The Society relied on affidavits dated February 28, March 6, and August 9, 2012 from the Child Protection Worker who had primary carriage of the file regarding the parents (at first the mother) since May 2006.

[12] The parents’ counsel served a cross-motion, also returnable August 17, 2012, to make the child available to Dr. Peter Marshall, a psychologist, so he and his assistant could observe the parents with the child for a period of eight hours.

[13] The parents’ affidavit filed on August 8, 2012 in support of their cross-motion outlined their positions on their previous involvement with the Society, their involvement with the court, their complaints about the previous CAPP assessment, their abandoning the appeal of Gunsolus J.’s decision dated December 8, 2011, and their past involvement with Dr. Marshall, and included Gunsolus J.’s ruling to not admit Dr. Marshall’s critique of the CAPP assessment into evidence.

[14] On August 17, 2012, the motions judge allowed the parents’ cross-motion and adjourned the summary judgement motion to October 26, 2012 to allow for Dr. Marshall’s eight-hour observation visit, with his report to be produced and filed by October 9, 2012.

[15] The motions judge gave reasons on August 17, 2012 that we had an opportunity to review at tab 6 of the Appellant’s Appeal Book. The motions judge wrote the following in her reasons dated August 17, 2012:

[7] The CAS’s apprehension is based on past conduct. The parents have a limited ability to exhibit parenting skills as their visits with the child are limited to 1 hour weekly.

[8] Having heard both counsel, and upon a review of the affidavits and exhibits filed, despite the finding of Justice Gunsolus, with respect to the other 4 children, the parents must have every opportunity to assert triable issues by objective evidence. Given the fact that the child has been in care for 6 months, and the legislative timelines are being met, I rely on the principles enunciated in N.B. (Minister of Health and Community Service) v. G. (J.). 1999 653 (SCC), 50 RFL (4th) 63, p.70, to afford the parents a limited opportunity to establish their triable issue, if any.

[16] The summary judgment motion returned to the same judge as scheduled on October 26, 2012, pursuant to Family Law Rule 16.

The Motions Judge’s Reasons

[17] I highlight the following from the motions judge’s March 15, 2013 decision:

[7] B.D. has four other children: T.D. age 7, L.D.-S. age 3, B.D.-S. age 2 and R.D.-S. age 17 months. The father of three of the children is S.S. and, the oldest child’s father is P.B. who did not participate in the trial before Justice Gunsolus.

[9] None of the other four children are in the mother or father’s care.

[10] The Society has been involved with the mother since 2006 after which the Society commenced a protection application with respect to the oldest child, T.D., on December 19, 2006. The protection application reflected concerns that the mother displayed erratic, confrontational and threatening behaviours towards society workers and other community services; the mother refused numerous occasions to meet with the society worker to discuss continued protection concerns; the mother refused to obtain a psychiatric assessment at the recommendation of Dr. McCutchen who expressed concerns regarding the well-being of T.D. in the care of the mother with the community supports. T.D. was diagnosed with “failure to thrive” and the Scan unit from The Hospital for Sick Children observed bruising on T.D.’s ears and found that the bilateral nature of the bruising, the size of the bruising and the pattern of location resulted in substantial concern for inflicted injury.

[11] T.D. was returned to the care of the mother in January 30, 2007 and apprehended again on May 11, 2007 as a result of unexplained injuries which were assessed as non-accidental. Further, it was alleged that the mother was not adhering to any treatment plans to eliminate feeding issues for T.D., the mother provided medications to T.D. which were not warranted; and the mother continued to refuse to follow through with a court ordered psychological/psychiatric assessment.

[12] On October 1, 2008 a final order was made finding T.D. in need of protection and placing her in the care of maternal grandparents subject to the supervision of the Society for a period of six months.

[13] On June 1, 2009 the Society commenced a protection application regarding the second child, L.D.-S., apprehending him at birth. On October 9, 2009, a final order was made finding L.D.-S. to be a child in need of protection and placing him in the care of the father, subject to the supervision of the Society.

