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 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.

(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.

(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

No. C48191/09

Date: 2014-08-07

Ontario Court of Justice

North Toronto Family Court

47 Sheppard Avenue East

Toronto, Ontario M2N 5N1

Parties

In the Matter of

The Child and Family Services Act, R.S.O. 1990, c. 11

And in the Matter of:

N.T. born […] 2003, and T.T. born […] 2007

Between:

Children's Aid Society of Toronto — Applicant

- and -

A.T. (mother) and G.H. (stepfather, added as a party to the motions) — Respondents

- and –

P.D. (father of N.T.) and D.B. (father of T.T.) — Respondents

Before the Court

Justice Robert J. Spence

Motion Heard on: 17 July 2014

Jurisdictional issues remedied on: 6 August 2014

Reasons released on: 7 August 2014

Counsel

• Ms. Karen Freed — for the applicant society
• Ms. Heather Hansen — for the respondent mother
• Ms. Patricia Swerhone — for the respondent stepfather
• Ms. Sara Wunch — for the Office of the Children's Lawyer, legal representative of the children N.T. and T.T.
• P.D. and D.B. — respondent fathers, not appearing, service having been dispensed with

Introduction

[1] There are three motions before the court, as follows:

1. The mother and the stepfather (the "parents") have brought a summary judgment motion seeking:

a. An order terminating of the final Crown wardship order made by Justice Harvey Brownstone on December 7, 2010 (the "Crown wardship order");

b. A final order placing the two children, T.T., age seven years, and N.T. age ten years (the "children" or the "boys"), with the parents on a society supervision order, with specified terms and conditions; and

c. A final order that the children's access to the foster parents be in accordance with the best interests of the children, as determined by the parents.

2. The society's motion sought:

a. An order terminating the Crown wardship order;

b. A temporary supervision order with the parents, subject to specified terms and conditions; and

c. A temporary order specifying access between the children and the foster parents.

3. The motion brought by the Office of the Children's Lawyer seeks:

a. An order terminating the Crown wardship order;

b. A temporary supervision order with the parents, subject to specified terms and conditions; and

c. A temporary order specifying access between the children and the foster parents.

[2] As all parties agreed that the Crown wardship order ought to be terminated, and that the children ought to be placed with the parents, I made an order on consent terminating the Crown wardship order and placing the children with the parents subject to society supervision.

[3] That left the following issues to be determined:

1. Should the supervision order with the parents be final or temporary?
2. Should the access order be final or temporary?
3. Should access between the children and the foster parents be specified or in accordance with the parents' summary judgment motion, namely, in the children's best interests?

[4] As the parents' summary judgment motion sought final orders for supervision and for access to the foster parents, I declined to hear the motions for a temporary supervision order and for temporary access to the foster parents, pending the outcome of the parents' summary judgment motion. Obviously, if the summary judgment motion were granted, it would make the other motions moot.

The Foster Parents' Position/Role in the Legal Proceedings

[5] The request to terminate the Crown wardship order was made by the society in its status review application issued January 27, 2014. As required by the Child and Family Services Act, the society gave notice to the foster parents, by serving them with the status review application.

[6] The foster parents did not file a response to the status review application. Nor did they appear in court on the subsequent court dates of March 3, May 5, and June 17, 2014.

[7] Because of the disclosure made by OCL counsel to the court on June 17, 2014 that the two boys wished to maintain access with the foster parents, it was incumbent on the court to ensure that the foster parents were given the opportunity to place their position before the court, should they so choose. Accordingly, on that same day I noted the following in my endorsement:

Foster parents have not filed material but did complain to CFSRB [Child and Family Services Review Board] re denial of access . . . society to forthwith notify foster parents of next court date [July 17] in writing.

[8] Argument was set for the next court date of July 17, 2014. On that date the foster parents did attend court. They had still not filed any material of any kind in the court record. As they were not represented, I spoke to them directly. I first inquired whether they were requesting an adjournment and, second, whether it was their wish to place any evidence before the court. They responded that they had no desire to seek an adjournment, nor did they wish to place any evidence before the court. They stated (and my endorsement reads), that "they rely solely on the argument of the OCL".

