Endorsement

File No: 45/06

Date: 2014-03-10

Parties and Counsel

Applicant: Children's Aid Society of St. Thomas & Elgin

Respondents: K. McQ.; C. VC; G. & C. VC; A. & V. S.

Date of Hearing: March 6, 2014

Counsel:

• J. Dittrich for the Applicant
• K. Orkin for K. McQ.
• N. Hellyer for C. VC.
• G. & C. VC; A. & V. S., not attending

Officer of the Court: P. Van Meppelen, O.C.L.

Decision

The status review application before the court seeks to grant custody of A.D.VC, […], 2004 and L.J. VC, […], 2005 to their paternal grandparents, G. & C. VC, pursuant to s. 57.1 of the Child and Family Services Act. The children have been in the care and custody of these grandparents since 2008.

On January 9, 2014, the parties submitted consents and an agreed statement of fact supporting the orders sought. The consent asked me to endorse ongoing findings of risk pursuant to subsections 37(2)(a), (b), (d) and (g) of the Act. However, the agreed statement made no reference (except a few indirect hints) to what facts might support these findings. The agreed statement mainly focused disposition.

I refused to endorse the orders sought and sent the parties away to prepare a more fulsome agreed statement.

The matter was on the list today. After January 9, 2014, the Applicant issued a Summary Judgment motion and affidavit in support. In this motion, the relief sought was a final judgment on the ongoing findings mentioned above but it then included the dispositions originally identified in the consents filed in January. It therefore appeared the parties could not agree on the facts supporting ongoing findings with the result that the consents to disposition might be in jeopardy – notwithstanding that the January agreed statement of fact was attached as an exhibit.

When I questioned what was still being agreed upon, I was advised that both findings and disposition would be consented to by all of the parties. I questioned the purpose of the Summary Judgment motion if that was the case and was told the motion was issued because it would be too difficult to get signatures from all of the Respondents in time for this hearing.

I questioned how I was to make any findings of fact respecting ongoing risks in the face of the Summary Judgment motion. These findings are critical not only to my jurisdiction to make the order but also to how a domestic motion to change the order might unfold. In response, all of the parties stressed how important it was that the order be made immediately; none of their submissions focused on the differing tests for granting summary judgment or granting an order on consent; or my jurisdiction to endorse any order based on both a consent and summary judgment.

With respect to all of the parties who would like very much to close out this file and be done with it, I am not prepared to endorse on the strength of both a consent and a motion for summary judgment.

I initially considered ignoring the motion and applying the affidavit as an extension to the agreed statement but on a more critical review of the affidavit, there are paragraphs that demand a formal adoption by both of the biological parents. The affidavit adequately supports ongoing risk but then sets out pre-conditions attaching to either parent for bringing a domestic motion to change. As to the mother, her entitlement to issue a motion is – by its wording – restricted in subparagraphs 21(e), (g) and (h) and as to the father, by subparagraphs 22(g) and (j).

On the facts, these may ultimately be found to be both reasonable and rational demands but I do not intend to bind the parents to them without their signatures. The parents are both represented but I am not prepared to assume, as a matter of faith, that these demands were specifically reviewed by counsel with their clients.

Further, I am not aware of any statutory provision that would permit me to attach these pre-conditions to any order let alone without notice to the parents.

Lastly, I refuse to participate where the parties knowingly combine provisions from one Rule meant to secure a final order to those of another. This includes the filing of consents on uncontested trials or agreed statements or consents that require findings of fact to Summary Judgment motions. Once the Applicant chooses the path to a final order, it should prepare materials and argue the matter accordingly. This comment relates mainly to Summary Judgment motions that parties want resolved based on findings of fact.

This matter is adjourned to April 17, 2014 for a "consent" hearing.

Released: March 10, 2014

Justice M.P. O'Dea