[14] On October 26, 2009, the Society commenced an early status review application as a result of L.D.-S. suffering a spiral fracture of his left tibia while in the care of the father and mother.

[15] On December 15, 2009 the temporary order was made placing L.D.-S. in the care of the maternal grandparents subject to the supervision of the Society.

[16] Shortly thereafter, on December 22, 2009, the Society commenced a motion to vary the placement of L.D.-S. as a result of maternal grandparents indicating that they were not able to care for L.D.-S. and a new allegation that the mother had recently twisted T.D.’s arm during an access visit. L.D.-S. was placed in the care of the Society.

[17] The third child, B.D.- S., was born on […], 2010 and apprehended at birth.

[18] On June 4, 2010, by way of final order, T.D. was placed in the custody of the maternal grandparents.

[19] The matters involving B.D.-S. and L.D.-S. proceeded to trial in the summer and fall of 2010. On September 24, 2010, Justice Gunsolus provided Reasons for Judgment finding both L.D.-S. and B.D.-S. to be children in need of protection. A temporary order was made providing for graduated access between the children and the maternal grandparents and a section 54 parenting capacity assessment was ordered to be completed on the parents and maternal grandparents.

[20] On October 24, 2010 the Society commenced a protection application for the fourth child, R.D.-S. R.D.-S. was also apprehended at birth.

[21] On or about November 22, 2010, the maternal grandparents returned L.D.-S. to the care of the Society.

[22] The section 54 assessment was completed by McMaster Children’s Hospital and the Child Advocacy and Assessment Program (CAAP) and released on August 9, 2011. This assessment recommended that all the children be permanently removed from the mother and father’s care and expressed concerns about the mother and father having further children indicating that they would have “significant concerns for any future children in the parents’ care”.

[23] On […], 2011, the fourth child, R.D.-S. was born and apprehended in Cambridge, Ontario after the parents had left the County of Simcoe.

[24] On December 8, 2011 T.D. was found to be a child in need of protection pursuant to section 37(2)(a)(i), b(ii) and (2)(f) and (g) of the CFSA; and, R.D.-S. was found to be a child in need of protection pursuant to section 37(2) of the CFSA. Both T.D. and B.D.-S. were placed in the maternal grandparents care under strict terms of supervision. L.D.-S. and R.D.-S. were made Crown Wards without access for the purpose of adoption. A restraining order was put in place prohibiting any contact, direct or indirect, between the parents and T.D. and B.D.-S. while they were in the care of the maternal grandparents. So the first and third born were placed with the grandparents and the second and fourth born were placed for adoption.

[25] During the final week of trial in November and December, 2011, the mother and father both testified that the mother was not pregnant. It is now clear that this was false information.

[26] On February 27, 2012, once again, the mother left the jurisdiction of the County of Simcoe to give birth to A.J.D.-S., traveling to Bracebridge, Ontario. The child was apprehended at birth in Bracebridge by Muskoka Child and Family Services.

[27] The mother indicated to the Bracebridge hospital staff that this was her first child; that she had not received any prenatal care; and that she lived in Mississauga and did not know where Simcoe County was. The mother denied having knowledge of the Society worker, and did not indicate how she had arrived in Bracebridge.

[28] The Knight’s Inn in Bracebridge, Ontario, confirmed that the mother and father had checked in on February 26, 2012 at 1:00 a.m. and checked out on February 27, 2012 later in the day.

[29] By Notice of Appeal dated January 6, 2012 and a supplementary Notice of Appeal dated March 29, 2012, the parents attempted to appeal the decision of Justice Gunsolus. Pending the disposition of the appeal, on January 19, 2012 the parents issued a motion seeking temporary care and custody of T.D., L.D.-S., B.D.-S., and R.D.-S.