[9] On that basis I proceeded to hear argument.

Events Leading to the Current Placement with the Parents

a. As between the society and the parents

[10] It is not necessary to recount the material facts which led to the making of the Crown wardship order. Suffice it to say that the mother is today in a much better place than she was when that order was made in 2010. Subsequent to the making of that order, she and the stepfather entered into a relationship which has apparently flourished. They have their own birth child who is now about two years old. By all accounts, this is a stable, and cohesive family unit, a family unit within which, all parties agree, the children ought to be living permanently.

[11] In February 2012, mother and stepfather (then her fiancé) advised the society they intended to plan for a return of the children to their care. Beginning in March 2012, the society agreed to extend access to the parents. The parents purchased a home close to the foster home to facilitate the transition and the reunification process.

[12] In May 2012, the parents' own child was born.

[13] Access between the parents and the children continued to increase until November 2012, when the society commenced a reunification homestudy. This homestudy was very comprehensive in its scope, involving many interviews with parents, children, collaterals and so on.

[14] The parents cooperated fully in this process.

[15] Overnight access with the parents began in December 2012, during the Christmas school break.

[16] Extended overnight access began in May 2013.

[17] In September 2013, access increased to a full day on Saturdays, as well as overnights twice each month and one week during the Christmas school break.

[18] The reunification homestudy was subsequently completed, with the recommendation that reunification should take place, by placing both boys in the permanent care and custody of the parents, subject to society supervision. In January 2014, the children were advised of the plan to transition them to the parents' permanent care. The children were told that this would occur during their 2014 March break from school.

[19] The children have been in the parents' fulltime care since on or about March 6, 2014. There has been no access to the foster parents since that date.

b. The foster parents' actions during this same period of time

[20] It is important to note that the facts which I set out in this section of my reasons are not contested. I note this at the outset because, to a large extent, I will rely on those facts in determining the summary judgment motion.

[21] Following the tragic death of A. in June 2013, the parents felt that the two boys would benefit from access to grief counselling in order to better cope with the death of their sister. However, the foster mother was opposed to this, even though the school which A. had been attending before her death was providing grief counselling to A.'s school mates.

[22] In the face of the foster mother's objection to grief counselling for the boys, the parents took the entire family to see the boys' play therapist, Sandra Webb, to participate in a counselling session. The stepfather states that this session "was immeasurably helpful to move our family toward healing."

[23] The following is taken directly from the stepfather's affidavit sworn July 10, 2014:

On or about June 12, 2013, following A.'s passing, there was a meeting of multiple parties for the purposes of planning A.'s funeral. Specifically, the meeting included myself, [mother], the children's [society] worker Maria Beck and her supervisor, the children's play therapist Sandra Webb, the foster parents M.L.B. and R.B. and two representatives from the foster parent agency Bridgeport. In the course of this meeting, the foster parent, M.L.B. made what we considered to be suggestions lacking judgment and in poor taste, specifically:

a. The foster mother, M.L.B. refused cremation as an option to dispose of A.'s remains, stating that it was against her religious beliefs (the foster parents are members of the Christian Fundamentalist Church in Bowmanville). The foster parents were reminded that, although we were both Christian, [neither] myself nor [mother] share that specific religious belief and that our preference was to utilize cremation; but, in an act of conciliation [we] agreed to have A. buried.

b. [omitted]

c. The foster mother, suggested that A. be buried in a cemetery of the foster mother's choosing, where the foster parents intended to be buried. Although shocking, in an effort of compromise and to acknowledge their role in A.'s life, myself and [mother] offered to pay for a memorial stone to be place in the B.'s church cemetery; and, advised the Br. that Aurora was to be buried in the G.H. [stepfather's] family plot near Belleville. The foster mother continued to oppose this suggestion but was overridden by all, including her own husband who indicated that it was a fair compromise.

[24] It is important to understand the foster parents' actions in the context of where the homestudy was at by the time of A.'s death. The homestudy was moving very positively toward reunification, as extended overnight access had already begun. By June 2013, it must have been apparent to everyone, including the foster parents, that the most likely outcome of the homestudy would be a permanent reunification with the parents.

[25] Following the commencement of the reunification process, the foster parents announced, for the first time, that they were now wishing to move forward to adopt the children. They made this announcement to the children and after the children had been told that the reunification process was underway. Significantly, prior to the commencement of the reunification process, the society had asked the foster parents whether they were interested in adopting the children. In fact, the society asked the foster parents twice whether they had any interest in adopting the children. And on each occasion the foster parents said no.

[26] And yet, once the homestudy was underway, and once it had started to become clear that reunification was a real possibility, the foster parents then changed their minds and chose to make their announcement to the children.

[27] In September 2013, the society advised the parents that the foster parents had commenced a formal complaint process against the society to the Child and Family Services Review Board.

[28] The foster mother refused to refer to the mother as the children's "mom" in front of the children. In fact, the foster mother insisted that the children refer to mother as "A.T." and that they refer to the foster mother as "mom".

[29] The foster mother told A. that the parents were trying to "bribe" her to live with them and that "money isn't everything".

[30] On more than one occasion, the foster mother offered up outings/events to the children, intended to directly conflict with the parents' regularly scheduled access visits which were then ongoing as part of the reunification process.

[31] Based on the parents' ongoing access and interaction with the children, the clear message from the children to the parents was that the foster parents were attempting to persuade the children to remain with them and to reject returning home to live with the parents.

[32] Early on in the reunification process, the foster mother openly, and in front of the children, questioned the parents about their participation in the parents' church and whether the parents' intended to continue to take the boys to the foster parents' church subsequent to the reunification.

[33] In late February 2014, T.T., then aged seven years, told his parents that they were going to Hell. He also told his parents that the foster parents had urged him to pray for the parents' salvation at bedtime. Their salvation would materialize if they were to become Christians and to start attending religious services. This disclosure by T.T. resulted in an immediate letter from the parents' counsel to the society, expressing concern over what appeared to be the foster parents' manipulation of the children, coming as it did on the virtual eve of reunification.

[34] On March 4, 2014, just two days before the reunification placement, the foster mother contacted the society to complain that (according to the foster mother) T.T. had disclosed that he had been physically abused by the mother during an access visit. A full investigation by the society ensued, and the abuse complaint was not verified.

The Legal Proceedings Between January 2014 and July 2014 – The Society Changes Its Position

[35] As I stated at the outset of these reasons, in its initial status review application issued January 27, 2014, the society sought a termination of the Crown wardship order, as well as a society supervision order with specified terms and conditions.

[36] Insofar as access to the foster parents was concerned, the society specifically requested in that status review application:

[the parents] will facilitate access between [the two boys] and their former foster family for so long as it remains in their best interests.

[37] On July 3, 2014, the society issued an amended status review application wherein it deleted the words "for so long as it remains in their best interests", and replaced that access provision with a more detailed scheme of access between the children and the foster parents.

[38] What had occurred between January 2014 and July 2014 that had caused the society to change its position?

[39] The society had continued to monitor and investigate the ongoing access with the parents and to have discussions with the children, as well as the children's play therapist.

[40] The children had been living with the foster parents since about June 2009, a period in excess of three years as at the date of the commencement of the reunification homestudy. Based on all of the information the society gathered between January 2014 and the end of June 2014, the society formed the belief that the children's connection with the foster parents was sufficiently strong that any future access could not simply be left to the parents to decide, in the "best interests" of the children.

[41] The children themselves were at times expressing the wish to maintain ongoing contact with the foster parents. But it is also apparent that the children, and particularly ten year-old N.T., were feeling somewhat conflicted. For example, at one meeting between N.T. and the society worker, N.T. said that he "kind of wants to move [to his parents], kind of not".

[42] The play therapist, Ms. Webb opined, in a February 2014 email, that both boys would benefit from the assurance that they will visit with their foster family after the move. Ms. Webb stated:

It would probably be best if there was a definite plan i.e. once a week or every other week for a while with a specific day and time for the visit.

[43] What Ms. Webb meant by access "for a while" was not entirely clear. However, what was clear was that she did not feel the children ought to be summarily cut off from the foster parents.

[44] One month later, on March 30, 2014, the nature of this access was seemingly clarified in a letter from Ms. Webb to the society wherein Ms. Webb stated:

I believe the boys need contact with their foster family. At the very least, a goodbye visit . . . . I am very aware that there was a lot of tension between the adults and an unfortunate accumulation of hurt and conflict. This matter about contact is about the children and their need for some closure . . . . N.T. and T.T. need to have some kind of ritual and closure to honour the last five years of their life with their foster family. This will build on N.T. and T.T.'s trust and belief that their mother and [stepfather] will listen and help them. In this case, to say goodbye, as well as grieve the end of this time as an important time in their lives. I truly believe that helping N.T. and T.T. say goodbye to their foster family will give [the parents and the boys] a stronger, healthier connection as a family in the future.

[45] The society would certainly have been aware of the ongoing and intense conflict between the foster parents and the parents, resulting from the incidents which I referred to earlier in these reasons.

[46] It is reasonable to infer that the society concluded from the foregoing that if the access were simply left to the parents to decide based on their own view of the children's best interests, the access would likely either not occur or, if it were to occur, it would be very restrictive in nature.

[47] And all of this seemingly led the society to conclude that a more structured form of access was required. Accordingly, the society issued its amended status review application on July 3, 2014.

The Society Changes Its Legal Position Again

[48] Insofar as the access issue is concerned, the society took the position that there was a genuine issue for trial, arguing that the summary judgment motion brought by the parents ought to be dismissed – except for the request to terminate the Crown wardship order.

[49] The society's position at the outset of court on July 17, 2014 was that the supervision order with the parents ought to be temporary and the terms and conditions of that supervision order ought to be temporary, including the request for specified access between the children and the foster parents.

[50] The society initially argued that when it issued the original status review application in January 2014 it was not aware of how T.T., in particular, would react to his removal from the foster home. And it was for that reason that the society was compelled to amend its status review application, as discussed above.

[51] In determining what is in the best interests of the children, the society argued, the court must ultimately look at the factors set out in section 37(3) of the CFSA. And because of the nature of these factors in the particular circumstances of this case, a trial involving oral evidence would be required.

[52] Notwithstanding all of the foregoing, the society changed course in mid-argument. The society conceded to the court that it would not oppose the parents' summary judgment motion, provided that the parents' facilitated a goodbye visit for the children.

[53] While this recounting of the society's changes in its position throughout this litigation may appear to be a criticism of how the society approached this case, the court does not intend it as such. In fact, this final concession by the society appears to mirror the position taken by Ms. Webb in her March 30, 2014 letter, referred to above.

The OCL's Position

[54] The motion brought by the OCL seeks a much more extensive form of access, including weekly overnight visits from Friday to Saturday. Importantly, the OCL seeks an order that access be temporary only, so that (presumably) the OCL can continue to remain involved and to meet periodically with the children to ascertain the ongoing views and preferences of the children.

[55] OCL counsel points out that the children have been with their foster family for about five years, so that T.T. would have been only about two years old when he first arrived at the home of the foster parents. This five year period represents a considerable amount of time in the lives of two young children, particularly T.T.; so that when the court receives evidence that the children are expressing the view from time-to-time that they wish to continue to visit with the foster parents, the court should not lightly dismiss such evidence.

[56] Counsel further points out that there is conflicting evidence about views and preferences. She argues that the children's views and preferences represent a material fact which is in dispute, a material fact which cannot be resolved without a trial and viva voce evidence. It is on this basis that the OCL argues the parents' summary judgment motion ought to be dismissed.

