Kawartha-Haliburton Children’s Aid Society v. K.S.L. and S.J.L., 2017 ONSC 658
CITATION: Kawartha-Haliburton Children’s Aid Society v. K.S.L. and S.J.L. 2017 ONSC 658
DIVISIONAL COURT FILE NO.: DC-16-00942-00
DATE: 20170126
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Kawartha-haliburton children’s aid society, Respondent
AND:
K.S.L.
S.J.L., Appellant
BEFORE: Kiteley, Kruzick, Myers JJ.
COUNSEL: B. Jesudasan, for the Respondent
L. Choi, for the for the Appellant Father
J. Long, for L.L.
HEARD at Oshawa: January 26, 2017
Information contained herein is prohibited from publication pursuant to s. 45(8) of the Child and Family Services Act
ENDORSEMENT
[1] L.L. was born […], 1999. On February 11, 2016 Justice McLeod heard submissions on the motion for summary judgment brought on behalf of the Society. In an endorsement dated March 3, 2016, [2016 ONSC 1197], McLeod J. concluded that the Society had established that there was no genuine issue requiring a trial, granted the motion for summary judgment, found L.L. was a child in need of protection pursuant to s. 37(2)(f) and 37(2)(g) of the Child and Family Services Act, and made an order declaring L.L. to be a Crown ward with access in the discretion of the Society in consultation with L.L.’s caregivers.
[2] L.L.’s father has brought an appeal from the decision. Mr. L.L. asks that this court make orders for the following:
Leave to admit the fresh evidence which is contained in his affidavit dated August 17, 2016 on the basis that the attached documents were not disclosed to the court below.
That the order for Crown wardship be set aside.
That this Court give directions for a mediation as it appears that the family is suffering together through miscommunication between themselves and especially the child.
And any order that this Court deems appropriate including trial of the matter as to whether L.L. was in need of protection at the time that she left home in May 2013.
[3] L.L.’s mother has never participated in the protection application proceedings and is not represented on this appeal.
Fresh Evidence
[4] Mr. L.L.’s lawyer has served his affidavit sworn August 17, 2016 with two exhibits attached. The first is a copy of his affidavit sworn July 15, 2014 and the second is a selection of about 50 pages of case notes from the Kawartha-Haliburton Children’s Aid Society starting in March 2013 and ending in March 2016. Counsel has asked that this evidence be received on the hearing of the appeal on the basis that the Society had the duty to be fair and to disclose to the court on the summary judgment motion the facts as they related to the issues of whether the child was in need of protection from her parents when the child left home in May 2013 and on the basis that the evidence is relevant in determining the best interests of the child.
[5] Counsel for the Society and for the child do not object to the Court receiving that evidence. Without determining whether the proposed evidence meets the relatively low threshold for admission on the hearing of an appeal given that it relates to the period before the summary judgment motion and not after the summary judgment motion and without determining that it is relevant in this appeal the Court has granted leave and has considered the evidence.
Amendment of Protection Application
[6] On September 25, 2015, the Kawartha-Haliburton CAS amended the protection application to ask for a finding pursuant to s. 37(2)(f), s. 37(2)(g), s. 37(2) (g.1) and s. 37(2)(i). In addition, the Society asked for an order that L.L. be made a Crown ward and placed in the care of the Kawartha-Haliburton CAS with access in the discretion of the Society in consultation with the child and the child’s treatment providers.
[7] It was not necessary for the Society to obtain permission from the court to make those amendments and particularly the amendment to seek Crown wardship. The amendment at the end of September 2015 with the hearing of the motion for summary judgment on February 11, 2016 did not result in procedural unfairness. Mr. L.L. took the opportunity to file an Answer in which, amongst other things, he proposed that L.L. be placed with a named husband and wife who were well regarded in the Korean community. He had ample opportunity to respond and did respond in his Answer and his affidavit sworn October 28, 2015.
Standard of Review:
[8] On this appeal the decision of McLeod J. consisted of findings of mixed fact and law. This Court must only intervene in the result if satisfied by counsel for the Appellant that the motions judge made “palpable and overriding errors”.
Whether L.L. was a child in need of protection
[9] Mr. L.L. raises an issue as to whether L.L. was “in need of protection” in May, 2013 when she left home at 14 years. We are not persuaded that that is relevant to this appeal.
[10] In April, 2014 Hatton J. made a temporary without prejudice order placing L.L. in the care of a non-family member.
[11] At a hearing on March 17, 2015 Justice Hughes made a temporary order placing L.L. in the care and custody of the Society. Justice Hughes did not make a finding L.L. was a child in need of protection, although she referred to the risk if L.L. were ordered returned to her parents.
[12] As Justice McLeod noted at paragraph 3, the statutory findings pursuant to s. 47(2) had been made.
[13] Justice McLeod was required to make a finding for purposes of the summary judgment motion and at paragraph 43, he concluded that L.L. was a child in need of protection pursuant to s. 37(2)(f) and 37(2)(g).
[14] The Motions Judge did not analyze all of the evidence in relation to those sections of the Child and Family Services Act to which he referred in his findings that L.L. was a child in need of protection but the summary of the evidence that he did provide amply supports those findings.
[15] We are not persuaded that the motions judge made a palpable and overriding error in concluding that L.L. was a child in need of protection.
Disposition: Crown wardship
[16] L.L. was almost 17 at the time of the summary judgment motion. The evidence provided indicated that L.L. had struggled enormously between ages 13 and 17 but her school reports, her mental health interventions, her recreational activities and her part time employment all pointed to significant recovery. Through her communications with the Society and specifically through her lawyer, L.L. made it clear that she would have nothing to do with her mother whom she had not seen since she left home at age 14 and did not want her father to initiate contact although she might contact him. She was clear that she needed closure on these proceedings so that her recovery could continue.
[17] L.L. had been in temporary care since April 2014. By early 2016, the disposition options open to the Society were limited. In order to reach a final conclusion on the proceedings, the Society amended its application and sought the order for Crown wardship. The motions judge did not specifically refer to the criteria in the CFSA for making such an order but the evidence before him left him to conclude that there was no genuine issue requiring a trial as to disposition.
[18] The motions judge made specific inquiries about L.L.’s capacity to express reliable views and preferences and was satisfied as to her capacity to do so.
[19] The motions judge was entitled to rely on the persuasive evidence that L.L.’s needs were clear and that only Crown wardship would give her the opportunity unfettered by these proceedings to work towards improved mental health. We are not persuaded that he made a palpable and overriding error.
[20] This case is a tragedy for the Father who wants to have a relationship with his daughter. We empathize with his sincere wish to have such a relationship but at the hearing before McLeod J., L.L.’s needs took priority.
[21] The appeal is dismissed.
Kiteley J.
I agree _______________________________
Kruzick J.
I agree _______________________________
Myers J.
Date: