COURT FILE NO.: FSA 18-836 DATE: 2020-03-26
WARNING
This is a case under the Child, Youth and Family Services Act, 2017, and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87 (8) Prohibition re 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.
(9) Prohibition re identifying person charged — 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
142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Children’s Aid Society of the Regional Municipality of Waterloo, Applicant
AND:
M.W., Respondent
M.S., Respondent
BEFORE: The Honourable Madam Justice L. Madsen
COUNSEL: Sarah Subhan; Jeffrey Boich, Counsel for the Applicant (Respondent in Appeal)
Respondent M.W., Self-Represented (Appellant)
Vanessa J. Frey for the Respondent, M.S. (Respondent in Appeal)
HEARD: September 4 and October 17, 2019; February 3, 2020
Judgment
On appeal from the decision of Madam Justice S. Neill, released December 4, 2018.
[1] The Respondent mother, M.W. [“the mother”] appeals the decision of the Honourable Madam Justice S. Neill, released December 4, 2018. That decision granted the motion of the Children’s Aid Society of the Regional Municipality of Waterloo [the “society” or the “CAS”] for summary judgment, placing the child, M.N.D., born […], 2012 [“the child”], in the custody of her father, M.S. [“the father”], with access to the mother in the father’s discretion.
[2] As at the writing of this decision, the now seven and a half year old child has been in her father’s care since June 22, 2016, almost four years.
[3] For the reasons that follow, the mother’s appeal is hereby dismissed.
Procedure
[4] This appeal was scheduled to be heard on September 4, 2019. The mother attended the hearing without counsel. She was initially unclear about whether she wished to retain, or was in the process of retaining, counsel for the appeal. The court indicated it was prepared to grant an adjournment for the mother to retain counsel. The mother insisted that she wished the matter to proceed that day. The court stood down the matter to give her an opportunity to reflect on that position, but she continued to insist that the matter proceed without further delay. The court proceeded to hear the appeal as scheduled.
[5] At the conclusion of the society’s responding argument, it became apparent that on July 26, 2019, the society had received by email from the mother a draft, undated, unsworn affidavit, without exhibits referenced in the text, addressing circumstances since the making of the order under appeal. The father’s counsel stated that her client had also been sent a copy of that draft, unsworn affidavit. For the first time, in her reply submissions, and after almost a full day of argument, the mother stated that she wished for the court to receive a copy of those materials.
[6] The court requested that the parties reattend on October 17, 2019. At that time the court set a timeline for the filing of properly sworn updating materials as follows: The mother’s materials to be served and filed by October 25, 2019; the father and society’s materials to be served and filed by November 8, 2019; and any supplementary facta on the issue of fresh evidence to be served and filed by November 15, 2019. The court stated that on recall of the matter, submissions would be requested regarding whether the court should receive the fresh evidence and what use, if any, should be made of that evidence if admitted.
[7] The mother filed no materials for the October 17, 2019 appearance. The father served and filed an updating affidavit, sworn November 7, 2019. The society did not at that time file further materials.
[8] The trial coordinator scheduled a continuation to take place on February 3, 2020. The mother was advised of the continuation by the court by telephone. In addition, society worker Ms. Piasecki left a voicemail message for the mother in which she advised of the February 3, 2020 court date.
[9] The mother did not attend on February 3, 2020. She was paged three times by the registrar. The society and the father were present and represented. The court was satisfied that the mother had notice of the continuation date. Given the long delay in this matter and the need for permanence for this child, the court proceeded to hear argument on the issue of fresh evidence.
[10] When the matter was recalled, the society brought its own motion for the admission of fresh evidence. The materials were served on both parents on January 31, 2020. The mother (whose whereabouts were unknown at that time as will be discussed below) was served by email and the court was advised that there was no bounce-back message. The father took no position on whether the court should admit the society’s proposed fresh evidence.
[11] Thus, on the recall of the matter, the court was in receipt of the father’s affidavit sworn November 7, 2019 regarding developments since the final order, and the society’s affidavit sworn January 31, 2020, also with updating evidence since the making of the final order. Whether that evidence should be admitted and to what effect is considered below.
Brief Background
[12] The child in this case was born […], 2012. She is now 7 ½ years old. She has autism and has limited verbal skills.
[13] The mother has two other young children who are not the subject of this matter, Aa.W. born […], 2010 and E.W., born […], 2019. The existence of E.W. only came to the attention of the Children’s Aid Society in January 2020. More will be said about this below.
[14] The society became involved with the mother as a parent in 2013. Concerns included the mother’s mental health, domestic violence, lack of supervision, and the state of the home.
[15] In September 2015, the society commenced a protection application seeking placement of the child with the mother under terms of supervision. A temporary order was made. The mother did not cooperate with temporary terms of supervision.