[30] This motion, pending appeal, was heard before Justice Wood on March 20 and April 10, 2012, after which, on April 19, 2012, Justice Wood dismissed the parents’ motion for temporary care and custody, providing detailed reasons.

[31] On May 10, 2012 the parents abandoned their appeal and the Society placed L.D.-S. and R.D.-S. for adoption. T.D., and B.D.-S., remain placed with the maternal grandparents under strict terms of supervision with no contact, direct or indirect, with their parents.

The Motions Judge’s Analysis concerning Summary Judgement

[18] Commencing at para. 36 of her March 15, 2013 reasons, referencing Family Rule 16, the motions judge outlined the basis of the Society’s position that they have a “prima facie case” for a summary judgment on the issue of finding the child in need of protection.

[19] At para. 36, the motions judge reviewed past findings about the mother’s four other children, including the following:

• “T.D. had a history of failing to thrive under the mother’s care and being administered medication against medical advice. … she was found to have significant bruising on her ears … likely caused by either boxing of the ears or pulling of the ears. She had a history of seizures” and the seizures ended after apprehension.
• There was a history of concerns about the care of B.D.-S.
• L.D.-S. was apprehended at birth. He was placed with the father with the mother’s contact to be supervised, but L.D.-S. was found to have “multiple leg fractures” after ten days in the parents’ home. He “suffered inflicted injuries.”
• R.D.-S. was apprehended at birth and on consent was found to be in need of protection upon the parents’ abandonment of their appeal of Gunsolus J.’s judgment.

[20] The motions judge reviewed the events surrounding the birth of R.D.-S. (17 months old at the time of the summary judgment).

[21] She noted some of the father’s “appropriate interactions with the children during supervisory visits, [but] there were also times when he appeared angry and behaved inappropriately.”

[22] She noted other risk factors concerning the father:

• “little insight into the problems the mother had experienced with regard to parenting”
• “limited opportunity to parent for any significant period of time”
• “presented as angry and frustrated with his interactions with T.D.”
• did not intervene “when the mother was inappropriate in front of the children”
• “exhibited a limited knowledge and understanding of children’s developmental needs.”
• “difficulties related to aggression and use of alcohol.”
• “does not have significant personal supports.”
• “unwilling or unable to see the risk posed to the children by being in the care of the mother.”

[23] Commencing at para. 37 of her reasons, the motions judge set out the reasons the Society met its onus under Rule 16(4) to establish no genuine issue requiring a trial or, as the motions judge put it, the “Society’s prima facie case.”

[24] She then considered the parents’ reply affidavit evidence, pursuant to Rule 16(4.1).

[25] At paras. 38-57, the motions judge considered Dr. Marshall’s evidence. The parents most significantly relied on Dr. Marshall’s evidence to rebut the Society’s evidence and show that there is a genuine issue for trial. The parents submit that Dr. Marshall’s evidence raised triable issues and called into question earlier experts’ reports, most notably the CAAP report.

[26] The motions judge concluded the following:

[50] Dr. Marshall concludes with respect to the psychometric testing, a page 13 of his psychological assessment, as follows:

“CAPI profiles: neither profile conforms to the pattern associated with above average risk of maltreatment. As cautioned by the many authors, no one instrument should ever be seen sufficient in reaching a conclusion regarding risk. The value of the CAPI as part of a parenting assessment is, however, recognized in the clinical literature. As discussed in Reader et al (2003), studies in the assessment of parenting, for example, the CAPI has been “the most extensively researched instrument … in family assessment proceedings.” They also state: “it has been shown to be reliable, valid, sensitive to changes resulting from treatment.”

[51] Dr. Marshall, at page 13 also identifies the limitations and concerns as follows:

i) “The assessment was not intended to be a full parenting capacity assessment. As a result, recommendations regarding [ the child’s] future care cannot be made; rather the purpose of the assessment was to provide information that the court may wish to consider.

ii) “Mr. S.S. [the father] has a history of domestic assaults. As far as could be determined from the interviews, testing, and observations, there is no indication of problems with anger or poor frustration tolerance. There were also indications that he has learned ways of managing anger from his involvement in counselling. However, confidence in concluding that emotional control is not a current issue for Mr. S would be greater if a fully valid personality profile had been obtained.”

[52] At best, Dr. Marshall identified the mother with a personality style, as opposed to a personality disorder, which may, with assistance and counselling, the time frame for which is not identified, result in improved parenting. However, Dr. Marshall did not provide a full Parenting Capacity Assessment (PCA), and received some negative results, or, results which were incapable of interpretation on two of the tests. Also, it cannot be said that Dr. Marshall’s Psychological report reviewed all the past assistance both the mother and father received with parenting the mother’s four children; all of which were unsuccessful in advancing the parenting skills of either the mother or the father.

[53] Although, the father fared better in the test results, the MMPI test could not be fully interpreted with the potential of 10 underestimations of areas of difficulty. Further, Dr. Marshall is not confident that the father has his emotions under control to avoid conflict between the parties.

[54] Dr. Marshall’s psychometric testing, does not rebut the evidence of the parents’ past parenting. As such the report cannot be viewed as establishing a triable issue with respect to their ability to parent their son, A.J.D.-S., especially since the apprehension of the fifth child, the Society is not aware of either the mother or the father obtaining any therapeutic services in order to assist them in understanding why the Society has parenting concerns about their ability to recognize the risk that they pose in parenting any child.

[55] The answer/plan of care filed by the parents demonstrates their ongoing failure to appreciate the Society’s protection concerns despite the mother participating in two Parenting Capacity Assessments (PCA), the father in the last assessment, and, the findings of Justice Gunsolus with respect to their parenting ability.

[56] They do not rebut the findings of Justice Gunsolus, nor Justice Wood, with respect to their ability to parent the fifth child. They took no parenting classes, no marital counselling, no personal counselling between the date of the last day of trial and the birth of the fifth child. Their best argument is the fact that Dr. P. Marshall provided a psychological report which addresses some underlying factors in parenting.

[57] Having taken into consideration all the factors identified in s. 37(3) of the CFSA, the child never having been in the care of the parents; and, the parents having failed to raise a triable issue with respect to the finding, I find that the fifth child, A.J.D.-S., is a child in need of protection pursuant to s. 37(2)(b)(i) (ii) and (g) of the CFSA.

[27] The motions judge also considered the evidence presented to her when considering the issue of disposition, having found that the child is in need of protection.

[28] In considering the parents’ position, she reviewed their evidence, including that of Dr. Marshall. She noted the following:

[59] The parents’ affidavits focus on their objections to the CAAP Report primarily because it was “completely negative to both the parents and appear(s) to mirror the arguments and opinions of the Children’s Aid Society.” They further indicate that Dr. Marshall, despite the Court’s rejection of his critique of the CAAP assessment, agreed to continue with an assessment of the parties to be presented at the appeal and in support of their request for custody of their expected child. Although repeated reference is made by the parents to the assessment conducted by Dr. Marshall, clearly Dr. Marshall’s report is a psychological assessment not a parenting capacity assessment. Also, the parents relied almost exclusively on Dr. Marshall’s report to rebut the prima facie case, such that their first affidavit makes minimal reference to any counselling, parenting courses or the like, as indicia of their plan to rehabilitate themselves as parents for any child.

[29] She considered what may have materially changed since the trial before Gunsolus J. and his December 8, 2011 judgment, which would raise a triable issue to consider the child being placed in their care. The motions judge concluded the following:

[66] On the evidence before me, I find that no such material change in circumstances has occurred to improve their parenting of a child. The parties have moved. The parties have taken no counselling to address the issues raised by Justice Gunsolus or the first PCA in 2007. The parties have taken no counselling to address the issues raised by Dr. Marshall. The parties have taken no parenting courses. Nothing has changed.

