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.
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
Ontario Court of Justice
Date: March 6, 2015
Court File No.: Toronto CFO 12 10147 A2
Between:
CHILDREN'S AID SOCIETY OF TORONTO, Applicant,
— AND —
O.G. and T.A.I. Respondents.
Before: Justice Penny J. Jones
Summary Motion heard on: January 28, 2015
Ruling released on: March 6, 2015
Counsel
Ms. Cristina Siviero — counsel for the applicant society
Ms. Victoria Boger-Mull — counsel for the respondent mother
Ms. Marlo K. Shaw — counsel for the respondent father
Mr. Louis Alexiou — counsel for the Office of the Children's Lawyer, legal representative for the child
Decision
JONES, P. J. J.:
[1] Introduction
[1] This is my ruling on a summary judgment motion brought by the Children's Aid Society of Toronto (the Society) under Rule 16 of the Family Law Rules O. Reg. 114/99 (Family Rules) relating to the child D.M. (D.M.) born […], 2003. In the motion, the Society submits that there is no genuine issue requiring a trial and accordingly, seeks a finding that the child is in need of protection under section 37(2)(b)(i) and section 37(2)(g) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the Act). If a finding is made, the Society seeks an order under section 57.1 granting sole custody to O.G. (mother) with access to T.A.I. (father) in accordance with the child's wishes. The Society also requests various ancillary orders as incidents of custody and access be made which would dispense with the necessity of obtaining consents from the father should the mother wish to travel with the child or obtain a passport or other government-issue documentation relating to the child. In the alternative, should the court identify a triable issue, the Society asks that the court give directions under Rule 16(9) as to how the trial of the issue should proceed.
Position of the Other Parties
[2] The mother supports the position taken by the Society as to finding and disposition. She agrees with the factual basis alleged by the Society in support of the orders sought. It is her position that there are no triable issues requiring a trial.
There is no dispute as to the fact that D.M. has refused any access to her father for almost three years and has indicated to her mother, the Society, and her lawyer that she is not prepared to engage in any reintegration counselling at this time. D.M. is now 12 years of age.
[3] The father is prepared to consent to a finding that the child is in need of protection under section 37(2)(g), but for completely different reasons than those of the Society. It is his position that the child is in need of protection because she is at risk of emotional harm arising from parental alienation. This alienation, in his view, which has effectively deprived the child of a healthy relationship with her father thereby putting her at risk of emotional harm now and in the future. According to the father, the factual basis for the finding is relevant, both to finding and disposition, as a finding of parental alienation will help to inform which dispositional order would be in the child's best interests.
[4] If a finding is made, the father urges the court to make one of three possible dispositional orders which he believes are in the child's best interests (in declining order of preference). His first position is that the child be placed in his care and custody subject to Society supervision with a condition requiring the child participate in therapy. In the alternative, he asks that the child be placed into the joint care and custody of both the mother and the father, subject to Society supervision, including a condition requiring the child to participate in therapy. In the further alternative, he seeks an order that the child be placed in the care and custody of the mother with regularly scheduled access to him, with a provision for the release of information, and an order prohibiting the mother from removing the child from the jurisdiction without his permission.
[5] The Children's Lawyer supports the position of the Society and the mother. It is his position that the court should give considerable weight to his client's wishes in determining which dispositional order would be in his client's best interests. According to counsel, his client wishes to remain with her mother and have no access to her father. He advises that his 12 year old client's wishes have been clear and consistent throughout this proceeding.
Background Facts
[6] O.G. and T.A.I. are the biological parents of D.M. The parents met in 1997 when they were both working in Israel. The father returned to Canada and sponsored the mother to come to Canada, and they were married here in 2001. The marriage was not a happy one, and the parties separated when the child was approximately 10 months old.
[7] At the time of the separation, the parties argued, and according to the mother, the father assaulted her, and during the assault, he accidentally struck the infant (the father denies ever striking the child.) The police were called, and the father was charged with assault. He was subsequently convicted of assault against the mother and was given probation and a suspended sentence.
[8] Shortly after separation, the mother obtained a sole custody order and the father was granted supervised access which, in 2006, was expanded to include alternate weekend access.
[9] According to the parties, access has always been problematic. The father alleges that the mother has systematically alienated the child from him by making negative comments about him that caused the child to become increasingly resistant to access. The mother denies the claim that she alienated the child from the father. She claims that the child is resistant to access because the father made negative comments about her to the child during access, spent approximately one year away from the child in 2007 when he visited Egypt, and has forced the child to exercise access against her will.