[16] On October 2, 2015, the child was apprehended from the mother’s care due to concerns regarding transience, fleeing, the mother’s mental health, neglect, and the child’s development.
[17] The child was placed with her father on an extended access visit on June 22, 2016, and then pursuant to a temporary order dated August 2, 2016. The child has been there ever since.
[18] The matter was in court on November 1, 2016. The mother had missed two prior court attendances and had been ordered to attend on that date, failing which her pleadings would be struck. The mother did not attend. Her pleadings were struck by the presiding judge and the mother was noted in default. The father and the society signed a statement of agreed facts that day, resolving the child protection application. The child was found to be in need of protection and was placed in her father’s care for six months under a supervision order.
[19] The mother states that she attended court later that day, but that the matter was not reopened.
[20] The mother did not take steps to appeal, set aside, or otherwise challenge the decision made on November 1, 2016.
[21] This status review application was commenced on March 10, 2017. The society sought an order that the child remain with her father, but under a custody order rather than a supervision order, with access to the mother in the father’s discretion.
[22] On April 3, 2018, the society brought the motion for summary judgment which is now under appeal.
[23] The mother brought a motion in advance of the motion for summary judgment seeking to have the matter set to trial, to strike certain portions of the materials filed by the society and the father, and to have her present husband, A.W., added as a party.
[24] On August 2, 2018, Justice Neill dismissed the mother’s motion to have the matter set to trial (as the summary judgment motion was still pending), dismissed the motion to have A.W. added as a party, but did strike some portions of the materials filed by the father and the society. None of the parties appealed that order.
[25] The motion for summary judgment was heard on October 29, 2018. At that time the child had been in the care of the father for two years and four months.
[26] On December 4, 2018, Justice Neill granted the society’s motion for summary judgment. The child was placed in the custody of the father with access to the mother in the father’s discretion. It is that decision which is under appeal.
[27] In February 2019, the mother brought a motion for access pending the outcome of the appeal. On consent, a temporary order was made whereby the mother would have one supervised visit, followed by access three times per week at times to be agreed upon. While not in the affidavit materials, the parties agreed during argument on September 4, 2019, that the access broke down in early May 2019. The court was advised orally that there had been no access since May 4, 2019.
Positions of the Parties
[28] The grounds of appeal set out in the mother’s factum include the following:
a. that the motions judge erred in fact and law in determining that the matter did not require a trial, failing to appreciate the controversial material before her;
b. that the motions judge erred in citing facts from the statement of agreed facts as if they were uncontested, failing to consider the fact that this document was not agreed to by the mother, who was not present, and ignoring the facts disputed by the mother;
c. that the motions judge misstated the affidavit evidence and supporting materials of the parents, and misapprehended the facts;
d. that the court failed to focus on best interests as required by section 74(3) of the CYFSA, and to appreciate that the application of the factors set out therein required a trial; and
e. that the father’s evidence regarding his plan of care was flawed and raised serious doubts as to his ability to be an effective parent.
[29] The society argued that the motions judge made no error in reaching the decision it did. More specifically, the society argued:
a. that absent an error of law, the decision to exercise powers under the new summary judgment rule attracts deference and that the motions judge made no error of law;
b. that issues covered by the statement of agreed facts signed by the father and the society on November 1, 2016 are res judicata, and that if the mother wished to challenge the order arising from that statement of agreed facts, she could have done so and did not;
c. that even though the Ontario Court of Appeal’s decision in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 2019 ONCA 5927, discussed below, was released after the decision of motions judge on the summary judgment matter, the judge properly applied the test for summary judgment as set out in Hryniak v. Mauldin, 2014 SCC 7, 2014 CarswellOnt 640 and the Ontario Court of Appeal in Kawartha; and,
d. that the motions judge reasonably concluded that the child continued to be in need of protection and that it was in her best interests for her father to be granted custody of her.
[30] The father supported the position of the society that the appeal be dismissed.
The Proposed Fresh Evidence
[31] Although the mother having delivered unsworn materials to the CAS and the father, in advance of the hearing of this appeal on September 4, 2019, led to my granting permission to all parties to file updating materials, the mother did not file updating affidavit materials with the court.
[32] The father’s updating affidavit, sworn November 7, 2019, sets out the following uncontested evidence:
a. that the parties agreed in March 2019, after the summary judgment decision, that the mother would have access to the child on Wednesdays and alternate weekends;
b. that the mother had five Wednesday access visits, and cancelled four; and that of the planned weekend access visits, the mother cancelled one and shortened four;
c. that on May 5, 2019 there was an incident at the mother’s home when the father’s partner and a friend were picking up the child, during which the mother pushed the father’s new partner and the mother’s partner had a physical altercation with the friend. The police were called. No charges were laid. The CAS investigated as the child was present and witnessed the incident;
d. the last access visit was May 31, 2019, when the child refused to go to the mother’s home for access; and
e. the father states that he asks the child approximately weekly if she would like to see her mother and she always says no. The father says that although the child is not very verbal, she states that she is afraid of her mother. The father states that he believes his daughter is “triggered” when he hears the mother’s name.
