Kawartha-Haliburton Children’s Aid Society v. M.W., 2018 ONSC 2783

Court File and Parties

CITATION: Kawartha-Haliburton Children’s Aid Society v. M.W., 2018 ONSC 2783

DIVISIONAL COURT FILE NO.: DC-17-1060

DATE: 20180507

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, BROAD, AND MYERS JJ.

BETWEEN:

KAWARTHA-HALIBURTON CHILDREN’S AID SOCIETY Applicant (Respondent in appeal)

– and –

M.W. Respondent (Appellant in appeal)

-and-

CURVE LAKE FIRST NATION Respondent (Respondent in appeal)

-and-

OFFICE OF THE CHILDREN’S LAWYER Respondent (Respondent in appeal)

Counsel: Belinda Jesudasan, Lawyer for the Kawartha-Haliburton Children’s Aid Society Christopher Spear, Lawyer for M.W. Ian Ross, Lawyer for the Office of the Children’s Lawyer

HEARD at Toronto: April 23, 2018

REASONS FOR JUDGMENT

F.L. Myers J.:

The Appeal

1M.W. appeals from the order made by Mr. Justice A.R. Rowsell granting summary judgment dated October 13, 2017 in a child protection hearing to determine whether six of her children should be made Crown wards. No one appeals the motion judge’s declarations that the six children were in need of protection and that they should be declared Crown wards for purposes of adoption.

2The appeal is limited to challenging the motion judge’s order to deny M.W. access to her four eldest children. M.W. is supported in the appeal by the Office of the Children’s Lawyer (“OCL”).

3Each of the six children bears impacts from the neglect and abuse that he or she has suffered. The three youngest children have already been placed in a foster home together. Their adoption by the foster parents awaits the outcome of this appeal. The three eldest children are in foster homes but their prospects for adoption are uncertain.

4The motion judge ordered that the three eldest children are to have access to each other and that the two groups will have access to each other a minimum of three times per year.

5A. W-G. is the oldest of the group of three younger children. The motion judge ordered that she was not required to attend access visits with the older group of children that are not therapeutically beneficial to her in the discretion of the respondent Kawartha-Haliburton Children’s Aid Society (the “society”). M.W. and the OCL purported to appeal the denial to M.W. of access to A. W-G. At para. 5 of the motion judge’s reasons however, he makes it clear that M.W. had not sought access to A. W-G. in the proceeding below. The affidavit evidence from the OCL does not discuss A. W-G’s wishes, although it discusses the three eldest children. In my view, there is no appeal properly before this court with respect to the decision below respecting A. W-G.

The Facts

6There is little dispute as to the facts. That is, the who, what, where, how, and why (or who did what to whom; when) is not really in doubt.

7M.W. is the mother of the six children whose biographical details are set out in the chart on p. 3 of the society’s notice of application dated September 9, 2015. It is found at p. 29 of the appeal book and compendium. Although the judge failed to set out expressly the specifics of the biographical details required by s. 47 (2) of the Child and Family Services Act, RSO 1990, c. C.11 (“CFSA”), the chart is incorporated by reference into these reasons and the details should be set out in the order disposing of this appeal. I do not list the details in these reasons to preserve the privacy of the children.¹

8The society first became involved with M.W. in 2007. At that time, it described her house as “dirty.” The youngest two children, twins, had severe diaper rash. One had infected sores. There was food on the furniture and human feces on the rug and wall. Rent was in arrears.

9The twins suffered flat head syndrome from spending too much time in their cribs and consequent delayed development. M.W. and her then spouse did not follow up with the Hospital for Sick Children or carry out its recommendations for them. The society verified that M.W. and her spouse physically and excessively disciplined the children. They would also leave the children in the care of the eldest child who had his own special needs and could not care for himself. The children showed sexualized behaviour when they were taken into care.

10M.W.’s spouse at the time suffered from major depressive disorder. In dealing with the society he did not regulate his emotions. He threatened a society employee. The society verified domestic violence allegations between M.W. and her partners (including her then spouse). Moreover, there is undisputed evidence that M.W. left the children in the care of that spouse when she went on two trips to Jamaica with boyfriends.

11Each of the six children suffers from developmental delays of varying severity. The eldest three also have attachment problems. One has an emotional regulation problem and another has an aggressiveness problem. A. W-G. suffers anxiety as well. She often vomited before and after access sessions with M.W. The twins showed no attachment to their sibling A. W-G.

