WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45.— (8) Prohibition: identifying child.
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.
45.— (9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
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.
Court Information
Ontario Court of Justice
Date: July 20, 2017
Court File No.: C22623/03
Between:
Children's Aid Society of Toronto, Applicant
— AND —
L.S., Respondent / mother
M.W.1, Respondent / father of M.W.2 and J.S.
M.L., Respondent / father of K.A.S.
Before: Justice Debra Paulseth
Heard on: June 26, 2017
Decision on Summary Judgment Motion
Counsel:
- S. Fisch — counsel for the applicant society
- R. Aalto — counsel for the respondent/mother
- L. Talbot — counsel for the respondent/father M.W.
- S. Giannandrea — counsel for the Office of the Children's Lawyer
Paulseth, J.:
A. Introduction
[1] This is a Summary Judgment Motion brought by the Children's Aid Society of Toronto (the society) seeking a final custody order to the mother of the three children with restricted access to the father and a restraining order against the father.
[2] L.S. (mother) is the 32 year old mother of K.A.S., born 2003, M.W.2, born 2005, and J.S., born 2010.
[3] M.W.1 (father) is the father of the two younger girls and he is 34 years old. He and the mother were also the parents of one year old O. who died tragically from an accident in 2008. His current partner is K.W., with whom he has two other children, both under the age of 3. These two children are not directly involved in this case.
[4] The father of K.A.S. is not involved in this case.
[5] The society has been involved with the family on and off since 2002. The current proceeding began in 2014. On June 1, 2016, after hearing a Summary Judgment Motion brought by the society, Justice Carolyn Jones found the children to be in need of protection pursuant to subsection 37(2)(b) of the Child and Family Services Act (the Act) and placed them in the care of their mother under supervision by the society for 6 months.
[6] This is a Status Review Application, commenced on November 10, 2016. The society asks that a final custody order be made to the mother pursuant to section 57.1 of the Act. According to the society, father's conduct has not changed in any respect. He has only had two visits with his children since the date of the last order - June 27 and July 11, 2016. The society seeks an order of no access to the father. The society claims that the father has continued to harass, threaten, and abuse the mother. The society also wants a restraining order to protect mother and the children from the father.
[7] Father's first Answer agreed with the custody order to mother but took issue with the restraining order. On March 16, 2017, father amended his Answer/Plan of Care to seek custody of all the children himself. He disputes the previous court findings and blames the society and mother for his strained relationship with the children.
[8] The mother and the counsel for the children agree with the society's recommendation.
B. The Evidence Filed
[9] The society relies on the past findings of the court and the affidavit of the family service worker, Christina Wolfe, who has worked with this family since March, 2014.
[10] The father filed an affidavit.
C. Legal Considerations for Summary Judgment
[11] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue requiring a trial. See: Children's Aid Society of Hamilton v. M.N..
[12] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. See: C.R. v Children's Aid Society, 2013 ONSC 1357.
[13] 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..
[14] Children need final decision making to be done in a timely way that is sensitive to their needs. The legal process should not be used as a strategy to "buy" a parent time to develop an ability to parent or to delay the proceedings. There must be an arguable notion discernable from the parent's evidence that he or she faces some better prospects than what existed at the time of the society's intervention and he or she has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H..
[15] Justice A. Pazaratz stated at paragraph 43 of Children's Aid Society of the Niagara Region v. S.C.: "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."
[16] On May 2, 2015, the Family Law Rules (FLR) were amended to broaden the powers of the court on a summary judgment motion. Rule 16 (FLR) has now been amended to include the same summary judgment powers set out in sub-rules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure. These expanded powers, now set out in sub-rule 16 (6.1) (FLR), are:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[17] And Subrule 16 (6.2) provides:
ORAL EVIDENCE (MINI-TRIAL)
(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.
[18] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, set out the process to be followed in applying the expanded summary judgment rule in subrules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure.
[19] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers.
[20] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests 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 (paragraph 66).
[21] If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This is the mini-trial procedure set out in subrule 16 (6.2). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).
[22] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).
[23] The court in Hryniak also set out the following:
a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).
b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).
c) 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 (paragraph 34).
d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).
e) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).
f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).
g) On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding (paragraph 57).
h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial (paragraph 58).