[33] Part of the father’s affidavit relies on hearsay, as it does not appear that he was personally present during the incident on May 5, 2019. As the mother chose not to file an affidavit, although given the opportunity to do so, it is unknown what her perspective is on the access exchange on that day.
[34] However, the father’s materials confirm that the mother had some access after the final order, but that it was inconsistent. His materials also confirm that access ceased in May 2019.
[35] The affidavit of the CAS worker, Ms. Piasecki, sworn January 31, 2020, sets out the following facts since the making of the final order by Justice Neill, including the following:
a. that the mother’s second child, Aa.W. (who is the subject of a separate application) was apprehended at birth from the society and returned to the parents’ care on May 14, 2019 under a four-month supervision order. The worker states that the mother tried to hide this second pregnancy from the society;
b. that since the return of the child to the parents’ care, the mother and her partner frequently refused society workers access to the home;
c. that society workers suspected that the mother was pregnant with a third child after the return of the second child, but that the mother denied this;
d. that the last home visit with the parents occurred November 26, 2019, but the mother did not participate;
e. that on January 6, 2020, the society received a call from St. Jacob’s midwives reporting concerns in relation to the family, but also disclosing that a child, E.W., was born in […] 2019. The society had not been previously aware of that child’s existence;
f. that workers made attempts to connect with the family after learning of the third child’s existence, but without success;
g. that on January 17, 2020, the society obtained a warrant for the purpose of a medical examination for the child, E.W. Several unsuccessful attempts were made to execute the warrant. Workers attended the residence on January 18 and 19, 2020, but there was no answer at the door on either occasion;
h. that on January 21, 2020, society worker Magda Piasecki was informed by a Caledon OPP officer that on January 20, 2020, the parents’ vehicle had been observed by the side of the road, with frosted windows, and it appeared that the parents were living out of the vehicle. One child was confirmed to be in the car and another suspected to be in the car. When police attempted to speak with the parents the mother told the father to leave the scene. The family fled in the vehicle at a speed of 120 km per hour. OPP followed but then disengaged due to safety concerns. The worker was advised that there are charges against A.W. arising from this incident;
i. that Ms. Piasecki attended the mother’s home several further times in an effort to locate the parents. They were not located;
j. that the worker left voicemails for the parents on both the mother and father’s phone numbers expressing concern for the wellbeing of the family;
k. that the parents did not attend the settlement conference scheduled to take place on January 30, 2020. The society brought a motion returnable at the settlement conference seeking an order bringing Aa.W., and the baby E.W., into care. The parents emailed the worker during the court appearance acknowledging the worker’s efforts to contact them; and
l. that Justice Breithaupt Smith heard the motion to bring the children into care and made that order on a temporary without prejudice basis.
[36] Some of the evidence in Ms. Piasecki’s affidavit is hearsay or double hearsay. However, even the direct evidence of Ms. Piasecki raises significant concerns about the mother’s current circumstances. Justice Breithaupt Smith was sufficiently concerned to order that Aa.W. and E.W. be brought into care on a temporary without prejudice basis.
[37] As at the court appearance on February 3, 2020, the whereabouts of the parents and the children Aa.W. and E.W., the siblings of the subject child, was unknown.
[38] Section 121(6) of the CYFSA provides that a court may receive further evidence relating to events after an appealed decision.
[39] The Ontario Court of Appeal has ruled that fresh evidence should be admitted in a child protection proceeding if:
a. it could not have been adduced before;
b. it is highly relevant in that it provides the court with an accurate picture of the situation at hand;
c. is potentially decisive to the child’s best interests;
d. is credible;
e. is uncontroverted; and
f. if it updates evidence submitted during the time of the prior hearings and the appeal.
See L.M. v. Peel Children’s Aid Society, 2019 ONCA 841 at para. 84. See also R. v. Palmer, 1979 SCC 8, [1980] 1 S.C.R. 759 at page 775; C.A.S. of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at para. 35, 36.
[40] The Ontario Court of Appeal held that a flexible approach should be taken given the need for up-to-date information concerning the child’s best interests. L.M. v. Peel C.A.S., above at para. 84. It is important to have the most current and accurate information when determining a child’s best interests. C.C.A.S. of Metropolitan Toronto v. M.(C.), 1994 SCC 83, [1994] 2 S.C.R. 165 at p. 188; C.A.S. of the Regional Municipality of Waterloo v. C.T., above at para. 36.