12The society conducted a comprehensive review of the children’s circumstances under s. 54 the CFSA. The 73 page assessment report was submitted to the Superior Court on July 8, 2016. There are a full seven pages listing the assessors’ sources of information including: personal interviews, telephone contacts, reports reviewed, school and health records reviewed, medical assessments reviewed, and various correspondence. It is a thorough and detailed document. It answers some specific questions that were posed with the input of counsel and the court. I will return below to the question of its relevance with respect to access below.

13The assessment found that as at its date M.W. did not have the ability to provide adequate care for the four eldest children. The assessors reported:

It is possible that [M.W.] could develop the ability to care for a child in the future, particularly if she does not use substances while pregnant and if that child is well cared for from birth and does not experience the kind of instability and neglect from an early age that her other children have. The undersigned assessors are quite pessimistic about her ability to manage the care of a future child on her own, however, and she would need to consistently demonstrate that she has made significant changes to her lifestyle, her parenting knowledge, her ability to regulate her emotions and her ability to follow through with services, including close child protection supervision, the involvement of the public health department and any other relevant parenting supports. [M.W.] does not demonstrate these abilities at present.

14Among a number of other recommendations for the treatment and care for the children, the assessment recommended that the children be found in need of protection and be made Crown wards with no access being provided to M.W.

15The report notes M.W.’s indigenous heritage. She is a member of the Curve Lake First Nation. The society saw to it that Curve Lake First Nation was named as a party to the proceedings below. All relevant materials were served on the Curve Lake First Nation including a copy of the society’s assessment. The Curve Lake First Nation has chosen to refrain from appearing below or on the appeal. Its Band Representative did deliver a letter to M.W.’s counsel supporting M.W.’s decision to relinquish custody of her children for adoption. The Band Representative also expressed support for M.W. to have access to the children and expressed the view that it is imperative that the children have continued access to “their cultural identity, background and personal origin”.

16The society plainly accepts and seeks to maximize the children’s exposure to and involvement with their heritage. Two of the eldest three children live in the territory of the Curve Lake First Nation and attend Curve Lake First Nations School. The four who are old enough are also involved in programming at the Nogojiwanong Friendship Centre. The society has kept the Curve Lake First Nation up-to-speed on the process throughout.

17The society brought a motion for summary judgment. The OCL took the lead in delivering material responding to the motion. It sought access to the mother on behalf of the three older children as well as access by the children to each other. The OCL delivered affidavits expressing the views and preferences of the three eldest children. It put into evidence contact logs. The society also adduced evidence describing M.W.’s access visits with the children.

18M.W. delivered two brief affidavits. In her initial affidavit sworn November 2, 2015, M.W. opposed placing the children for adoption. She asked for the return to her care of the four eldest children and she asked for access to the twins.

19M.W. delivered another affidavit sworn November 1, 2016 a year later and shortly before the hearing of the motion. In it, she makes a general dispute of the allegations against her and states her commitment to personal growth. She swears that she is “prepared to offer a solution in support of the best interests of my children.” She set out the terms of her offer as follows:

[4] To that end, consistent with the best interests of my children, I am prepared to consider agreeing to Crown Wardship for the children but with specified access on mutually agreeable terms and with an undertaking by the Society to seek openness and an openness order at the time of placement for adoption.

[5] I propose that all parties meet soon to discuss the resolution. I seek specified substantial access to all six children in the form of providing me with the opportunity to send letters, cards, and gifts on specified occasions, telephone calls at specified times and a minimum of two access visits per month, consistent with the health and well-being and interests of the children.

[6] This is proposed so that the children will have continued access to their cultural identity, background and personal origin. It is in their best interests to maintain contact with me and with their First Nations heritage. I am the best vehicle through which to achieve this goal as family is of great importance to First Nations culture and I am their birth mother.

20After attesting to her deep love for her children she concludes:

[13] It is after much soul-searching that I reach the conclusion that it is in the best interests of my children that I must seek to be connected to them in a real way forever as referenced herein and to that end I am prepared to do whatever it takes to be the best mother to them that I can be.

The Decision of the Motion Judge

21With no one opposing Crown wardship, the hearing centred on access. M.W. and the OCL sought varying degrees of access as discussed above. The motion judge noted that the society opposed any access order other than one allowing the eldest three children to have sibling access at the society’s discretion.

22The motion judge described the legal issue before him as turning on s. 59 (2.1) of the CFSA. That subsection provides that the court shall not make an access order to a Crown ward unless the judge is satisfied that:

(a) the relationship between the person and the child is beneficial and meaningful to the child…

23There are other tests to be met under ss. 57 to 59 of the statute including, of course, an assessment of the best interests of each child. However, proof of a beneficial and meaningful relationship is the first hurdle.