[24] The principles in Hryniak have been applied to summary judgment motions in many child protection cases since the amendments to rule 16 became effective. See: Children's Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378; Children's Aid Society of Toronto v. L.S., 2015 ONCJ 527; Catholic Children's Aid Society of Toronto v. A.G., 2016 O.J. No. 4474 (OCJ); and Jewish Family and Child Service of Greater Toronto v. E.W. and R.C., 2016 O.J. No. 9 (OCJ).
A. Findings on Custody and Access
[25] In many respects the findings of Justice Jones in June of 2016 are still relevant today. In particular I quote these findings of fact from Justice Jones' decision:
There has been a history of domestic violence and abuse by the respondent father towards the respondent mother. The father has engaged in abusive, controlling, threatening and intimidating behaviour towards the mother, which continues and has not abated (page 15).
The evidence is very clear that the children have witnessed conflict and violence by their father towards their mother including considerable both physical and verbal violence.
The father has had very limited contact with the children over the last 2 years - since February of 2014, he has had only the 12 sanctioned visits - always supervised and in very structured environments - even that has been extremely problematic.
It is not very realistic to propose that father could have the full time care of the children.
Father has not been able to put his children's interests ahead of his own.
The evidence is very clear as well that the father has no insight into the protection concerns and therefore has not taken any effective steps to adequately address the protection concerns.
His threatening abusive controlling behaviour continues and he fails to understand the impact of his behaviour and the conflict on his children.
The father accepts no accountability for his role.
The father has not been cooperative with the society - he has used abusive threatening and aggressive language with staff.
The court is satisfied that there is an avalanche of evidence that there is no genuine issue for trial on any of the issues.
[26] Since the date of the last order, made by Justice Jones on June 1, 2016, the evidence is:
Father has only chosen to visit the children twice since the last order: June 27 and July 11, 2016.
Mother has continued to cooperate with the society and to place her children's needs first.
Father continues to dispute the findings of Justice Jones.
Father blames the society for statements by the children that they find his conduct upsetting.
Details of the June 27, 2016 visit are illuminating: M.W.2 refused to attend and father threatened to call the police if she didn't attend. Father was argumentative with everyone present about the visit being fully supervised rather than in the park. Father's new partner then explained to the children that the reason the visits hadn't happened in a while was because the society wasn't using a car seat for J.S. K.A.S. spoke about being upset with all the changes in her life and father's partner responded that change can be good - "I met your dad 2 years ago and now we have 2 children". Father and his partner got into an argument with a supervisor about the terms of the access order regarding M.W.2. K.A.S. asked "Why are you arguing"? Father refused to leave the building after the visit.
Details of the July 11, 2016 visit are: M.W.2 continuing to refuse to attend. K.A.S. arrived but started to cry and wasn't sure she wanted to go into the visit. Father and his partner brought two strange females and had to be asked by a supervisor to provide their names. At the end of the visit, father stated "There is no fucking way" that his children would be transported by the worker and he was going to call the police. The worker ignored him and took mother and the children to the car. Father, his partner and their two children remained in the parking lot until security asked them to leave. They then remained on the sidewalk in front of the society offices.
Despite communications from the society, father has chosen not to visit again.
B. The YouTube Video
[27] On March 27, 2017, a 25 minute video, dated December of 2014 was found on YouTube. It showed a child protection interview with M.W.2. The video was posted by an email address associated with the father. Father maintains that the email was an old dummy account and that mother must have uploaded it. He admits installing the video surveillance system in their previous home but maintains that it was well advertised through various stickers. Father's response was that he could not access the video to remove it as he had changed emails and passwords. Father's denial rings hollow on this issue. It was his email and his video system.
C. Craigslist Advertisement
[28] After the last Summary Judgment Motion was argued but before the decision was rendered, mother received several text messages from strange men responding to an ad on Craigslist that had been posted without her knowledge offering her services as a sex worker with her phone number and a photo. Mother called the police and father was interviewed because an old email address of father's was used and the photos were ones mother had only given to father some time ago. Father denies this. The police spoke to father at great length about this, but no charges were laid.
[29] Father's response to the society was to request a wellness check on his children and to claim mother had mental health difficulties.
D. The Children
[30] K.A.S. is 14. M.W.2 is turning 12. J.S. will be 7. They speak positively about their mother and also had an opportunity to visit their two previous foster parents. They love their two cats. They all attend school, although M.W.2 is often late. K.A.S. participates in a therapy program for the developmentally delayed at Surrey Place. M.W.2 has attended an Attention-Deficit/Hyperactivity Disorder clinic.
