WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (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

Location: Sault Ste. Marie

Court File No.: 101/2011-01

Date: 2012-05-01

Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Parties

Between:

Children's Aid Society of Algoma

Ms. J. Mealey, for the applicant society

— And —

N.C. (Mother)

Ms. K. Whitfield, for the mother

N.C. (Child)

M.D. (Father)

Ms. L. Tegosh, for the father

Hearing Information

Heard: May 1, 2012

Before: Justice John Kukurin

Decision

[1] Introduction

This is a decision on a motion for summary judgment (at tab 9, volume 2) brought by the applicant society. It seeks an order for crown wardship of the child S., age two years, with no access to either parent. It plans to find an adoptive home for the child.

[2] Background and Procedural History

By way of background, this motion is made in a status review case in which the society's claim is precisely the same as what it is seeking by way of summary judgment. In a prior child protection proceeding, a finding was made that S. was a child in need of protection. The order in that prior case made S. a temporary ward of the society for six months. As required by the Child and Family Services Act (CFSA), the statute that governs child protection cases in this province, the society has brought the present status review application to review S.'s status as a society ward. Both the mother and the father have filed Answers in response to the society's application. They oppose the society's claim and the case is contested. The father seeks long term placement of the child with his mother, the child's paternal grandmother, D. The mother seeks return of the child to herself. Alternatively, she also seeks placement of S. in the sole custody of the paternal grandmother, or in her care and custody subject to a society supervision order. The mother opposes the claim for an order of no parental access.

[3] Summary Judgment Procedure

The normal path of cases in this court that remain contested leads to a trial or hearing at which viva voce evidence is generally adduced. The motion for summary judgment is a procedure that bypasses the trial process in cases where the court is satisfied that there is no genuine issue in the case that requires a trial. The onus in such motions is on the motion applicant to satisfy the court, on the balance of probabilities, not only of the merits of its application, but also that there is no reason for a trial to be held because the evidence raises no issue that needs a trial for resolution.

[4] Respondent's Obligations on Summary Judgment

In practical terms, in a case such as this, the applicant society introduces, in affidavit form, virtually all of the evidence that it would otherwise have led at trial. This means that the respondent's evidence has to be equally comprehensive and address the factual allegations in such a way that will persuade the court that one or more genuine issues do, in fact, exist that require a trial to resolve. The respondent who is faced with a summary judgment motion cannot sit back as can a criminal accused saying, "I don't have to tell you what my case is. You'll see what it is at trial." Jurists have expressed the respondent's obligation in many ways. The respondent cannot rely on mere allegations or denials. The respondent must put his or her best foot forward. The unsuccessful respondent on a motion for summary does not get a second chance later. There is no later.

[5] Summary Judgment as a Shortcut

Summary judgment shortcuts the normal trial process. It forces the summary judgment motion respondent to respond with specific facts to the specific facts alleged by the motion applicant. Failure to do so in a way that demonstrates that there are genuine issues could result in a final order for the claim(s) sought being made on the motion.

[6] Respondent Father's Failure to Respond

In this case, the Respondent father has filed absolutely no evidence in response to the summary judgment motion. In this proceeding, he has filed only an Answer, filed over a year ago. He has provided no sworn evidence to oppose the factual allegations contained in the very comprehensive evidence filed by the society.

[7] Respondent Mother's Inadequate Response

The mother has done only marginally better than the father in terms of her response to the society's summary judgment motion. She has filed a three paragraph affidavit that says only that she opposes the society's motion, that she has been "unable to respond" to the society's motion and to attend at her Lawyer's office "to prepare affidavit material in time for the hearing", and that, if crown wardship is ordered by summary judgment, she asks the court to consider continued maternal access, and asks that periodic photographs and updates of her child's progress be provided to her. She has not responded at all to the comprehensive factual allegations contained in the society's affidavit filed on this motion.

[8] Notice and Timing

The motion for summary judgment was served at the end of February, 2012. The parties attended before the trial co-ordinator on March 5, 2012 to obtain a suitable date for hearing of this motion. All parties agreed to the date of May 1, 2012. The major part of the society's evidence was served on the parents at the end of March 2012. The mother had two full months notice of the motion, and one full month's notice of its supporting evidence. In reviewing the society's evidence, there is very little that is new in the sense that the society had not provided to the parents in prior affidavits. The mother knew what the society's case was about. The notice time was more than ample. It was well within the timelines specified in the Family Law Rules relating to motions.[1]

[9] No Trial Necessary on Disposition

My conclusion is that a trial is not necessary to deal with the aspect of disposition in this case. The reasons are manifold but essentially came down to the conclusion that a trial will not produce any more evidence with respect to any material issue in this case than is already available to the court now. Phrased in another way, there is no issue that cannot be decided on the present evidence before the court that is genuine and germane to the matter of disposition.