24There was no dispute that under the relevant case law, a person seeking access must prove that he or she has a relationship with the Crown ward that brings a significant positive advantage to the child. In para. 25 of his decision, the motion judge discussed the decision of Horkins J. in Children’s Aid Society of Toronto v A.G., 2015 ONSC 6638, for the proposition that if there is no genuine issue requiring a trial on whether the relationship is meaningful and beneficial to a child, the analysis must end. If there is no relationship of the required quality, the court has no discretion under the CFSA to consider other issues or to make an order other than a final order for Crown wardship with no access.

25In para. 27 of his reasons, the motion judge quoted at length from A.G. and the case law relied upon in that decision by Horkins J. to note that it is not enough for the person seeking access to prove that she loves the children or that the children appear to enjoy access visits with her. As she concluded at para. 75 of A.G.,”[s]uch evidence does not give rise to a serious issue requiring a trial.” A person’s desire to resume care with a promise of future positive prospects is similarly not enough to raise a serious issue requiring a trial. “The evidence must be based on the here and now and be in existence at the time of the motion.” C.J. v K.E., 2013 ONSC 63 at para 55.

26I agree that keeping the focus on the present is fundamental. The motion judge quoted from Children’s Aid Society of Niagara Region v. M.J., 2004 2667 (ON SC) at para. 46, for the principle that “…the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.”

27The Court of Appeal has stressed the obligation to “minimize delay and promote finality for children.” C.M.E.M. v Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612 at para. 35.

28In addressing the access issue below, M.W. submitted that the matter should go to trial to allow experts to provide evidence on the strength of her relationship with the children. Her counsel also submitted that the volume of M.W.’s visits with the children suggest that access is meaningful and beneficial and that the relationship between children and mother is healthy. The OCL also relied upon the three older children’s expressed views and preferences.

29The motion judge went through the unopposed issues relating to the declaration of the children as Crown wards and satisfied himself that the children were indeed in need of protection and that declarations of Crown wardship were appropriate. In para. 60, he then recited s. 59 (2.1) and the test of a “beneficial and meaningful relationship.” He rightly cautioned himself to consider the quality of the relationships; that they must be significantly advantageous and based in the present. He then simply concluded at para. 62 of his reasons:

I do not find that the children’s access to mother is meaningful and beneficial. I do find that access to each other is meaningful and beneficial.

Grounds of Appeal

30M.W.’s principal argument is that the motion judge’s reasons fail to set out the basis upon which he decided that summary judgment was appropriate or that her relationship with the children was not beneficial and meaningful. She submits that the judge reversed the burden of proof by requiring her to show that she had a beneficial and meaningful relationship rather than requiring the society to show that she could not prove at trial that she has a sufficient relationship.

31The OCL supports those two grounds and adds the ground that the judge erred in finding that the children’s access to their mother was not beneficial and meaningful when under s. 59 (2.1)(a) of the statute he should have considered their relationship with her.

Jurisdiction

32This court has jurisdiction to hear an appeal from the judgment of the Family Court in a proceeding under Part III of the CFSA pursuant to s. 69(1) of that act as modified by s. 21.9.1 of the Courts of Justice Act, RSO 1990, c. C.43.

Standard of Review

33The standard of review on an appeal under the CFSA granting summary judgment is set out by Goodman J. at para. 18 of Children’s Aid Society of the Regional Municipality of Waterloo v A.M., 2015 ONSC 2496 (S.C.J.) as follows:

On pure questions of law, the standard of review is correctness. On findings of fact, the reviewing court ought not to interfere unless it is established that there has been a palpable and overriding error. On questions of mixed fact and law, the palpable and overriding error standard applies unless there is an extricable error of law: Housen v. Nikolaisen, 2002 SCC 33, Archer v. Archer, 2005 CarswellOnt 1515 (Ont. CA) Catholic Children’s Aid Society of Hamilton v. R. (C.), 2009 34047 (ON SCDC), 2009 CarswellOnt 3850 (Ont. Div. Ct.).

34At para. 19 of that decision, Goodman J. found that the question of whether there is a genuine issue requiring a trial is a question of law to which a correctness standard applies. However, in Hryniak v Mauldin, 2014 SCC 7, at paras. 80 to 84 the Supreme Court of Canada changed the law applicable to the standard of review of summary judgment decisions. Karakatsanis J. wrote:

[80] The Court of Appeal concluded that determining the appropriate test for summary judgment — whether there is a genuine issue requiring a trial — is a legal question, reviewable on a correctness standard, while any factual determinations made by the motion judge will attract deference.