[31] The children and mother have all worked with a counsellor at Aisling Discoveries, a children's mental health centre. K.A.S. and M.W.2 have both expressed worries about their father knowing where they live and his anger and argumentativeness and potential for violence. They are also upset about their father refusing to come for visits. J.S. says that father is mean. None of them want to see him.
E. Father's Amended Answer
[32] Mother's fear of father was heightened by his amended answer to these proceedings in March, 2017, wherein he claimed custody.
F. Conclusion - The Best Interests of the Children
[33] Having chosen to ignore or baldly dispute the findings of Justice Jones, it is clear that father remains a risk of physical and emotional harm to the children. In a status review application, the court must then consider what disposition is in the best interests of the children.
[34] The paramount purpose is to promote the best interests, protection and well-being of children. Additional purposes include recognizing the autonomy of the family unit and providing help for them, exercising the least disruptive course of action that is available, providing services for children that respects their need for care, continuity and that are culturally and religiously sensitive and in the case of Indian or native children recognizes their culture, heritage, traditions and the concept of extended family.
[35] As Justice Zisman paraphrased in Children's Aid Society of Halton Region v. E.S.M., 2010 ONCJ 776, the following paragraph summarizes the best interest considerations from subsection 37(3) of the Act:
The statute lists a number of factors to be considered in determining the "best interests". These include the child's needs and the appropriate treatment to meet those needs; the child's level of development and cultural background; the importance of the child's development of preserving the relationship with her parents and being a secure family member; the importance of continuity of care and the possible effect of the disruption of that continuity; the relative merits of each plan; the child's views and the degree of risk that would justify the finding that the child was in need of protection.
[36] The totality of the above evidence points to an overwhelming conclusion that the children's best interests continue to be met by mother. In particular I would point to the following findings of fact:
Mother is cooperative with services that can assist her;
She is attentive to the children's needs and advocates for them;
She is constantly trying to improve her own parenting and places the interests of her children ahead of her own;
The children are happy with mother; they have a strong bond;
The children feel safe with mother; and
Mother has met her own struggles with mental illness and abuse with strength; she has built a support network that she can rely upon.
[37] In sharp contrast, father:
Has continued to be abusive and a source of stress for mother and the children;
Has refused to participate in any helpful resources;
Has been disrespectful of the children's fears and their views;
Blames everyone around him but takes no responsibility for his own actions;
Has been threatening to mother and the children; and
Has no insight into the impact all of this has on his children, which means that
The risk to the children remains even higher.
[38] Despite his bald denial, I find that he did place the investigative interview with his children on YouTube. Such a publication is prohibited by the Act because it offends the privacy of children and the confidentiality of these proceedings. I also find that he posted photos of the mother in a sexual advertisement as a means of harassing mother. Father is unable to control his behavior and is unable to respect the boundaries placed upon him by the norms of respectful relationships and court orders.
[39] It is a foregone conclusion that it is in the best interests of the children for mother to have sole custody with control of the children's access to father, their identifying documents and their travel outside the country. Father's continued hostility means that the children's best interests must be met by mother and her ability to meet their needs must be unfettered.
[40] The access proposed by the society and the counsel for the children is supervised access at a designated facility, funded by father, and subject to the children's views. This proposal is consistent with the children's best interests, based on the findings I have made above. There is no genuine issue requiring a trial on this issue.
G. Restraining Order
[41] Counsel for the father spent most of his argument opposing the restraining order. Counsel referred to this issue as the real issue in the case; the one issue that requires a trial. In particular, he submits the following:
Mother has alienated the children from father;
Mother has not provided any direct evidence on this Status Review Application; and
There has been no breach of the current temporary order.
[42] Subsection 57.1(3) of the Act permits the court to make an order pursuant to section 35 of the Children's Law Reform Act for an order restraining a person from molesting, annoying or harassing a party or a child. The paramount purpose of the Act is, as stated above, the best interests, protection, and well-being of children.
[43] As set out by Justice Zisman in Children's Aid Society of the Region of Halton v. C.I.C., 2009 O.J. No. 6410, the intent of section 35 is to protect someone from conduct that a reasonable person would find disturbing, a source of anxiety, or irritation to a substantial degree and that without a court order in place, the behaviour will not stop or may escalate. I must consider the behaviour of the father in this case and the evidence of harassment, and whether there is any other means of protecting the mother and children.
[44] I have reviewed the cases that deal with this issue and would summarize some of the key principles as follows:
Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.
A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person's ability to work. It may affect a person's immigration status. See: F.K. v. M.C., 2017 ONCJ 181.
It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring, 2004 ONCJ 195.
Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds for the person to fear for his or her own safety or for the safety of their child". See: McCall v. Res, 2013 ONCJ 254.
The person's fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154; McCall v. Res, supra.
A person's subjective fear can extend to both the person's physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).
It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.
A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.
A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears. See: Fuda v. Fuda, supra.
Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242.
In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra.
It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: D.C. v. M.T.C., supra.
A no-contact or communication order made pursuant to section 28 of the Children's Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C., supra.
A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Children's Law Reform Act. On a temporary motion the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court's risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.
In Catholic Children's Aid Society v. R.M., 2015 O.J. No. 4305 (SCO), Justice Chappell considered the long history of domestic violence, the history of failing to comply, current threats at the time of access visits, and the fact that the protection of the Society would no longer be a "safety buffer" in granting a restraining order in a matter under the same Act.
[45] There has been a lengthy history of harassment by father towards mother, the children, and resource professionals. That finding was made on June 1, 2016. Father disputes that finding. His continued denial and his behavior at the two visits indicates an increased risk to the children.
[46] Father's original answer to this status review application indicated his consent to mother's continued custody of the children. He then filed an amended Answer/Plan of Care on March 16, 2017 seeking custody. From June of 2016 until now, father has only had two visits with the children. By amending his answer, father placed custody and access in dispute. He had little or no evidence to support this Answer except denials of the earlier findings and the two visits. The visits are described above and provide no support for father whatsoever. On the contrary it clearly illustrates his continued hostility and lack of any impulse control.
[47] Counsel for father argues that mother should have provided an affidavit. In my view, mother does not need to provide an affidavit if she is content to rely upon the society documentation and she was.
[48] There is absolutely no evidence to support father's claim that the mother is alienating the children from father.
[49] It is abundantly clear that father, with absolutely no evidence to support his claims, is using this litigation to engage the mother again. It may be considered frivolous but it is also certainly harassment in this case.
[50] Based on my findings above, it is also abundantly clear that the mother's fears for herself and her children are both subjectively and objectively reasonable.
[51] The children's fears are also legitimate and should be accorded respect. The father left the children with these fears when he stopped visiting them. It was his choice. He has done nothing to alleviate those fears.
[52] The Society cannot be expected to continue to keep an open protection file in order to stand between the father and this family. The society has done all that can be done.
[53] Mother has done an absolutely amazing job of putting her children first. She has turned around a history of being a victim of abuse and has become a successful parent. She is to be commended for all of her hard work. She needs the protection of a restraining order to buttress her parenting against the probable future harassment of the father.
[54] Future harassment of the mother and the children by the father is probable in my view based upon:
The extensive history of domestic violence and intimidation and harassment;
No indicators of any change by father;
Continued denials by father;
Father's threatening manner in the only two visits with his children since the last order;
Father's change of his position in this litigation in March of 2017 to claim custody; and
Father's continued criticism of mother and his undermining of all of her genuine efforts.
[55] Mother is afraid of the father and the children are afraid of the father. Their fears are based on their lengthy experience with him. He has not shown to them or to the court any changes whatsoever. Based on no evidence of change by the father, it is a foregone conclusion that a restraining order will be ordered against him. Father should not be given a hearing or a trial of an issue in order to further harass the family.
H. Final Orders
[56] There is no genuine issue requiring a further hearing or a trial.
[57] A final order shall go as follows:
i. Ms L.S. shall have final sole custody of the children: K.A.S., born 2003, M.W.2, born 2005, and J.S., born 2010 pursuant to section 57.1 of the Child and Family Services Act. Police assistance to enforce this order may be required and is requested.
ii. Ms L.S. may travel with the children outside of Canada without the consent of any other party and specifically without the consent of Mr M.W.1.
iii. Ms L.S. may obtain government documents including but not limited to passports, passport renewals, health cards, SIN numbers, applications for name changes and birth certificates for the children without the consent of any other party and specifically Mr M.W.1.
iv. The children may have supervised access to their father M.W.1, born 1983 at a designated supervised access facility subject to the views of the children and funded by Mr M.W.1.
v. Mr M.W.1 shall be restrained under section 57.1(3) of the Act from having direct or indirect contact with Ms L.S., born 1984, M.W.2, K.A.S., and J.S. unless facilitated through a designated supervised access centre; such order to be enforced by police, if necessary.
Released: July 20, 2017
Signed: Justice Debra Paulseth
