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 one or more of subsections 48(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

Court File No.: 12/729

Date: 2013-05-06

Ontario Court of Justice

East Region

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

Parties

Between:

The Children's Aid Society of the County of Renfrew

Applicant

-and-

T.R.

M.S.

A.W.

Respondents

Reasons for Judgment on a Motion for Summary Judgment

Before: The Honourable Mr. Justice Grant Radley-Walters

Heard: 29th day of April, 2013

Released: May 6th, 2013

Appearances

• Richard H. Dickinson – Counsel for the Applicant Society
• Cheryl Hess – Counsel for the two children, A. and K.
• Wendy Rogers – Counsel for T.R.
• M.S. and A.W. – Unrepresented

Facts

1. T.R. and A.W. are the biological parents of K.R-W., born in 2000 and A-C.W., born in 2002. T.R. and M.S. are the biological parents of S.M.M.S., born in 2006. The child, S., is not directly involved in the motion for summary judgment.

2. The three children, K., A. and S. were all involved with the Children's Aid Society of the County of Lanark and the Town of S. Falls and subject to an order of Mr. Justice Pedlar, of the Superior Court of Justice, dated November 1st, 2010. By that order, Justice Pedlar placed the child, S., in the care and custody of his father, M.S., subject to the supervision of the Children's Aid Society of the County of Lanark and the Town of S. Falls on certain terms with access to the child S. by his mother, T.R., on certain terms. On that same order, Justice Pedlar placed the children, K. and A. in the care of their father, A.W., subject to the interim supervision of the Children's Aid Society of the County of Lanark and the Town of S. Falls subject to certain conditions with access to the children, by their mother, T.R., subject to certain terms. This order was an interim without prejudice order.

3. The children, K. and A. have continued to reside with their father, A.W., in the City of Ottawa since Justice Pedlar's order. The child, S., has continued to live with his father, M.S., since Justice Pedlar's order, however, T.R. has reunited with that family and she resides with M.S. and S.

4. T.R. and M.S. moved to Pembroke from the Almonte area in approximately January of 2012 and they have resided in the Pembroke area since that time. By order of Justice Ray, dated June 19th, 2012, the court proceedings were transferred from the Superior Court of Justice in Perth to the Ontario Court of Justice in Pembroke. By that order, Justice Ray confirmed that the existing order of Justice Pedlar, dated November 1st, 2010, shall continue to be in effect.

5. T.R. has had a lengthy history with the Children's Aid Societies in Ontario and previously in Nova Scotia. The various Children's Aid Societies have had concerns regarding her ongoing poor mental health, her prescription drug abuse, the condition of her home and a history of domestic abuse.

6. From December 2007 until approximately June 2009, Ms. R. and Mr. S. were involved on and off with Ottawa CAS. In December 2007 the children were apprehended, the W. children were placed in Mr. W.'s care and S. was placed with Mr. S. In January 2008 the W. children were returned to Ms. R. and Mr. S. The concerns at that time were ongoing mental health concerns and the unsanitary conditions of the home. In June 2009, the W. children were apprehended again and placed with Mr. W. due to unsanitary conditions of the home. S. was again placed in the care of his father, Mr. S. At that time, Ms. R. arranged an emergency motion and the children were ordered to be returned to her care. In approximately July of 2009, Ms. R. and Mr. S. relocated to Almonte Ontario and the file was transferred to Lanark, Leeds and Grenville CAS (LLG CAS).

7. In October 2010, LLG CAS received a report regarding concerns of Ms. R.'s ongoing mental health. She had been hospitalized due to her mental health and the condition of the home had significantly deteriorated. Again, the W. children were placed with Mr. W. while S. remained in Mr. S.'s care.

8. In January 2011, Ms. R. admitted to abusing her prescription drugs and to alcohol use. She was connected to Addictions services in her area. At this time it was felt that while Ms. R. addressed her ongoing concerns with addictions and her mental health that the children, A. and K., should remain with their father who could provide a safe, stable and appropriate home for them.