The Law

a. Rule 16

[57] Rule 16 of the Family Law Rules provides as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

What is clear from this rule is that where there is no genuine issue for trial, it is mandatory that the court make a final order.

b. The case law interpreting Rule 16

[58] 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 moving party, to show that there is no genuine issue for trial. Children's Aid Society of Hamilton v. M.N..

[59] While summary judgment should proceed with caution, it is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future. Jewish Child and Family Services of Toronto v. A.(R.), 2001 O.J. No. 47 (S.C.J.).

[60] The court's role on a summary judgment motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material requiring a trial. Because summary judgment is now explicitly contemplated by rule 16, this may broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the "best interests, protection and well-being of the children" will determine ultimately the appropriateness of summary judgment. Children's Aid Society of the Regional Municipality of Waterloo v. T.S..

[61] A party answering a motion for summary judgment cannot simply rest on bald denials. That party must put its best foot forward, showing that there is a genuine issue for trial. Children's Aid Society of Toronto v. K.T..

[62] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a summary judgment motion. This is reserved for the trier of fact. Children's Aid Society of the District of Nipissing v. M.M.; Children's Aid Society of Hamilton v. M.N., supra.

[63] Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact. Children's Aid Society of the Regional Municipality of Waterloo v. H. (T.L.), 2005 ONCJ 194.

[64] In determining if there is sufficient evidence led by the party opposing the motion for summary judgment, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. Children's Aid Society of the County of Dufferin v. J.R..

Discussion

[65] The primary issue which is in dispute is whether there should be any access between the children and the foster parents and, if so, what should be the nature of that access.

[66] The parents argue that this can be determined on a final basis pursuant to their motion for summary judgment. The OCL argues that the motion for summary judgment must fail and the court must then craft an order for access on a temporary basis.

[67] OCL counsel correctly stated that at least some of the evidence suggested that the children's views and preferences support maintaining contact between the children and the foster parents. However, there was indeed some conflict in the evidence insofar as views and preferences is concerned.

[68] The question is whether this conflict in the evidence concerning the children's views and preferences is sufficient to constitute a conflict over material facts which must be proved, such that the court is deprived of the ability to make a decision in the best interests of the children without first resolving this conflict at a trial, with viva voce evidence.

[69] As I noted earlier, not every conflict requires resolution. It is only those conflicts which go to the heart of the issue, those conflicts which must be proved, that will ultimately require a court to conclude that summary judgment cannot be granted, and that the issue must proceed to trial.

[70] For the reasons set out below, I have come to the conclusion that while there may be a conflict in the evidence about the children's views and preferences, that conflict is not something which needs to be resolved in order to make a final determination about access. Put another way, the issue of views and preferences is not a material fact, the resolution of which stands in the way of making an order for summary judgment.

[71] Section 37(3) of the CFSA sets out the circumstances which the court must consider in determining what is in the best interests of children. That section provides:

Best interests of child

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. 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.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. 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.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. 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.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[72] As paragraph 9 of section 37(3) reveals, the views and preferences of a child are a factor which the court ought to consider; but views and preferences are only one factor.

[73] While a child's views and preferences should not be lightly dismissed, in my opinion, in the particular circumstances of this case, T.T. and N.T.' views and preferences are outweighed by a number of other factors, including those factors set out in paragraphs 1, 4, 5, 6, 7 and 10 of section 37(3) of the CFSA.

[74] For the purpose of these reasons, I will put the OCL's position at its highest, namely, that the children do wish to maintain some form of contact with the foster parents and that this wish is clear and unambiguous. And I will proceed with my analysis on the basis that if there were a trial with viva voce evidence, the children's views and preferences would support this position.

[75] Nevertheless, despite these views and preferences, I find that the uncontested material facts lead to the conclusion that there is no genuine issue for trial. In other words, the uncontested material facts lead inexorably to one outcome only, notwithstanding the children's expressed views and preferences.

[76] The society conducted, what could only be described as a most intensive and extensive reunification homestudy, a process which unfolded over the better part of two years. That exhaustive study resulted in a finding which none of the parties dispute, namely, that the best interests of the children require that they be reunited with their parents.