[81] In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.

[82] Similarly, the question of whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference.

[83] Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

[84] Of course, where the motion judge applies an incorrect principle of law, or errs with regard to a purely legal question, such as the elements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard: Housen, at para. 8.

35Therefore, absent an error of law, a judge’s decision to exercise summary judgment powers is entitled to deference. As will be seen below, in this case, the judge made an error of law in describing the test for summary judgment. As such, the decision is indeed reviewable on a correctness standard. However, where the test is correctly stated, the question of how it applies in any given case is subject to deference as set out by the Supreme Court of Canada.

Summary Judgment Principles

36The parties placed before the motion judge a number of decisions concerning summary judgment in the child protection context that appear to be premised on a pre-2014 understanding of summary judgment. This led to some confusion as to the applicable legal tests and the applicable burdens of proof. The confusion continued before this court with each of the parties arguing in their factums and orally about who has the burden to show that they will likely succeed at trial or that the other cannot possibly succeed at trial. The answer is no one.

37Rule 16 of the Family Law Rules, O. Reg. 114/99 was amended in 2015 to mirror Rule 20 of the Rules of Civil Procedure, RRO 1990, Reg. 194. The relevant parts of Rule 16 provide:

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.

16 (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court 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:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

38Subrule 16 (2) expressly provides that the summary judgment rule applies to child protection cases such as this one.

39In Hryniak v Mauldin, 2014 SCC 7, the Supreme Court of Canada heralded a new approach to summary judgment to foster and enhance access to civil justice in Canada. The Supreme Court recognized that the cost and delays associated with lawsuits that proceed to trials were preventing people from being able to obtain a true measure of civil justice. Even if successful at trial, the court explained, that the cost and delay may be disproportionate and prevent the outcome of being a truly just one. The court called for a “culture shift” away from civil trials toward a more efficient, affordable, and proportionate civil dispute resolution process.

40At para. 36 of Hryniak, Karakatsanis J. set out the key change in approach to summary judgment as follows:

These reforms embody the evolution of summary judgment rules from highly restricted tools used to weed out clearly unmeritorious claims or defences to their current status as a legitimate alternative means for adjudicating and resolving legal disputes.

41The Court explained that using summary judgment simply as a tool to weed out the weakest claims leaving all other cases for trial was no longer an appropriate approach. Rather, summary judgment is recognized as its own, separate, alternative process to resolve cases. “The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial.” Hryniak at para. 34. To find the faster, cheaper outcome, the test for determining whether there is a “serious issue requiring a trial” must now focus on whether a summary process will provide a fair outcome in the interests of justice. The goal is to avoid slow and expensive trials where it is fair and just to resolve the case without a trial.

42The test for determining whether a matter can proceed by way of summary judgment, that is, whether there is a genuine issue requiring a trial, was set out by the court at para. 49 of Hryniak as follows:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

43The process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial.

44The Supreme Court of Canada laid out a specific roadmap detailing the questions to be asked by a judge in deciding whether the case is one that should be dealt with summarily. At para. 66 of Hryniak, Karakatsanis J. wrote:

…the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.... If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers.... She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

45At para. 43 of the decision below, the judge was misdirected by the pre-Hryniak case law submitted by the parties that dictated a consideration of likely trial outcomes as the determinant of whether summary judgment ought to be available. He considered whether it was “plain and obvious that the action cannot succeed” and whether there was “no realistic possibility of an outcome other than that as sought by the applicant.” This led the parties before this court into a debate over which party has the burden to prove the likely trial outcome – the society, on which Rule 16 (4) places a burden to show that there is no genuine issue requiring a trial; or M.W. who bears the burden under s. 59 (2.1)(a) of the CFSA to prove that she and the children have beneficial and meaningful relationships.

46As a result, the judge never asked the key question of whether it was in the interest of justice for him to resolve the case summarily. To do so, he was required to consider whether the process allows him to make the necessary findings of fact, to apply the law to the facts, and is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow him to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure?