9. I accept the evidence as set out in the affidavit of Beckie Kendrick sworn February 5th, 2013 as well as her affidavit of April 22nd, 2013. Specifically, I accept that there continues to be a number of concerns regarding T.R. and her ability to care for her children. T.R. is plagued with illness and injury and often appears to be in a state of crisis. M.S. and T.R. have been struggling financially. Their plan at the present time is that as of July 1st, 2013 they will move to Kingston where M.S. is planning to work for the company, Bombardier. I also accept the evidence in Ms. Kendrick's affidavit that T.R. has failed to co-operate with the Applicant Society. In addition, she has failed to adequately explain why the child, S., has been absent from school for thirty-three and half days in addition to the nine missed snow days from school. I accept the evidence that the child, S., has missed many more days than most of the other children and that while S. is not in danger of losing his year in grade 1, he will go into grade 2 much further behind than other students.

10. I acknowledge that the CAS worker in Ottawa has been meeting regularly with A.W. and his common law spouse, Natalie Sarault. The Ottawa CAS worker has not found any concerns with Mr. W. and Ms. Sarault's home. They are assessed as fully able to meet the needs of A. and K., physically, emotionally and financially. Those children are connected with a therapist and they attend those meetings regularly. There have not been any concerns identified with respect to their attendance at school.

11. In view of the fact that T.R. and M.S. have recently decided to move to Kingston on or about July 1st, 2013, there is no evidence before me with respect to the residence they will be living in or the potential schools that Ms. R. would propose that the various children attend.

12. With respect to the child, S., both T.R. and M.S. consented to an order on March 13th, 2013, acknowledging that S. was a child found to be in need of protection pursuant to s. 37(2)(b)(i). S. 37(2)(b)(i) of the Child and Family Services Act reads:

"A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or"

13. The acknowledgment that S. was in need of protection relates to the time period in October and November of 2010 when the Children's Aid Society of the County of Lanark and the Town of S. Falls intervened and placed S. with his father, M.S., and the two children, K. and A., with their father, A.W.

14. The Applicant Society is seeking an order that the children, K.W. and A.W. be found in need of protection pursuant to s. 37(2)(b) and (g) of the Child and Family Services Act.

Analysis

15. Rule 16 of the Family Law Rules permits a party to bring a motion for summary judgment after the Respondent has served an Answer or after the time for serving an Answer has expired. The onus is on the party bringing the motion, in this case, the Society to convince the court that there is no genuine issue requiring a trial. In order to make this determination, the court must review the entire evidentiary record, which includes all of the materials filed by both the Society and the Respondents. It is accepted that not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material to an issue to be determined in the case (Children's Aid Society of Toronto v. K.T., [2000] O.J. No. 4736 (OCJ)).

16. In determining whether a genuine issue exists, the court must also consider the strict timelines governing the children protection procedure under the Act and also the best interest of the children.

17. Having read all of the materials filed and having heard the submissions of counsel, I am satisfied that this matter is properly dealt with by way of a motion for summary judgment.

18. It is apparent that the Society's case in this particular factual situation is very strong. T.R. has had a long history of involvement with the Children's Aid Society in both Nova Scotia and Ontario. She has had problems with respect to her mental health which has impacted on her ability to properly parent her children. In October of 2010, T.R. was assaulted by unknown male in her backyard. As a result of that allegation, the police attended the home and the police telephoned the Children's Aid Society as the house was in a state of disarray. There was dog feces on the floor as well as on A.'s blankets. T.R. was distraught at the Almonte District Hospital and was seeking narcotics for her pain which Dr. Forbes refused to prescribe for her as it was unnecessary. The worker for the Children's Aid Society of the County of Lanark communicated with T.R.'s psychiatrist and it was ascertained that T.R. was substance dependent and not properly engaged in counselling. It was determined at that time that the child, S., would be placed with his father, M.S., and that the two children, K. and A., would be placed with their father, A.W. This is confirmed in the order of Justice Pedlar, dated November 1st, 2010.

19. It is implicit in T.R.'s acknowledgment that S. was a child in need of protection by virtue of the consent order that I signed on March 13th, 2013, that the other two children, K. and A., who were living with her at the time were also in need of protection due to her diminished mental health condition.

20. Although it is acknowledged that T.R. has made some improvement since the order of November 1st, 2010, clearly she still has significant mental health issues that impact on her ability to properly care for the child, S., in her care and custody. This is confirmed by her inability to ensure that S. attends school on a consistent basis. T.R. acknowledges that she has been ill on numerous occasions including a recent fall where she injured her head and she continues to struggle with keeping a clean and safe home.

21. I find that any argument by T.R. that her children, K. and A., were not in need of protection in November of 2010, is spurious and without merit. I also find that given Ms. R.'s current mental health that S.R. continues to be a child in need of protection as evidenced by the supervision order and that if K. and A. were returned to her care at the present time, they would be in need of protection.

22. I am also mindful of the fact that T.R. must put her "best evidentiary foot forward" to demonstrate that the material facts are in dispute. It is insufficient to argue that a trial is required so that the Society's evidence may be tested through cross-examination. This submission is akin to a bald allegation or mere denial as referred to in the case law. This issue has been considered in the case of Children's Aid Society of Toronto v. H.(R.) (2000), 2000 Carswell On. 6170, [2000] O.J. No.5853 (On. C.J.). I am mindful in the case before the Court that no affidavit was filed by T.R. in response to the motion for summary judgment by the Society and there were simply submissions made by counsel on behalf of T.R.

23. Counsel for T.R. has also raised the issue of whether or not it is appropriate to split up the summary judgment motion with respect to the protection issue from the dispositional hearing. I have reviewed the law with respect to this issue and specifically the following four cases:

• Children's Aid Society of London and Middlesex v. Angela P., 117 A.C.W.S. (3d) 434, 16 O.F.L.R. 113, [2000] O.J. No. 5719, 2000 CarswellOnt 5594 (Ont. Fam. Ct.), per Justice B. Thomas Granger;

• Catholic Children's Aid Society of Toronto v. Jean L. and Willard R., 116 A.C.W.S. (3d) 541, 16 O.F.L.R. 86, [2002] O.J. No. 3491, 2002 CarswellOnt 2968 (Ont. C.J.), Justice Penny J. Jones;

• Family, Youth and Child Services of Muskoka v. D.F. et al., 118 A.C.W.S. (3d) 673, 16 O.F.L.R. 135, [2002] O.J. No. 4466, [2002] O.T.C. 918, 2002 CarswellOnt 3992 (Ont. Fam. Ct.), Justice Craig Perkins;

• Kenora-Patricia Child and Family Services v. Ann M. and M.M., 45 R.F.L. (5th) 418, [2003] O.J. No. 3911, 2003 CarswellOnt 3804 (Ont. C.J.), per Justice Judythe P. Little.

24. I propose to follow the judgments of Madam Justice Penny J. Jones, Madam Justice Judythe P. Little and Justice Craig Perkins to the effect that it is totally appropriate and proper in cases under the Child and Family Services Act to proceed with a bifurcated hearing and that it is not necessary that the same judge preside on both stages of the case. In this regard, Justice Craig Perkins at paragraph 35 of his decision stated:

"I do so reluctantly, mindful of the fact that I am departing from the decision of a colleague. I cannot say that Justice Granger failed to take account of a statutory provision or a binding authority. However, both before and after his decision (which was unreported until last month), both Ontario Court of Justice and Superior Court of Justice Family Court Judges have fairly commonly been making a finding in need of protection on consent, by default or on a motion for summary judgment and adjourning the disposition issue to another judge. In that respect, and of course in light of the recent decision of Justice Jones, the authority of his decision has been put in question. I would certainly not say that Justice Granger's approach would cause an injustice, but in the case before me I would require a very serious delay in determining what is to happen to K.W., who has been in limbo for over a year. In the region where I sit, a judge who hears a summary judgment motion or who is asked to make a finding on consent would never be available to hear the trial of the disposition issue, as we are all sent away from our home courts for trials. I realize that judicial assignment practices do not dictate the law, but I simply point out that the Court has organized itself according to the interpretation of Justice Jones rather than of Justice Granger."

25. For these reasons, I conclude that T.R. has not raised a genuine issue requiring a trial with respect to the issue of whether K.R.W. and A.-C.W. are children in need of protection. As noted above, I find that both of these children are in need of protection pursuant to s. 37(2)(b)(i) and s. 37(2)(g).

26. The Applicant Society is therefore granted summary judgment without trial pursuant to rule 16(6) of the Family Law Rules on the protection issue.

27. This matter will next return to court on May 15th, 2013 at 9:30 a.m. in Pembroke and if resolution is not possible then it will be adjourned to June 27th, 2013 at 9:30 a.m. in Pembroke before Justice Selkirk for a Trial Management Conference on a dispositional trial.

Released May 6th, 2013

The Honourable Mr. Justice Grant Radley-Walters