[67] Their reliance on Dr. Marshall’s conclusions which may differ from that of the original psychological report considered by Justice Gunsolus, is unfortunate, especially since the reading of Justice Gunsolus’ judgment would suggest that the mother’s personality style was not the significant reason for the judgment rendered. At page 6 of his decision, Justice Gunsolus stated: “Based upon the totality of the evidence, including, but not limited to, B.D.’s past parenting and apparent lack of development of parenting skills, the ongoing adult conflict between her and her parents, B.D.’s unaddressed emotional and mental health issues and S.S.’s inability to intercede, I found that L. and B. were children in need of protection.” His review of the evidence did not focus primarily (on) the finding of B.D.’s personality disorder/style.

Fresh Evidence at the Appeal

[30] We received an updating affidavit from the parents dated February 4, 2014, providing the following:

• The parents have a new child O.D.-S. born […], 2013, apprehended at birth who they see twice per week for three hours supervised.
• They believe the visits are going well.
• They have asked the Society what “specific deficits in our parenting we need to improve in order to move toward having [O.D.-S.] return to our care.”
• They allege that they received no reply and are “willing to listen and work with the Society to address any concerns that they can outline” for them to work on.
• They set out the help the mother sought for counselling (although, the weekly sessions ended as the counselor moved and has not been replaced.)
• The mother claims she attended the North Simcoe Catholic Family Life Centre in Midland in July 2013 but was told at “the initial intake meeting that they could not identify any specific concerns with which they could help.”
• The mother claims she received the same response at the Outpatients Services Office of the Waypoint Mental Health Centre.
• At the Huronia Medical Centre she was advised that the waiting list was over 300 people.
• At Mothercare she was advised that she could not participate unless she had primary care of one of her children.
• A psychologist informed her that she could not be helped “without first completing a full psychological assessment,” which she claims she cannot afford.
• She refers to the Society’s affidavit evidence in a pending motion by the Society referencing evidence of her “father’s abusive behaviour documented toward my brother … when he was a child not brought out at trial before Justice Gunsolus … and that a child T (who will be nine this August) still struggles with the loss of us as her parents.” They assert this strengthens their contention that “the judgment of Justice Gunsolus is not an appropriate or reliable decision.”

[31] The exhibits attached to the updating affidavit include the correspondence between the Society; the parents’ counsel’s confirmation of counseling without detail or any helpful information as to the issues or progress; and the Society’s affidavit of January 24, 2014 addressing the mother’s parents’ request for access to the newborn child O.D.-S. It speaks to the current status of the parents’ children, including the child in this case and O.D.-S. The affidavit addresses the maternal grandparents becoming parties to this case and O.D.-S.’s case, and the Society’s objection to them being added. It largely speaks to the maternal grandparents’ “significant history” with the Society since 1980. The affidavit states, “on December 8, 2011 the child T was deemed a child in need of protection while in the care of the maternal grandparents, and a Supervision was put in place and continues to be put in place.” The affidavit refers to the CAAP report and its conclusions about the maternal grandparents, who were also part of the parenting capacity assessment. The affidavit also informs us that the child and O.D.-S. are residing in a foster home where an older sibling has been adopted and where the foster parents seek to have all three children adopted, should the child and O.D.-S. become free for adoption.

Analysis and Disposition

[32] It was appropriate for the motions judge to rely on a judgment dated December 8, 2011 after a lengthy trial as evidence of past parenting under s. 50(1), particularly because the child was born just two and a half months after the judgment and the parents lied to the trial judge about the mother being pregnant. They also misled the hospital where the child was born. This was uncontradicted evidence, not matters requiring any weighing of evidence or credibility findings: Manitoba (Director of Child & Family Services) v. A. (J.M.), 2009 MBCA 48, 2009 CarswellMan 188 and Catholic Children’s Aid Society of Toronto v. L.M., 2011 ONCJ 146, [2011] O.J. No. 1361. In the latter case, Sherr J. stated the following in a summary judgment motion, and I agree:

[14] It is appropriate for this court to rely on the findings in these decisions as evidence of past parenting under subsection 50(1) of the Act. The society properly restricted its reliance on past parenting evidence to the findings set out in these two decisions; it did not present the court with additional past parenting evidence, which could overwhelm the mother’s ability to address it, particularly on a summary judgment motion. See: Catholic Children’s Aid Society of Toronto v. V.W. and A.A.-C., 2001 28092, 20 R.F.L. (5th) 307, [2001] O.J. No. 2226, 2001 CarswellOnt 1895 (Ont. C.J.); Kawartha-Haliburton Children’s Aid Society v. D.C., 2002 53209, 32 R.F.L. (5th) 362, [2002] O.J. No. 3864, 2002 CarswellOnt 3304 (Ont. Fam. Ct.); and Children’s Aid Society of Bruce County v. I.Bu., J.M.Br. and Saugeen First Nation Band, 2004 ONCJ 454, [2004] O.J. No. 6260, 2004 CarswellOnt 10004 (Ont. C.J.).

[33] The Manitoba Court of Appeal does not have an equivalent of s. 50(1) of the CFSA. In Manitoba (Director of Child & Family Services) v. A. (J.M.), the court referenced Kawartha-Haliburton Children’s Aid Society v. C. (D.) (2002), 2002 53209 (ON SC), 32 R.F.L. (5th) 362 (Ont. S.C.) (also relied on by Sherr J. above), and stated the following:

[27] In Kawartha-Haliburton, Nelson J. admitted into evidence reports and transcripts from an earlier child protection trial involving the same mother, but a different child. In his reasons, he referred to s. 50(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11, which states:

Consideration of past conduct toward children

50.(1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[28] The Act does not have a provision like s. 50(1) in Ontario’s child protection legislation that expressly contemplates reasons from an earlier decision being admissible into evidence in subsequent proceedings. While such a provision in Manitoba would be helpful, its absence does not mean that an earlier decision cannot be tendered into evidence. The question to be asked always is the relevance of such a decision to the issue before the court. Common sense says that an earlier decision about a parent’s ability to care for a child is very relevant in a subsequent child protection trial involving that parent.

[29] We find support for this conclusion in the reasoning of the British Columbia Court of Appeal in J. (L.) v. British Columbia (Director of Child, Family & Community Services), 2000 BCCA 446, 189 D.L.R. (4th) 458 (B.C. C.A.). In that case, the court had to consider British Columbia’s child protection legislation, which also does not have a provision like s. 50(1) of the Ontario legislation. The Court of Appeal held that the trial judge has a great deal of discretion “to craft a proceeding that is appropriate in the circumstances of the particular case” (at para. 34) and upheld the decision of the trial judge to admit findings from a prior proceeding into evidence. The Court of Appeal relied on the remedial nature of the legislation to protect the best interests of children, as well as the provision that permits informality of proceedings, similar to s. 36 of the Act.

[30] In Kawartha-Haliburton, Nelson J. wisely cautioned against permitting an earlier decision to overwhelm the current proceedings (at para. 18):

Although the purpose of subsection 50(1) of the Act is to ensure that the court hearing a protection matter has before it information of a party’s past conduct towards children, this should not involve a detailed review of all of the evidence previously taken into account. This is especially so, where, as here, the judge hearing the earlier trial wrote a careful and detailed decision and made findings of fact with respect to the mother's mental health. The earlier decision forms the backdrop necessary from which to measure change. To allow admission of the same evidence that has already been dealt with would be to invite relitigation of many of the points previously raised.

[31] We agree with CFS that s. 36 of the Act provides a judge with broad discretion in how to conduct a child protection proceeding. But the principled basis for admitting a prior decision must always be its relevance to the issue to be decided. Before admitting a prior decision into evidence, the parties and the judge should understand the purpose for which that evidence is tendered. Care must be taken to ensure that prior decisions, no matter how relevant, cannot be used in a manner that shifts the onus, informally or otherwise, from an applicant agency to a parent by requiring the parent to demonstrate change.