[77] As at January 2014, when the society issued its initial status review application, the society was of the view that access to the foster parents should be based simply on what was in the children's best interests. And the society was prepared to leave this determination to the parents. Put another way, the society had confidence in the parents' ability, as custodial caregivers, to make decisions in the best interests of the children.

[78] Based on subsequent investigations, and out of an abundance of caution, the society issued its amended status review application wherein it requested a more extensive access order as between the children and the foster parents.

[79] However, when this case reached the argument stage, the society changed course and essentially agreed with the parents that, except for the need for a goodbye visit, the more extensive access visits which the society sought in its amended status review application was no longer necessary, in the best interests of the children.

[80] No party – the OCL included – has conducted a more thorough, a more exhaustive and a more intensive investigation of the proposed reunification than the society. While this court does not automatically defer to the society, the court cannot disregard this fact. Nor can the court ignore the fact that as at January 2014, the society and the parents were ad idem as to what the final outcome should be.

[81] Again, what is undisputed is that the actions of the foster parents have interfered with the reunification process. Moreover, the foster parents have engaged in what could only be described as a course of conduct directed to manipulating the children in an effort to dissuade them from returning to live with their parents. Even if I were to place this interference and manipulation at its highest by accepting that the foster parents acted in what they believed was the best interests of the children, much of what they did was not only inappropriate, their actions revealed a neglect and clear disregard for the emotional wellbeing of these children whose care they had been entrusted with for five years.

[82] The foster parents' stated intention to move forward with adoption after the reunification process was begun, and only a very short time after earlier declining adoption, was not only not child-focused but revealed either an inability or unwillingness to place the children's emotional needs ahead of their own needs.

[83] And the foster parents compounded this disregard for the children's emotional wellbeing by choosing to announce their changed intentions directly to the children.

[84] The foster parents' belief that the parents' religious views fell below the standard of their own religious adherences and the religious upbringing of the children, and the manner in which they conveyed this to the children, revealed a high degree of insensitivity toward the children. This insensitivity goes directly to the considerations set out in paragraphs 1, 4, 5 and 6 of section 37(3) of the CFSA.

[85] Moreover, the foster parents' poor judgment and insensitivity respecting the emotional needs of the children threatens the parents' ability (as permanent custodial caregivers) to provide appropriate and consistent continuity of care. Appropriate and consistent continuity of care necessarily involves the need for clear and consistent messages to the children about the custodial family's core values, the values that the children should learn about and, in turn, incorporate into their own lives. This, in part, is what paragraph 7 of section 37(3) of the CFSA incorporates.

[86] Similarly, the foster parents' insensitivity surrounding the death of A., and the disposal of her remains, demonstrated a lack of concern, sympathy and understanding for the feelings and wishes of the parents, particularly A.'s birth mother; and more particularly as A.'s death occurred in the context of a reunification homestudy that almost certainly looked to reach a positive conclusion in favour of the parents.

[87] The foster mother's insistence that the children refer to her as "mom" and that they refer to their mother as "A.T." could only fuel added confusion for the children and their understanding of where the various participants stood in relation to themselves. What could the children have thought, what confusion must they have felt in the face of the foster mother's dictates to them about this required nomenclature?

[88] In short, the foster parents' actions make it very clear to this court that the high degree of conflict between themselves and the parents has reached the level where the emotional wellbeing of the children would be very much at risk if the children were to have any meaningful access to the foster parents. On this issue, there are no material facts in dispute.

[89] As I noted earlier, the foster parents have not had any access to the children since on or about March 6, 2014, a period now in excess of five months. To resurrect access would undoubtedly resurrect the conflict which, until March 6, 2014 had been ongoing and which, in my view, threatened the emotional wellbeing of the children.

[90] Tied directly to the children's emotional wellbeing is the children's need to have finality in this proceeding – specifically, the consideration set out in paragraph 10 of section 37(3) of the CFSA.