[41] Fresh evidence may be of marginal value once an appeal court has found no error. C.A.S. of the Regional Municipality of Waterloo v. C.T., above at para. 37.
[42] Although in this case, as seen below, I find no error in determination of the motions judge, I nevertheless find it appropriate that the fresh evidence tendered be admitted. The proposed evidence could not have been adduced before, is uncontroverted, is relevant in the child’s best interests, and provides important updates to the prior evidence submitted.
[43] While I have concerns about the hearsay nature of some of the proposed evidence, applying a flexible approach and bearing in mind the best interests of the child, it is preferable to admit that evidence, while remaining cognizant of its limitations. The direct evidence of the father, and of Ms. Piasecki in particular, even without recourse to the hearsay evidence, raises very serious concerns.
[44] The mother was explicitly given an opportunity to update her evidence and chose not to.
Law and Analysis
[45] The following are the issues on this appeal:
a. The standard of review on appeal of a motion for summary judgment.
b. Whether the motions judge erred:
i. with respect to her treatment of the statement of agreed facts dated November 1, 2016 resolving the initial protection application;
ii. whether the judge made palpable or overriding errors in her findings of fact on the materials before her on the summary judgment motion;
iii. whether the motions judge erred in her statement of the law with respect to status review applications or its application to the facts of this case; and
iv. whether the motions judge erred in her statement of the law of summary judgment or its application to the facts of this case.
Legal Principles
Standard of Review
[46] The standard of review on issues of law is “correctness.” Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at para. 8.
[47] The standard of review with respect to questions of fact is that such findings are not to be reversed unless it can be shown that the trial judge made a “palpable and overriding error.” Housen at para. 10.
[48] On questions of mixed fact and law, the standard of review is “palpable and overriding error” unless there is an extricable legal issue. Housen, at para. 36.
[49] Absent an error of law, the decision to exercise powers under the new summary judgment rules attracts deference. Where a motions judge exercises fact-finding powers and determines whether there is an issue for trial, this is a question of mixed fact and law. Hryniak v. Mauldin, 2014 SCC 7 at paragraph 81.
[50] Unless the motions judge misdirected herself or came to a decision that is so clearly wrong as to result in an injustice, her decision should not be disturbed. Hryniak at para. 83.
[51] On a status review, the task of the court is to assess what, if anything, has changed since the making of the prior final order. A status review hearing is not a re-hearing of the original protection application. C.C.A.S. of Toronto v. M.(C.), 1994 SCC 83, 1994 CarswellOnt 376 (S.C.C.), [1994] S.C.J. No. 37 at paragraphs 35 – 37. Issues related to the original hearing are res judicata.
[52] A consent order that ends an action is of the same effect as a judgment of a court following a trial or hearing, for the purpose of the doctrine of res judicata. C.A.S. of London and Middlesex v. B.(C.C.) at para. 48.
[53] Prior court orders, reasons for decision, and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders. Attorney General of B.C. v. Malik, 2011 SCC 18 at para. 38; Children’s Aid Society of Toronto v. I.H., 2017 ONCJ 760 at para. 35 - 58. Statements of agreed facts are admissions, which are an exception to the hearsay rule.
[54] The mother argues that, on the motion for summary judgment, the court should not have relied upon the statement of agreed facts dated November 1, 2016 because the order was made in her absence and the statement was not signed by her. In her factum, she says that she attended court later that day but was told by society counsel that it was too late.
[55] The mother’s affidavit materials are not consistent on this issue. In one paragraph of an affidavit she states that she attended court at 11:00 a.m. on November 1, 2016; in another, she states that she attended at 2:00 p.m. that day. She also states elsewhere that she moved her residence that day.
[56] The mother had been personally ordered to attend court on November 1, 2016, having missed two prior court appearances, failing which her pleadings would be struck. When she did not attend, her pleadings were struck, and she was noted in default.
[57] Were the mother not in agreement with the final order made on November 1, 2016, finding the child in need of protection and placing the child in her father’s care for six-months under supervisions, she should have taken steps at that time. The mother did not bring a motion to set the order aside nor did she appeal it. The statement of agreed facts was signed by the society and the father. The motions judge made no error in relying on the facts set out in the statement of agreed facts in her decision on the motion for summary judgment.
Findings of Fact Made by the Motions Judge
[58] The mother alleges that the motions judge misstated the affidavit evidence and supporting materials of the parents and misapprehended the facts.
[59] As seen, on questions of fact, the standard of review is “palpable and overriding error.”
