Court File and Parties

CITATION: CAS Ottawa v. I.C. 2017 ONSC 6935

DIVISONAL COURT FILE NO.: 16-DC-2235 Ottawa

DATE: 2017/11/21

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT – ONTARIO

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: Children’s Aid Society of Ottawa, Applicant/Respondent on Appeal

AND:

I.C., Respondent /Appellant in Appeal

BEFORE: Swinton, Linhares de Sousa and Favreau JJ.

COUNSEL: Danielle Marchand, Marie-Josée Ranger for the Applicant/Respondent on Appeal

I.C., Self-Represented

HEARD at Ottawa: November 20, 2017

Endorsement

BY THE COURT

[1] The Appellant mother appeals from the order of MacKinnon J. dated August 2, 2016 which granted a motion for summary judgment after a hybrid hearing. The motion judge found that the Appellant’s two children, I. and Z., were in need of protection because they were at risk of physical and emotional harm. She concluded that it was in the best interests of the two children that they be made Crown wards because of the mother’s failure to obtain ongoing psychiatric treatment for herself and the mother’s failure to show some ability and intention to cooperate with the Society.

[2] Finally, the motion judge concluded that there should not be any access by the mother to Z., who was then under two years of age. With respect to I., the motion judge ordered supervised access, not exceeding once per week. She ordered that “…the frequency and duration should depend on whether the contact is positive for I. and whether he wants it to continue” (Order para. 4).

[3] The Appellant argues that the motion judge erred in finding there was no genuine issue for trial respecting the issues of whether the children were in need of protection, whether a supervision order to the mother would be in the children’s best interests and whether access should be granted to Z. She argued that the judge made palpable and overriding errors of fact in disregarding relevant evidence regarding I.’s foster care; that she had ineffective counsel at the hearing; and that the Children’s Lawyer misrepresented the genuine wishes and preferences of I.

[4] In our view the motion judge set out and applied correctly the legal principles relevant to granting summary judgment. Furthermore, the motion judge correctly stated the statutory test for determining that the children were in need of protection and that an order for Crown wardship was in their best interests.

[5] With respect to the motion judge’s consideration of the evidence, we cannot find any palpable and overriding error. There is ample evidence to support her findings with respect to the risk of harm to the children. Therefore, she correctly held that there was no genuine issue for trial concerning the need of protection.

[6] The Appellant submits that the motion judge disregarded relevant evidence supporting her submissions that I. was in an abusive foster home. Based on all of the evidence before the motion judge, we cannot find any error in the motion judge’s conclusion that the mother’s allegations of abuse “were not proven”.

[7] Given the young age of Z. and the special needs of I., the Appellant’s refusal to follow through with medical treatment for her mental health, her refusal and inability to cooperate with the Society and the documented history of how she exercised access to her children, the motion judge rightly concluded that the children could not be adequately protected if they were in the care of their mother. As well, there was ample evidence to support her conclusion that an order for Crown wardship was in the best interests of the children, and that there was no genuine issue for trial regarding this final disposition.

[8] With respect to the motion judge’s decision on access to Z., we can find no error in the factors considered by the motion judge in concluding that there should be no access to Z. She clearly was alive to the relevant test found in s. 59(2.1) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as seen in her reasons at para. 66.

[9] The Appellant has also raised the issue of the unfairness of proceeding by way of summary judgment. The Court clearly has the jurisdiction to grant a final order by way of summary judgment in child protection proceedings. Furthermore these proceedings were a hybrid proceeding whereby the mother was able to give viva voce evidence, as well as cross-examine Dr. Wood on his report, to which she objected. The mother also was represented by counsel throughout the proceedings.

[10] The Appellant argues on this appeal that she had ineffective assistance from counsel at the hearing. Having considered the issue and the record, we cannot find that the test in R. v. Archer (2005), 2005 36444 (ON CA), 203 O.A.C. 56 has been met.

[11] The Appellant submits that I., although represented by his own lawyer, was denied a voice at the hearing and that his lawyer misrepresented his genuine wishes and preferences to be reunited with his mother. At paragraphs 61 and 62, the motion judge was clearly aware of I.’s early preference and wish to return to the care of his mother. However, by the time of the hearing, particularly after living through his mother’s unilateral decision to cut off contact with I. in May of 2016, it is evident that he no longer wished to return to the care of his mother.

[12] There is no basis for appellate intervention. The order of Crown wardship was clearly in the best interests of the children, and there was no genuine issue requiring a trial, as correctly found by the judge. Accordingly, the appeal is dismissed.

Swinton J.

Linhares de Sousa J.

Favreau J.

Date Released: November 21, 2017