[91] Were this court to make a temporary access order, the children would remain in a type of litigation limbo. They would ultimately be aware that the litigation was ongoing. They would continue to have the OCL involved in their lives. What would this involvement mean?

[92] With continued OCL involvement, the children would be required to meet with the OCL on a periodic basis. The OCL would continue to inquire of the children how their access was progressing, the quality of the relationship between the children and the foster parents, the degree of conflict, if any, between the foster parents and the children and/or the parents themselves, and the children's ongoing views and preferences respecting the access between themselves and the foster parents.

[93] I reiterate what Lane J. stated at paragraph 29 in A.(R.), supra:

those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future.

[94] Moreover, recent cases have also focused on the importance of early resolution in child protection cases and, in particular, through the use of rule 16 summary judgment motions, within the context of rule 2. See Halton Children's Aid Society v. K.C.L., 2014 ONCJ 168.

[95] Rule 2 provides:

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly.

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[96] In my view, paragraphs (a), (b) and (c) are particularly relevant to the present case.

[97] Everyone in this case who expressed the wish to do so, has had the opportunity to put forward their evidence. There are no material facts in dispute, upon which the court need rely in order to reach a decision. Fairness dictates that no one is shut out of the process. In this case no one has been denied the opportunity to be heard.

[98] The need to save time is directly tied to paragraph 10 of section 37(3) of the CFSA, namely, the need to ensure that children are treated justly, in their best interests, avoiding unnecessary delay, and recognizing that saving time for children is of utmost importance.

[99] This case is certainly important, as the best interests and wellbeing of the children are directly tied to the outcome. However, whatever complexities may exist within the facts of the case have been fully vetted in the comprehensive evidence which has been filed in the present motions before the court.

[100] I agree with the comments of Katarynych J. in Catholic Children's Aid Society of Toronto v. T.S., wherein she stated at paragraph 20:

I also kept in mind the approach of the Newfoundland Court of Appeal in Lundrigan Group Ltd. v. Pilgrim – that rules governing practice and procedure in the courts are guidelines for action, to be used in the furtherance of procedural justice. They are not inflexible "iron rails".

[101] Within the context of rule 2, the comments of Katarynych J. were also approved of just last month by Justice Stanley B. Sherr in Children's Aid Society of Toronto v. J.W., 2014 O.J. No. 3448.

[102] In other words, the increasing focus of the courts is to follow those rules which appropriately permit justice to be done in a manner which is fair to all of the parties in the proceeding.

[103] The notion of fairness and justice, combined with the need for proportionality was most recently considered by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7. In that case, the Court stated:

Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised. However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.

A shift in culture is required. The proportionality principle is now reflected in many of the provinces' rules and can act as a touchstone for access to civil justice. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. Summary judgment motions provide an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

Summary judgment motions must be granted whenever there is no genuine issue requiring a trial. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[104] Although Hryniak was specifically about Rule 20.04(2.1) of the Ontario Rules of Civil Procedure, the court's comments about the need for a "shift in culture" and the importance of "proportionality" are, in my view, equally apt to the philosophical underpinning of rule 2.

[105] In Hryniak, the Supreme Court of Canada was considering the (then) new Rule 20.04(2.1), which provided some expanded powers to the courts in the judicial consideration of summary judgment motions. The Supreme Court set out a roadmap for how courts should employ the expanded powers provided by that Rule. While I need not decide whether the particular roadmap in Hryniak is applicable to rule 16 summary judgment motions, what is important for the purpose of the present summary judgment motion is the attitude of the Supreme Court of Canada, with its emphasis on proportionality and timeliness, something which in my view is reflected both in rule 2 as well as in rule 16.

[106] On the facts of the present summary judgment motion, there is no need to decide whether this court has the expanded summary judgment powers discussed in Hryniak. It is sufficient to conclude that there is no genuine issue requiring a trial. Moreover, the interests of justice and fairness to all parties and, most particularly to the children, dictate that the within proceeding be brought to an end.

Costs

[107] Before I conclude, I wish to address the issue of costs.