[60] The motions judge had the following evidence before her:
a. Statement of agreed facts dated November 1, 2016;
b. Affidavits of society worker, Eileen Radford, sworn March 10, 2017, April 3, May 7, June 19, September 13, and October 19, 2018;
c. Affidavit of society worker, Rachel Clark, sworn June 19, 2018;
d. Affidavit of society worker, Karen Walker, sworn September 12, 2018;
e. Affidavit of society worker, Cornelia Purza, sworn September 12, 2018;
f. Affidavit of society supervisor, Taneika Samuda, sworn September 13, 2018;
g. Document brief, including police reports, letters to the mother, a letter from the mother’s physician; reports from the mother’s counsellor; reports from service providers with respect to the child, and records from A.W.’s Caring Dad’s program;
h. Affidavits of the father sworn April 18 and September 20, 2018;
i. Affidavit of the father’s partner, S.R., sworn September 18, 2018;
j. Affidavits of the mother sworn May 10, 2017, April 30, 2018, May 16, and October 14, 2018; and
k. Affidavits of the mother’s husband, A.W., sworn April 29 and May 16, 2018.
[61] The motions judge was alive to the principle that only trial-worthy evidence should be admitted on a motion for summary judgment. See Kawartha, at para. 78, in which Benotto J. cited Sherr J. as follows:
My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence.
[62] On July 16, 2018, after the motion for summary judgment had been scheduled and materials exchanged, the mother brought a motion to strike certain portions of the society’s and the father’s materials. In a detailed decision released August 2, 2018, the motions judge set out the law respecting the quality of evidence required on a motion for summary judgment and reviewed the proposed evidence for its admissibility. She struck certain portions of the affidavit evidence of both the society and the father. The society was given time to serve and file further material and directed to file additional material from service providers. The mother responded to that material. The decision of August 2, 2016 was not appealed by any party.
[63] On a review of all of the affidavit material before the motions judge, I cannot find that she made palpable and overriding errors in her recitation of the facts, all of which were available to her on the evidence. In summary, she found as follows:
a. There was a child protection history with the mother as an adult from 2013, with the concerns related to the mother’s mental health, domestic violence, lack of supervision, and the state of the home.
b. In September 2015, the society commenced a protection application seeking placement with the mother under terms of supervision.
c. The mother did not cooperate with the society including at times not allowing the worker to access her home; the mother did not inform the society of moves outside the jurisdiction.
d. On October 2, 2015, the child was apprehended from the mother’s care due to concerns of transience, fleeing, mental health, neglect, and the child’s development.
e. After the final order on November 1, 2016, and the motion for summary judgment, the only child protection issue that the mother resolved was residential instability.
f. There continued to be a pattern of domestic violence involving the mother. In August 2017 the mother’s partner (now husband) A.W. reported to the police that the mother punched him in the face.
g. There was another serious incident on January 9, 2018, during which A.W. was intoxicated, yelled and punched walls, and told the mother he would kill her. During this incident, A.W. punched his brother-in-law in the face and slashed his tires, rammed his car into a police car, assaulted a police officer, and tried to take the officer’s firearm. At that time the mother told the police that A.W. was a functioning alcoholic.
h. Both the mother and A.W attended services including counselling and parenting programs but attended limited programing to address the serious issue of domestic violence. A.W.’s claimed counselling for substance abuse issues could not be verified.
i. The mother’s access to the child was inconsistent. There were also lengthy gaps in access, including from November 10, 2016 to February 2, 2017, and from December 8, 2017 to March 28, 2018. The mother and A.W. behaved poorly towards society workers when access did take place and had to be cautioned that if the behavior continued, one-on-one supervision might be required. When the society attempted to move access back to the mother’s home, the mother did not abide by society direction and the visits were returned to the society offices.
j. The mother left a message for a society visiting centre on November 10, 2016 threatening to sue or kill their families if her visit did not proceed that day.
k. The mother was not cooperative with the society, was not truthful about police attendances at her home, and was out of contact with the society for lengthy periods of time.
l. The child had resided with the father from June 22, 2016. The father had been cooperative with the society. He admitted historical concerns regarding alcohol use, but workers saw no present evidence of alcohol misuse. The father was living with his partner and there was no evidence of domestic violence.
m. The father was employed, and his partner was attending school. The father had been able to meet the child’s special needs and was presenting a solid plan for the child’s care. The child had received appropriate care since placed with the father, which at the time of the motion for summary judgment, was two and a half years’ previously.
[64] Even on the evidence of the mother, and of A.W., alcoholism and domestic violence were a serious concern. While in one affidavit, the mother stated she was not present during the August 2017 incident, in another affidavit she acknowledged that she and A.W. had an argument that day, the police met with both of them, and the father told the police “I guess she punched me in the face.”