47In asking the wrong question, the judge set out the wrong legal test for determining whether there is a serious issue requiring a trial. That is an error of law that is not subject to deference in this court as discussed above. To the extent that the case law relied upon at para. 43 of the judge’s reasons and in the parties’ respective factums state that the test for summary judgment in a child protection matter turns on an assessment of whether the case has a very strong likelihood of success at trial, those cases are not good law after Hryniak and should no longer be relied upon for that purpose.² Rather, the correct approach is set out in Hryniak, as discussed, for example in A.G., above and in Children’s Aid Society of Ottawa v. C. (I.), 2016 ONSC 4792 at paras. 14 to 16 and 64 to 65, affirmed, 2017 ONSC 6935 (Div. Ct.).

48There are procedural guidelines that have been developed to assist the court in making the determination of whether there is a genuine issue requiring a trial. First, the burden of proof is on the party who moves for summary judgment. Sanzone v. Schechter, 2016 ONCA 566 at para. 30. But that burden is not to prove on the merits that there is no beneficial and meaningful relationship between and among M.W. and the children. Rather, under Rule 16 (4) the moving party must “set out specific facts showing that there is no genuine issue requiring a trial.” The party must satisfy the judge that it is in the interest of justice that the case be decided summarily asking the appropriate questions set out in Hryniak.

49Rule 16 (4.1) then dictates how a party who wishes to resist summary judgment is to respond, as follows:

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.

50In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, 242 A.C.W.S. (3d) 794, affirmed 2014 ONCA 878, Corbett J. confirmed the continued applicability of the rules requiring the responding party to “put its best foot forward” or “lead trumps or risk losing”. Combined Air Mechanical Services v. Flesch, 2011 ONCA 764 at para 56; Bhakhri, v. Valentin, 2012 CarswellOnt 6667 (S.C.J.), para. 7; Pizza v. Gillespie (1990), 1990 4023 (ON SC). The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665 at para. 30.

Analysis of the Access Issue

“Access” v “Relationship”

51While the judge used the word “access” in his ultimate finding at para. 62, he had plainly directed himself appropriately concerning the issue in his review of s. 59 (2.1) of the statute. I note that the parties too discussed the benefits and meaningfulness of access as discussed above in para [28] for example. In any event, this issue will be resolved when I deal with the analysis under s. 59 (2.1)(a) under Hryniak below.

Burden of Proof

52Similarly, the burden of proof issue is not resolved as asserted by either party. As noted above, neither had a burden to prove the overwhelming strength or lack of strength of the case at trial. This issue too is resolved by the correct application of Hryniak.

Lack of Intelligible Reasons

53I agree with the appellant and the OCL that the motion judge’s reasons do not set out the basis for his findings that there is no serious issue requiring a trial or that M.W.’s access [or relationship] is not beneficial or meaningful to the children.

54In Read Jones Christoffersen Ltd. v. Neilas Inc., 2016 ONCA 321, Brown J.A. discussed the need for judges to set out their reasons for awarding summary judgment as follows:

[4] …Judges hearing summary judgment motions must provide meaningful reasons explaining their disposition of summary judgment motions.

[5] The minimum standards summary judgment motion judges must meet were set out by this court in Barbieri v. Matronardi, 2014 ONCA 416, at para. 22:

In order to allow for meaningful appellate review, the decision of the court must, at a minimum, provide some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion.

[6] The endorsement of the motion judge in the present case failed to meet these minimum standards; it amounted to a failure by the motion judge to give any reasons. As was the case in Barbieri, in the present case “[t]he motion judge’s endorsement does not contain necessary findings of fact and is so lacking in analysis that it impedes meaningful appellate review”: at para. 23. Where the appellate court cannot understand the legal basis for the decision or the factual findings made in support thereof, the decision of the summary motion judge is not entitled to any deference.

55The appellants rely on the dissenting reasons of Pardu JA in R. v. Black, 2017 ONCA 599 , in which she relies upon the following passage from R. v. Dinardo, [2008] 1 SCR 788, 2008 SCC 24:

[32] This Court emphasized in Sheppard that no error will be found where the basis for the trial judge’s conclusion is “apparent from the record, even without being articulated” (para. 55). If the trial judge’s reasons are deficient, the reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record. This exercise is not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge. Where the trial judge’s reasoning is not apparent from the reasons or the record, as in the instant case, the appeal court ought not to substitute its own analysis for that of the trial judge (Sheppard, at paras. 52 and 55).

56The Supreme Court of Canada endorsed the opinion of Pardu JA at 2018 SCC 10.

57In VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 FC 25, 2000 16275 (FCA), at para. 22, J. Edgar Sexton, JA wrote, “The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion.” Yet that is what the motion judge did in this case.