[10] This matter has a lengthy litigation history. Prior to the commencement of this child protection proceeding in 2012, the father returned to family court in four separate proceedings to obtain, and then to enforce access orders. Over many years, the family court attempted to normalize access between the parties without success. From all reports, this has been a high conflict domestic file.
[11] From reading the judge's endorsements relating to the domestic file attached as exhibits to the father's affidavit, it is clear that the case management judge was satisfied that this case raised serious concerns that parental alienation by the mother had been occurring. On January 23, 2012, in response to this concern, the case management judge changed sole custody to joint custody on a final basis and ordered that the police to actively enforce the father's right to unsupervised access to the child every Saturday from 1 p.m. to 4 p.m. He made the order without a trial and did so by invoking rule 2 and section 106 of the Courts of Justice Act; he then stayed the proceedings and ordered that all further proceedings occur under the Child and Family Services Act with Children Aid Society involvement. He cancelled the child's passport and ordered that neither party shall obtain a passport for the child or take the child outside Canada without the notarized written consent of the other parent.
[12] It is not contested by either party that, in the fall of 2011 and in the spring of 2012, the child, then aged 8, was actively resisting access to her father. In order to enforce his right to access the father sought a court order for the police to actively enforce his right to access in the fall of 2011. He obtained such an order on an interim basis and began to enforce his access order with police assistance. According to the mother, not contested by the father, the police then began to attend at the access exchanges, and would stand by as the father would forcibly drag the child into his car. On at least one occasion, the police physically picked up the resisting child and placed her in her father's car. The mother, who was present at access exchanges, reported that the child all the while would be crying and screaming for help. The father, in his responding affidavit, did not deny that this was occurring, but denied that he had ever harmed the child.
[13] After the January 2012 final order was made, the father continued to seek police assistance in enforcing his access. The mother swore in her affidavit that she told her daughter that she had to attend access because, if the child did not go, she would be taken away from her. The mother would force the child to attend the access exchange point, and the father would then force the child to enter his car for the purposes of exercising access.
[14] In February, the police called the Society because they were concerned about their role in enforcing an access order when the child was refusing to go into her father's car. According to the mother, (not denied by the father) D.M. was screaming, crying and kicking, causing quite a public scene. According to the Society, who spoke with the police, D.M. had told the police that she did not want to go with her father.
[15] The situation continued to escalate. According to the mother (not denied by the father), on March 3, 2012, a police officer physically picked up the child and forcibly placed her in her father's car. When the child returned from this visit, she complained of soreness and the mother noted some bruising. Concerned about the bruising, the mother took the child to the family doctor and called the Society.
[16] The Society investigated. The child told the Society that she did not want to visit with her father, and when her mother told her that she had to visit with her father, her stomach would "flip, flop". When told about the bruising, the Society worker phoned the doctor, and the doctor confirmed that the child had come to his office complaining of soreness, and he observed minor bruising on the child.
[17] The Society contacted the father and recommended that access occur in a therapeutic setting. The father refused this suggestion and instead requested that the child be placed in his care.
[18] The police also attended at the March 11, 2012 access visit. According to the mother, the child was dragged by the father and by the police into the father's car. The mother told the Society that she was concerned that the way access was being enforced was harmful to D.M.
[19] On March 15, 2012, the parents were advised that the Society would be initiating a court application and would be recommending that D.M. be placed in her mother's care subject to a supervision order with access to temporarily occur through the Society's Saturday Access program.
[20] On March 24, 2012, the father phoned the worker from his access visit and left a voice message. The father later emailed the worker multiple recordings as he had been audio-taping the visit, and throughout the recording, D.M. could be heard crying and her father could be heard asking her what was wrong. At one point in the recording, the father referred to D.M.'s crying as "fake crying."
[21] On March 31, 2012, during an access visit, the father left three messages for the worker, and during those calls, D.M. could be heard screaming and crying.
[22] The Society commenced the protection application on April 4, 2012 alleging that D.M. was at risk of physical and emotional harm because D.M. was being forced to exercise access with her father against her will.
[23] Since the date of the application, she has refused to exercise access with her father.