[65] Regarding the January 9, 2018 incident, neither the mother nor A.W. went into detail in their affidavits about what they say happened. However, the mother stated that she understood that the court would need to be cautious and that she and A.W. would need to “prove themselves over time as appropriate parents for M.D.” She also acknowledged that she and A.W. dealt with disagreements in inappropriate ways. A.W. stated in an affidavit that “I cannot begin to describe my shame and embarrassment over what happened as a result of my drinking on January 8, 2018. I was arrested on January 9, 2018 and charged with 18 criminal offences.” The mother’s evidence about how those charges were resolved was contradictory, as her material stated both that the charges had not been resolved, but also that they had been withdrawn.
[66] The court accepted the mother’s evidence that she and A.W. had attended programming. However, the motions judge found that the programming was not directed at addressing the serious issue of domestic violence.
[67] With respect to the message for society staff that the mother would kill the society workers’ families if she did not have access on November 10, 2016, the mother acknowledged in her materials having left an “inappropriate” message that day.
[68] While the mother expressed concerns about the father’s care of the child, her evidence was sweeping and non-specific. For example, she stated “I believe that [the child] is not well taken care of…”, and “I am firmly of the view that he is not a parent who should be the primary caregiver for [the child].” She similarly stated, “I can advise that the observations of others confirm that he is inappropriate as a parent and unhygienic.” She also stated that she was “certain S.R. (the father’s partner) is an inappropriate caregiver.”
[69] On a careful review of the evidence before the motions judge, I do not find that she misstated the evidence or misapprehended the facts. She was entitled to make the findings that she did.
Principles to be Applied on a Status Review Application
[70] The matter under appeal is the summary judgment determination of a status review application. Protection findings were previously made under the Child and Family Services Act.
[71] This status review was first returnable on March 10, 2017. New legislation, the Child, Youth, and Family Services Act came into force on April 30, 2018. Pursuant to section 11(1) of Ontario Regulation 157/18, a proceeding commenced under Part III of the CFSA, but not concluded prior to the entry into force of the Child Youth and Family Services Act, shall continue under Part V of the CYFSA.
[72] The court’s decision on a status review application must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, which takes precedence over all other considerations.
[73] Section 114 of the CYFSA provides that where an application is made for review of a child’s status under section 113, the court may, in the child’s best interests:
a. vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;
b. order that the original order terminate on a specified future date;
c. make a further order or orders under section 101; or
d. make an order under section 102.
[74] The test on a status review application is as follows:
a. the original order is presumed to be correct. This is not a rehearing of the previous order that was made;
b. the court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a court order for his or her protection;
c. the court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and
d. secondly, the court must consider the best interests of the child. This analysis must be conducted from the child’s perspective.
See Children’s Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371 at para. 43; Catholic Children’s Aid Society of Hamilton v. S. (B.L.), 2014 ONSC 5513 at para. 83; and Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 SCC 83, [1994] 2 S.C.R. 165.
[75] In determining a child’s best interests, the court must assess, from the child’s perspective, the degree to which the risks and concerns that existed at the time the society commenced its application continue to exist. See Children’s Aid Society of Toronto v. M.(C.), above, at para. 36.
[76] Section 74(3) of the CYFSA further provides that best interests are to be determined based on the following factors:
74(3) Best interests of the child
Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
a. consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
b. in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
c. consider any other circumstance of the case that the person considers relevant, including,
i. the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
ii. the child’s physical, mental and emotional level of development,
iii. the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
iv. the child’s cultural and linguistic heritage,
v. the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
vi. the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
vii. the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
viii. the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
ix. the effects on the child of delay in the disposition of the case,
x. the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
xi. the degree of risk, if any, that justified the finding that the child is in need of protection.
Summary Judgment
[77] Rule 16 of the Family Law Rules, O. Reg. 114/99, as amended, permits a matter to be resolved by way of a motion for summary judgment. The rule is explicitly available in child protection matters.
[78] The court must follow a two-step process on a motion for summary judgment.
a. First, the court must determine on the record whether there is a genuine issue that requires a trial. If there is no genuine issue for trial, summary judgment must be granted.
b. Second, if there appears to be a genuine issue for trial, the court must determine whether a trial can be avoided by using powers available under Rule 16(6.1) and (6.2), to weigh evidence, draw reasonable inferences, and call oral evidence. These powers are available unless it is in the interests of justice to exercise them only at a hearing. 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. Hryniak at paragraphs 49, 66 – 68.
[79] Rule 16 must be applied cautiously. The adjudication process must be fair and just. These are values that cannot be compromised. Hryniak at para. 23; Kawartha, at paras. 74 and 75.
[80] The standard for fairness is not whether the procedure is as exhaustive as a trial but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. Hryniak, at para. 50, as cited in Kawartha, at para. 63.
[81] As stated by Justice Benotto in Kawartha at paragraphs 74 and 76,
The current correct approach to summary judgment in child protection was and remains highly cautionary.