In a proper case, an Appellate Court may make Findings that Judge did not make

58Both Black and Dinardo are criminal law cases rather than civil cases. The scope of appellate review is governed by the Criminal Code of Canada in those cases rather than by the Courts of Justice Act that applies in this case. The Criminal Code is concerned with assuring the rights of the accused. Civil justice is concerned with ensuring an efficient, affordable, proportionate, and fair resolution for the parties. Child protection cases, perhaps more than any other, are also supposed to be focused on avoiding harmful delays. Subsection 134 (1) of the Courts of Justice Act provides very broad powers to an appeal court to correct errors as follows:

134 (1) Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

59On its face, s. 134 (1)(a) authorizes this court to make any order that the judge below ought to have made. In Read Jones Christoffersen Ltd Brown JA declined to resolve the summary judgment issue afresh because there were contested issues of fact that the judge had not resolved. In addition, he identified other procedural issues that he found precluded the court from being “persuaded that it would be fair to decide the claim and counterclaim on the record before us.” The question in a civil case is whether it is fair and appropriate for an appellate court to make findings where the court below did not articulate the findings in its reasons.

60In my view, it is both fair and important for this court to resolve the summary judgment issue if it is able to do so on the record. The children were taken into care in September 2015, almost two years before the hearing of the summary judgment motion. Another seven months have now passed since the decision. Some of the delay rests on the parents’ side of the ledger. Much, unfortunately, has been systemic. It is vital that the children receive the certainty that their well-being requires and to which they are entitled as soon as it is possible to do so appropriately.

There is no Serious Issue Requiring a Trial

The Record is Complete

61The first question for this Court is to assess the fairness and appropriateness of proceeding summarily and consider from the record if the answer to this question is patent in the motion judge’s reasons. Counsel for the appellant was unable to provide a basis on which a trial might be required. The record is complete. There are reams of contemporaneous social worker notes of visits and the very complete assessment report. M.W. has delivered two affidavits as her position evolved. The three eldest children’s views and preferences are before the court. No one sought to question any witnesses below. Rule 16 (3) provides for questioning of the parties opposite as of right. No one sought consent or brought a motion for leave to question any other witness. No one sought a case conference to obtain directions under para. 70 of Hryniak to seek any procedural rights. As noted in Sweda therefore, the court is entitled to assume that all of the parties have put their best foot forward. None has shown the court that it has taken all reasonable steps to obtain needed information and that it would be unfair to proceed without a trial. In the absence of such efforts, it is not appropriate to respond to a motion to summary judgment by a bare plea that discovery or cross-examination at trial is required. ThyssenKrupp Elevator (Canada) Limited v. Amos, 2014 ONSC 3910, at paras. 43 to 45.

A Trial is not Required to Assess the Evidence

62Counsel for M.W. submitted that a trial is required because notes of social workers disclose that there were positive contacts between M.W. and the children at various access sessions; that she showed love and affection for the children at times; that she discussed indigenous background and did crafts with the children at times; and she has disciplined them appropriately. Counsel for the M.W. and the OCL argue that access can be as simple as sending a letter or a card once in a while if need be. But the appellant and the OCL also focus heavily on the need for the children to have a relationship with their mother so as to learn about their indigenous heritage.

63The society points to page 64 of the assessment report in which the assessors respond to a question asking them to assess the nature of the children’s attachment to M.W. and her then spouse.

This assessment found that the conditions in the home environment and the parenting that was received by [the four eldest children] when they were infants and toddlers was not conducive to them developing a healthy attachment to a significant caregiver. [M.W.] acknowledged that she neglected the children’s care, they were exposed to domestic violence and inappropriate adult contact and she failed to provide comfort and soothing to the children following episodes of domestic violence and conflict. Furthermore, the children have had multiple changes in [their] significant caregiver, including being apprehended in 2008, being placed with the [L’s] in 2014 and being placed in foster care in 2015, not to mention the fact that three different father figures have been in their lives thus far. During the unstructured play session for this assessment, the children did not demonstrate affection towards their mother and, indeed, they pulled away from [M.W.] when she attempted to hug them. [M.W.] reported that [two of the eldest three children] express anger towards her and have told her that they hate her.