[32] Certainly there was no shifting of onus here. The trial judge was careful to state that the findings of Stefanson J. were not determinative of the issue before her. Her use of the reasons of Stefanson J. were appropriate, careful and an efficient manner of establishing the past parenting history of the appellant. She understood that these reasons and the permanent orders of guardianship that Stefanson J. ordered were relevant and necessary contextual information for the “watershed issue” before her as to whether the appellant “continues to suffer from mental illness and, if so, whether any steps she has taken to address her illness may allow her to remain involved in the parenting of D.V.P.A. and C.H.A.” (at para. 21). [Emphasis added.]

[34] The motions judge did not reverse the onus on the parents. She appropriately and correctly applied the analysis required by Family Law Rule 16. She was satisfied that the Society’s evidence established on a balance of probabilities that there was no genuine issue requiring a trial. The parents had to provide evidence to support the conclusion that there was a genuine issue requiring a trial, pursuant to Family Law Rules 16(4) and 16(4.1):

(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.

[35] Again referring to Catholic Children’s Aid Society of Toronto v. L.M., Sherr J. succinctly and correctly sets out the law on motions for summary judgment in child protection cases:

[6] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine whether there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. See Children’s Aid Society of Hamilton v. M.N. and H.S.N., 2007 13503, 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 CarswellOnt 2453 (Ont. Fam. Ct.).

[7] Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child’s future. See Jewish Family and Child Service of Toronto v. R.A. and J.G. (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J. No. 47, 2001 CarswellOnt 73 (Ont. S.C.); affirming Jewish Family and Child Service of Toronto v. R.A. and J.G., 2000 22546, [2000] O.J. No. 6045, 2000 CarswellOnt 5169 (Ont. C.J.).

[8] A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. See Children’s Aid Society of Toronto v. K.T. and C.W., 2000 20578, 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 CarswellOnt 4827 (Ont. C.J.).

[9] The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact. See Children’s Aid Society of Toronto v. K.T. and C.W., supra; and Children’s Aid Society of Waterloo Region v. T.L.H. and D.S.C., 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028, [2005] O.J. No. 2371, 2005 CarswellOnt 8104 (Ont. C.J.).

[10] As Justice Alex Pazaratz stated at paragraph [43] of Children’s Aid Society of Niagara Region v. S.C. and B.M., 2008 52309, 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5929 (Ont. Fam. Ct.): “no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.”

Disposition

[36] In summary judgment appeals, we have the same material as a motions judge. In this case we also had fresh evidence.

[37] The motions judge made findings of mixed fact and law. We are not persuaded that her decision contained palpable and overriding errors.We considered the passage of time, the child’s age, and no new evidence that would lead us to conclude that there is any realistic possibility of an outcome other than that as sought by the Society.

[38] The appeal is dismissed without costs.

CZUTRIN S.F.J.S.C.

KITELEY J.

WHITAKER J.

Released: April 7, 2014

[^1]: Child and Family Services Acr Subsection 70(4)

Six-month extension

(4)Subject to paragraphs 2 and 4 of subsection 57 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so. 1999, c. 2, s. 21 (3).

Child and Family Services Act subsection 57(1)-(4)

Order where child in need of protection

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1); 2006, c. 5, s. 13 (1-3).

2014 ONSC 2140

DIVISIONAL COURT FILE NO.: DC-13-00552

DATE: 20140407

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Czutrin S.F.J.S.C., Kiteley and Whitaker JJ.

BETWEEN:

THE CHILDREN’S AID SOCIETY FOR THE COUNTY OF SIMCOE Applicant (Respondent in Appeal)

– and –

B.D and S.S. Respondents (Appellants on Appeal)

REASONS FOR JUDGMENT

Released: April 7, 2014