[10] Statutory Framework and Alternatives

The Child and Family Services Act (CFSA) governs child protection cases. It contains a limitation on how long children can remain in the care of a Children's Aid Society. In S.'s case, that is one year. The only alternative at this point are Crown wardship, or placing the child with the mother, or some other caregiver subject to a supervision order.

[11] Assessment of Paternal Grandmother

The court is statutorily obligated to consider placement with caregivers other than the parents. In this case, the main alternative proposed caregiver was the paternal grandmother. In fact, the society completed a "kin" assessment of this grandmother and her partner, a copy of which is attached as an exhibit to a society affidavit. The end result is that the paternal grandmother was not approved for placement. While this conclusion of the society does not necessarily restrict the court in who it decides to place the child with, in this case, I agree with the conclusion of the society. It would not be in the best interests of the child to be placed with the paternal grandmother. As an evidentiary observation, there has been no response to any of the information contained in the kin assessment report.

[12] Assessment of Other Kin

There were other "kin" proffered for placement consideration. The paternal great aunt and uncle were assessed. This placement was also not approved. The paternal aunt and her partner were also put forward, but they subsequently declined to participate and withdrew.

[13] Onus on Motion Applicant

Simply because the parents do not answer the society's allegations does not mean that there is automatically no genuine issue in the case that requires a trial. The court is required to come to this conclusion based on the evidence that it does have. The onus remains on the motion applicant to satisfy the court that no genuine issue in the case exists that requires a trial.

[14] Limited Options for Disposition

The main determination in a status review case is what is to happen to the child who is the subject of the case. The court can make no further temporary wardship orders that keep S. in care of the society. The proposed kin are not suitable candidates. This leaves only the mother and the father.

[15] Father's Lack of Plan

The father is not asking for placement in his care and custody. In any event, he has presented no plan that the court can even consider.

[16] Mother's Position

The mother seems resigned to the loss of this child to crown wardship. She likely realizes that there is very little that she can offer by way of evidence to counteract the significant protection concerns that are raised in the evidence of the society.

[17] Failure to Comply with Plan of Care

When a temporary wardship order is made, the society is obligated to file a Plan of Care in which it must set out the services it will provide to the family and the expectations it has of the parents during the term of the wardship. In this case, these expectations were set out in detail in paragraph 5 (a) to (k) of the society's Plan of Care. It would be fair to say that the parents failed to accomplish almost all of the things expected of them. According to the society's evidence, which is not disputed, the parents separated and reconciled numerous times. Their relationship was dysfunctional, punctuated by frequent arguments and fights. Despite this, the mother again became pregnant, appears to have been very casual about her pre-natal care and delivered prematurely. The infant did not survive. The parents moved to another community, not once but twice, during the term of the wardship order. While away, they did not exercise access to S. In fact, their overall record of access visits was dismal. They were difficult for the society to contact or to work with. They were avoidant and evasive and preoccupied with their own problematic relationship. Overlaid on these domestic problems are mental health issues which the parents have not addressed. In short, the protection concerns that existed when the wardship order was made do not only still exist but some have been exacerbated.

[18] Foregone Conclusion

This case is one where the outcome is a foregone conclusion. There will be an order of crown wardship for the child S.

[19] Parental Access

The onus is on the parents of a child who is made a crown ward to satisfy the court that parental access will be both meaningful and beneficial and will not impair the child's future opportunities for adoption. The parents have provided no evidence to satisfy this onus. On the basis of the evidence that is before the court, I am satisfied that a continued parental relationship with S. will be neither beneficial or meaningful for him. Accordingly, there will be an order for no access to the child.

Released: May 1, 2012

Signed: Justice John Kukurin

Footnote

[1] Rule 14(11) Motion with notice.— A party making a motion with notice shall,

(a) serve the documents mentioned in subrule (9) or (10) on all other parties, not later than four days before the motion date;

(b) file the documents as soon as possible after service, but not later than two days before the motion date; and

(c) file a confirmation (Form 14C) not later than 2 p.m. two days before the motion date.