This assessment found that [the four eldest children] do not have healthy attachments to their mother. [The eldest three children’s] attachments to their mother was found to be of an Ambivalent style, this arising from their exposure to neglectful and, at times, abusive treatment. Children with Ambivalent styles of attachment have tremendous difficult [sic] regulating their emotions, become very upset over seemingly small problems and cannot effectively soothe themselves once they become upset. Children with this attachment style are at very high risk of significant behavioural problems. [A. W-G., the eldest of the younger three] was found to have an Avoidant style of attachment towards her mother. Children with this style of attachment suppress their emotions for fear of being abused. Children with Avoidant attachment struggle with serious mental health issues, such as depression and anxiety. Severing the relationships between the children and [M.W.] would have a positive impact on their functioning and the level of stress that they currently experience.

64In my view, it is apparent from the evidence and the motion judge’s reasons why he found that he could decide the issues based on the record, satisfying the first rung of the Hryniak ladder, without access to expanded powers. Nothing said by or submitted by the appellant and the OCL establishes either a reason for requiring a trial or that any of the three eldest children enjoys a relationship with his mother that brings significant advantage to him. There is no argument that there is evidence missing that could not have been obtained by a party exercising due diligence. There is no need to resolve conflicting evidence. There is no real contest concerning the bulk of the evidence of pervasive abuse and neglect suffered by the children at adults’ hands.

65M.W. says expressly in para. 13 of her November 1, 2016 affidavit that she is, “prepared to do whatever it takes to be the best mother to them that I can be.” This is a most admirable promise and hope. But it is not any evidence at all of a beneficial and meaningful relationship between M.W. and any child. So too, her profession of her deep love for the children. I have no doubt that her evidence is truthful and sincere. But it is not evidence that there is an existing meaningful and beneficial relationship between M.W. and any child. Rather, the case law discussed above makes it clear that such evidence does not raise a serious issue requiring a trial.

The Society met its Burden of Proof to show that it was and is Fair and in the Interest of Justice to Proceed Summarily

66While the judge provided no analysis to disclose his reasoning in making his ultimate findings, it is apparent from an assessment of the nature of the issues, the nature of the evidence, and the strength of the case that the matter is one that is in the interest of justice to resolve summarily if it can be fairly done. A child protection matter requires as expeditious an outcome as fairness and justice allow. The issues in this case turn on a single finding of fact for each child as to the nature and strength of the relationship between the child and M.W. It is not a legally or factually complex case. Moreover, in this case, there is simply no evidence that any of the three eldest children has a beneficial and meaningful relationship with M.W. – one that is significantly advantageous to him - to come close to overcoming the statutory presumption that there is to be no access to Crown wards. Assuming, as I do, that the appellant and the OCL have adduced all of the evidence that they would have at trial, I can be very comfortable finding these facts and applying the law to them on the very full record before the court. Furthermore, it is fair and in the interests of justice to do so. There is no reason to subject the children to further delay while the parties await a trial that is not required to make the requisite findings. To the contrary, subjecting the children to a further delay would be a continuing failure of justice.

Applying M.W.’s Burden of Proof under s. 59 (2.1)(a)

67Once the court determines that the moving party has met its burden to show that there is no genuine issue requiring a trial, the summary judgment issues are spent or fall away so that case will then be determined summarily on the merits. The usual burden of proof will apply to the issue in dispute. In this case, s. 59 (2.1)(a) casts the burden on M.W. to prove on a balance of probabilities that she and the children have existing relationships that are meaningful and beneficial to each child.

68In Children’s Aid Society of Hamilton v K.C., N.B. and A.A., 2016 ONSC 2751, Pazaratz J. summarized the nature of the evidence required to meet the burden under s. 59 (2.1)(a) of the statute:

285. It takes more than pleasant encounters to constitute a "beneficial and meaningful" relationship for a child. The child must be bonded and emotionally attached to the parent before the first branch of the test in s.59(2.1) of the Act can be satisfied: Children's Aid Society of Niagara Region v. J.C., (2007), 2007 8919 (ON SCDC), 2007 8919 ; 36 R.F.L.(6th) 40 (Ont.Div.Ct.);Children's Aid Society of Owen Sound and Grey County v. T.T., 2005 24909 (ON SC), 2005 24909;2005 24909 (SCJ). As Sherr J. stated in Catholic Children's Aid Society of Toronto v. S.S. 2011 ONCJ 803, 2011 ONCJ 803 (OCJ): "Even if there are some positive aspects to the relationship between parent and child, that is not enough — it must be significantly advantageous to the child."