[108] Rule 24 provides:

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY

(2) The presumption does not apply in a child protection case or to a party that is a government agency.

[109] The parents, in their summary judgment motion, have sought costs against the society. Doubtless, given their success in this summary judgment motion they would wish to press that claim.

[110] Normally when a court releases reasons for a decision, it will give the parties an opportunity to address the issue of costs afterwards.

[111] However, in the particular circumstances of this case I have concluded that costs are not warranted, without the need for further submissions. I have reached this conclusion having regard to the wording of rule 24(2), as well as the following.

[112] In deciding whether or not to award costs against a society in a child protection case, the test to be applied is whether a reasonable person would perceive the society as having acted unfairly and unreasonably in its conduct. See, for example, Children's Aid Society of Ottawa-Carleton v. C., 2000 CarswellOnt 5448 (S.C.J.).

[113] I appreciate the frustrations and difficulties which the parents experienced throughout this process. The reunification homestudy took a very long period of time, during which the parents were placed under close scrutiny and subjected to much intrusiveness in their day-to-day lives.

[114] While this was ongoing, the parents suffered the terrible tragedy of the death of A., an event which no doubt made the reunification process that much more difficult to deal with.

[115] It is clear from the parents' evidence that, from their perspective, the society dragged its heels in the time leading up to the first status review application. It is also clear from the parents' evidence that they were upset that the society changed its position when it issued the amended status review application in July 2014.

[116] However, this court is not in a position to determine on the evidence that the society's two-year long investigation was inordinately long or that it otherwise meandered in a way that was not warranted. In order to make such a finding and, particularly, a finding that the society acted unreasonably, the court would have to hold a trial of an issue to hear all of the evidence regarding the homestudy process. Such a trial would be tantamount to the tail wagging the dog.

[117] Nor, as I discussed earlier in these reasons, do I find that the society acted unreasonably when it changed its position by issuing the amended status review application. The society was caught in a very difficult position and, at all times, was mandated to act in accordance with its view of what was in the best interests of the children.

[118] I wish to make it clear, that had the society's view of the children's best interests been unreasonable, that may have changed my opinion on the costs issue. However, as I stated earlier, the manner in which the society conducted this litigation, while perhaps a bit awkward at times, was nonetheless not unreasonable.

[119] On all of the evidence before me, I cannot conclude that a reasonable person would find that the society acted unreasonably. Accordingly, the request for costs does not meet the test to be applied in Society of Ottawa-Carleton, supra.

[120] Finally, even if it could be successfully argued that the society acted unfairly and unreasonably, the position taken by the OCL in opposing the parents' summary judgment motion in this case, still necessitated the filing of essentially the same evidence by the parents, as well as the subsequent court attendances and argument of this summary judgment motion. In other words, the legal proceedings were not materially lengthened by the position which the society chose to take.

Conclusion

[121] For all of the reasons outlined herein I make the following order:

1. The Crown wardship order made by Justice Brownstone on December 7, 2010 is terminated, with respect to the children, T.T. and N.T.

2. Both children are placed in the care and custody of the parents, A.T. and G.H., subject to society supervision for six months, on terms 1 to 7, set out in the Appendix to the society's initial status review application, issued January 27, 2014.

3. At term 5 of the Appendix, the words "as determined by the parents" shall be added to the words "for so long is it remains in their best interests".

4. In addition to the access provided for in term 5, the society will facilitate a single in-person goodbye visit between the foster parents and both children. That goodbye visit shall be fully supervised by the society. The society shall ensure that the foster parents are advised beforehand to refrain from doing or saying anything to the children during that visit which could be construed as undermining the relationship between the children and the parents. In the event the foster parents disregard this condition, the society worker supervising the visit shall forthwith terminate the visit, in which eventuality no makeup or additional visit shall take place.

5. The motions brought by the society and by the OCL for interim relief are dismissed.

6. There will be no costs of any of the motions.

7. The status review of this supervision order will be returnable before me on January 29, 2015, at 10:00 a.m.

Justice Robert J. Spence

August 7, 2014