As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings.
[82] In Kawartha, the Ontario Court of Appeal confirmed that “no genuine issue for trial” means a situation where it is “plain and obvious that the action cannot succeed”, where the “outcome is a foregone conclusion”, or where there is “no realistic possibility of an outcome other than that sought by the applicant.” Kawartha, at para. 72.
[83] There will be no genuine issue for trial when the written record:
a. allows the judge to make the necessary findings of fact;
b. allows the judge to apply the law to the facts; and
c. is a proportionate, more expeditious and less expensive means to achieve a just result.
Windsor-Essex Children’s Aid Society v. K.M., 2015 ONCJ 553 at para. 35, per Tobin J., citing Trotter v. Trotter (2014), 122 O.R. (3d) 625, 2014 ONCA 841 at para. 72.
[84] On a status review application in the context of a summary judgment motion, where little has changed since the previous order, and where the conditions of likelihood of harm to the children were present, there is no genuine issue for trial. C.A.S. of Toronto v. A.(P.), 2003 O.J. No. 1432, 2003 CarswellOnt 1249.
[85] In a child protection case, a genuine issue for trial must arise from something more than a parent’s heartfelt expression of desire to resume care of the child. There must be an arguable point discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and that she has developed her ability to parent. Children’s Aid Society of Peel v. R.(A.), [2013] O.J. No. 2969, 2013 CarswellOnt 8677, at para. 72; C.A.S. of the Regional Municipality of Waterloo v. A.M., 2015 ONSC 2496 at para. 36.
[86] Good intentions are not enough. The test is not “whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child’s life with the result that, in giving the parents another chance, the child would have one less chance.” C.A.S. of Toronto v. C.G., 2012 ONCJ 423 at para. 103. As stated by Pazaratz J. in C.A.S. of Hamilton v. A.M. and T.L., 2012 ONSC 6828, “It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation, no matter how sincere their intentions…” See para 40.
[87] Additional considerations include the nature of the evidence on the motion the mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved, and how material are the facts in issue to the case. The analysis must be undertaken within the framework of the paramount purposes of the Act, namely, to promote the best interests, protection, and well-being of children. C.A.S. of the Regional Municipality of Waterloo v. A.M., above at para. 36; Children’s Aid Society of Algoma v. K.(A.), 2015 ONSC 6166 at para. 35.
[88] The burden of proof is on the party moving for summary judgment. Even if the respondent’s evidence does not raise a genuine issue for trial, the court must be satisfied that the moving party has established that there is no genuine issue requiring a trial. Kawartha, at paragraph 80.
[89] The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. See para. 61 above.
[90] At the same time, the Supreme Court of Canada has held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. Hryniak v. Mauldin at para. 5.
[91] In Kawartha, Justice Benotto summarized the proper approach to summary judgment in child protection proceedings as follows, at para. 80:
Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
Application
[92] The decision of the motions judge was rendered after the Divisional Court decision in Kawartha-Haliburton C.A.S. v. M.W., [2018] O.J. No. 2399, 2018 ONSC 2783 and before that decision was overturned: 2019 ONCA 316. The motion judge cited certain portions of the Divisional Court decision which were not upheld by the Court of Appeal.
[93] Specifically, the motions judge stated that in determining whether there is a genuine issue for trial, the court need no longer consider whether it is “plain and obvious that the applicant would not be successful” or whether there is “no possibility of an outcome other than that sought by the applicant,” language arising from caselaw predating the seminal Supreme Court of Canada decision on summary judgment, Hryniak v. Mauldin, 2014 SCC 7. In addition, the motions judge stated that the respondent must provide specific facts showing that there is a genuine issue for trial.
[94] Subsequent to the summary judgment decision in this case, the Ontario Court of Appeal held in Kawartha-Haliburton that the pre-2014 caselaw still applies to understanding what constitutes a genuine issue for trial, and that even if the respondent’s evidence does not establish a genuine issue for trial, the court must be satisfied that the moving party has established that there is no genuine issue requiring a trial.
[95] Notwithstanding the statements referred to above, the motions judge correctly stated that the burden of proof is on the party moving for summary judgment, and that the court must take a hard look at the merits of a case to determine if there is a genuine issue for trial. She correctly placed her analysis in the context of the Supreme Court of Canada decision in Hryniak, which requires that court consider, ultimately, whether the summary judgment process allows the court to fairly and justly adjudicate the dispute and if it is a timely, affordable, and proportionate procedure. Further, the motions judge correctly required that the evidence considered be trial-worthy.