286. Even if instances of access are generally enjoyable for the child, the court may consider whether the beneficial aspects of visits outweigh the child's need for continuity of care, safety, consistency, and a secure placement as a member of a stable family. Children's Aid Society of Toronto v. M.A. (2006) 2006 1671 (ON SC), 2006 1671; O.J. No. 254 (SCJ). The quality of the relationship must be the focus. A parent has to show more than just that a child wants access and has a good time during visits. Children's Aid Society of Peel (Region) v. S. (M.), 2006 ONCJ 523, [2006] O.J. No. 5344 (OCJ).

287. Similarly, more is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being.

288. The court must also consider the potential detriment to the child if an access order is not made. Frontenac Children’s Aid Society v. C.T.& M.T., 2010 ONSC 3054 (SCJ); Children’s Aid Society of Toronto v. R.H. 2016 ONCJ 181, 2016 ONCJ 181 (OCJ).

69There was no evidence pointing to a relationship of that quality before the motion judge. He was able to recite the test and readily reach a conclusion. On the record before the court, without utilizing any of the enhanced fact-finding powers available on summary judgment, it is apparent that M.W. has not and cannot meet her burden to establish that she has a beneficial and meaningful relationship with any of the three eldest children that is significantly advantageous to him. Accordingly, she is not entitled to access to the children as Crown wards.

Disposition despite the Judge’s Failure to give Adequate Reasons

70It would have been preferable had the motions judge provided reasons for reaching his ultimate holdings. As noted above, it was an error of law not to provide reasons both for his decision to proceed summarily and then for his holding under s. 59 (2.1)(a) of the statute. It also had the unfortunate effect of depriving M.W. of a full understanding of the basis upon which her maternal rights were being severed despite her love for her children. However, under s. 134 of the Courts of Justice Act and assessing the relevant criteria under Hryniak, it is fair, reasonable, and in the interests of justice for this court to act on the record. The clarity of the evidence (or lack of evidence) makes the outcome and basis for it obvious.

71The New Brunswick Court of Appeal made this very point in Blanchard v. Légère, 2009 NBCA 2, at para. 17 as follows:

Oftentimes, the facts speak for themselves and the principles of law and factors upon which the judge’s decision is based are obvious, when taken in context and in light of the evidence as a whole. Appellate courts understand that trial judges often work under time constraints and that they do not always have the opportunity to explicitly take into account all of the relevant facts, factors or principles of law. Appellate courts are also mindful of the financial burden born by parties who must once again come before the courts to assert their rights.

72Given the severity of the children’s circumstances, the inordinate delays suffered by the children already, the completeness of the record, and the lack of any requests for procedural directions before the hearing of the motion, this is a case in which it is appropriate and fair for this court to make the finding summarily that the appellant has not met the burden of proof upon her to obtain an order for access to the children.

73The appeal is therefore dismissed. No one sought costs and therefore none are ordered.

Myers J.

I agree _______________________________

Swinton J.

I agree _______________________________

Broad J.

Release Date: May 7, 2018

Footnotes

1. 1There was a suggestion by the OCL in its factum and orally that the judge’s failure to determine and list the biographical details was a jurisdictional error that deprived him of the authority to make any other orders. Counsel for M.W. initially supported that position. However, the necessary implication of their argument is that if they are correct, the Crown wardship orders that they did not appeal had to be void as the judge lacked jurisdiction to make them. Moreover, they could not consent to invest the court with jurisdiction that it did not have. Both parties backed off the jurisdiction point and submitted that they were in the court’s hands with how to deal with the apparent error of law made by the judge in failing to declare the required details under s. 47 (2). While I in no way diminish the importance and mandatory nature of s. 47 (2), there was no contest as to the details below. This court is in as good a position as the motion judge to make those findings. I do not accept that the changes to the Indian Act (Canada) or the proclamation of the new Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, has any bearing on this issue. This issue was first raised in a factum. It is not a ground of appeal listed in the notice of appeal.
2. 2Children’s Aid Society of Oxford (County) v. J.(J.), 2003 2388 (ON SC), [2003] O.J. No. 2208 (Ont. S.C.) at para. 8; Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.), 1996 7271 (ON SC), [1996] O.J. No. 3018 (Ont. S.C.) at para. 80; Children’s Aid Society of Niagara Region v. C. (S.), 2008 52309 (ON SC), [2008] O.J. No. 3969 (Ont. S.C.) at para. 43; F v. Simcoe Muskoka Child, Youth & Family Services, 2017 ONSC 5402 at para. 23; Children’s Aid Society of Toronto v. CJW, 2017 ONCJ 212 at para 66; Children’s Aid Society of Toronto v RC, 2016 ONCJ 335 at para. 92.