[96] Importantly, in her application of the law on summary judgment, the motions judge found that the society and the father presented a trial-worthy standard of evidence and that the society, on its evidence, made out a prima facie case for summary judgment. She set out in detail the basis on which the society had shown that there was no genuine issue for trial. This included: the pattern of conflict and domestic dispute between the mother and her partner; the mother’s failure to cooperate with the society; the mother’s inconsistent attendance at access visits and substantial gaps in access; the limited quantity of unsupervised access exercised by the mother; and the failure to address issues regarding domestic violence, in counselling, notwithstanding taking a number of courses and programs. The motions judge did not reverse the onus, which at all times remained on the society.
[97] The motions judge correctly set out the law to be applied on a status review application and correctly applied that law. She started from the proposition that the order made November 1, 2016 was correct. She found that the child continued to be in need of protection on the basis that the only protection concern which had been addressed since the making of that order was that the mother now had a stable residence. The balance of the protection concerns were continuing as at the hearing of the motion, and on that basis the judge found that the child continue to be in need of protection. The court found no genuine issue for trial on the question of continuing need of protection.
[98] The motions judge then considered, as she was required to do, the disposition that would be in the child’s best interests, conducting that enquiry from the perspective of the child. The court found that despite completing some programming, the mother and her partner continued to minimize the protection concerns, including domestic violence in their relationship. She found on the evidence that the mother had not resolved the protection concerns such that the child could be returned to her care, or even move to unsupervised access.
[99] The motions judge considered that the child had been in the care of the father for two and a half years as at the hearing of the motion and accepted the society’s evidence that it had no concerns about the father’s care of the child. She accepted that the child was doing well in her father’s care and she accepted the father’s evidence regarding his plan for the child. She correctly held that where a child has been in a family placement for a substantial period of time and the caregiver is meeting the child’s needs, the court must consider whether it is in the child’s best interests to change a longstanding status quo to return the child to the parent from whom she was apprehended.
[100] On the evidence in this case, the motions judge found that the child’s best interests would best be served by remaining in the care of her father. She noted the concern to achieve permanence for children and that as at the hearing of the motion the child had been out of her mother’s care for over three years. In the result, the court found no genuine issue for trial with respect to the question of disposition.
[101] On the question of access, the court found that it was in the child’s best interests to have contact with her mother and that an order under which the father would have discretion over such access would be in the child’s best interests. She noted that the father had facilitated contact, which had, for the most part, been supervised by the society. The court accepted that the father, having discretion about quantity and supervision of access, would be the best arrangement in the circumstances.
[102] While the motions judge did not specifically review each factor regarding best interests as set out in section 74(3) of the CYFSA, I find that she addressed those factors which applied in this case. Those included: the child’s needs and level of development; the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family; the child’s relationships and emotional ties to parents and siblings; the importance of continuity of the child’s care; the effects on the child of delay; and the risk that the child would suffer harm if removed from the care of her father.
The Relevance of the Fresh Evidence to This Appeal
[103] As seen above, I admitted the proposed fresh evidence in this matter, while remaining cognizant of the limitations of some of that evidence.
[104] Without giving weight to the hearsay evidence, the direct fresh evidence:
a. confirms the conclusion of the motions judge that the father would facilitate access to the mother;
b. confirms her concern regarding the mother’s inconsistency in access attendance;
c. confirms that the mother continues to be uncooperative with the society;
d. establishes that the mother withheld the birth of a third child from the society, a fact directly relevant to the likelihood of her cooperation with the society going forward;
e. establishes that the mother has not complied with an order that the two younger children be brought into care; and
f. establishes that, as of January 31, 2020, the whereabouts of the mother, her partner A.W., and the subject child’s two siblings was unknown.
[105] In this case, I would have dismissed the appeal from the decision on the motion for summary judgment in any event, without considering the fresh evidence. On a review of the evidence before the motions judge, I find that she was able to make the factual findings that she did on the evidence before her; that she did not misstate or misapprehend that evidence; that she did not err in her consideration of the statement of agreed facts dated November 1, 2016; that she applied the law of summary judgment in a manner that respected the principles set out in Hryniak v. Mauldin, as well as the Ontario Court of Appeal’s decision in Kawartha-Halliburton (notwithstanding certain references to the Divisional Court decision in Kawartha-Haliburton, 2018 ONSC 2783); that she considered father’s plan for the child; and that she applied the law regarding status review applications correctly. The fresh evidence is not necessary to reach these conclusions.
[106] However, the fresh evidence in this case serves to give the court a full picture of the situation at hand and is deeply concerning. That evidence serves to confirm the appropriateness of the decision made by the motions judge and her determination that this child’s best interest is to be in the custody of the father, with access to her mother in the father’s discretion.
Order
[107] In conclusion, there shall be an order to go as follows:
This appeal is dismissed.
The temporary order of Justice Broad made February 13, 2019 providing for temporary access to the mother is hereby vacated.
MADSEN J.
Date: March 26, 2020