[24] Throughout the course of this proceeding, the Society has made numerous efforts to facilitate access between D.M. and her father. Not only has the child refused to visit with her father, she has refused to engage in any family counselling with her father or in any reintegration counselling with him.
[25] The Society arranged to have the child assessed at the Willow Centre. That report was provided to the society in September, 2012. The report was coauthored by Carol Jane Parker, and Dr. Rex Collins. The report recommends that "a well-structured, emotionally supportive foster home or residential treatment centre should perhaps be considered at least until the assessment of her parents has been completed and a helpful parenting plan can be agreed to and supported." The report makes this rather extreme recommendation because "As the status quo and the ongoing conflict between her parents has clearly not been helpful to D.M. and, as a result, she is at considerable risk of underachieving, withdrawing more into fantasy and not being able to function or problem solve without ongoing support, there is little the Society can do to help her in her present circumstances." The Society did not follow this recommendation as their assessment of the child's functioning did not accord with the observations contained in the report and they had reached the conclusion that the mother was working with the Society and supporting the father in his attempts to obtain access to D.M.
[26] For almost two years, D.M. attended at the Hincks Delcrest Centre for play therapy. This therapy was discontinued at the child's request with the consent of the treatment provider.
[27] The Society remained in touch with the child and her mother and visited them on a regular basis. The worker brought messages and gifts from the father. The child accepted the gifts but never communicated with her father of thanked him for his gifts. The Society provided information to the father about D.M. including photos and report cards.
[28] The Society facilitated family mediation and settlement discussions between the parents. D.M. refused to participate in these discussions.
[29] In November 2014, the Society told the child that the matter was to be back in court in January 2015. D.M.'s reaction was one of surprise. D.M. told the worker that "she had no intention of ever resuming a relationship with her father." When the mother voiced concerns about D.M. carrying around all that anger and hatred, the worker reported that D.M. responded by stating that, "she only gets upset when she thinks about it and remembers her father abusing her."
[30] D.M. is thriving in her mother's care. She is now in a gifted class and is adjusting very well according to her teacher. She is a straight A student. She has many interests outside school. She is involved with Girl Guides, a chess club, and will be registering for S[…] again this year. She reportedly has made new friends at her school and is still socializing with her friends from her previous school. She says she is happy in her mother's care.
Issues
[31] This case raises two issues:
The motion record contains both direct and hearsay evidence. In the circumstances, does the evidence as a whole provide a sufficient evidentiary base on which to found the claims set out in this summary judgment motion?
Is this an appropriate case for a summary judgment motion?
The Law
[32] Rule 16 of the Family Law Rules generally sets out a road map to be followed in the bringing of a summary judgment motion. The pertinent portions of rule 16 as they relate to this case read as follows:
16(1) When available — 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.
16(2) Available in any case except Divorce — 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.
16(3) Divorce claim — (not applicable)
16(4) Evidence Required — 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.
16(4.1) Evidence of Responding Party — 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.
16(5) Evidence from Personal Knowledge — 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.
16(6) No issue for trial — If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
16(7) Only issue amount of entitlement — not applicable
16(8) Only issue question of law — not applicable
16(9) Order Giving Directions — If the court does not make a final order, or makes an order for a trial of an issue, the court may also:
(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise to prevent injustice);
(b) give directions; and
(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure).
16(10) Costs of unsuccessful Motion — If the party who make the motion has no success on the motion, the court shall decide the amount of the other party's costs of the motion on a full recovery basis and order the party who makes the motion to pay them immediately, unless the motion was justified, although unsuccessful.
16(11) Costs — Bad faith — Not applicable
16(12) Motion for Summary Decision on Legal issue — not applicable
[33] Currently, the role of the judge under Rule 16 is limited in scope. In Children's Aid Society of Toronto and K.T., I considered the role of the judge in summary judgment motions, and I wrote:
The role of a judge on a summary judgment motion is an important one, but is limited in scope. It is not for the judge at this stage to find facts, weigh evidence or draw factual conclusions once he finds that a genuine issue for trial exists. These are all functions reserved to the trial judge. However, the judge is carefully to assess the threshold issue of whether there exists a genuine issue as to material facts requiring a trial. See Aguonie v. Galion Solid Waste Material Inc.. In determining this threshold issue, the court must review the evidentiary record carefully and give it a good hard look. At this stage, mere bare denials or self-serving affidavits without detailed facts and supporting affidavits are not sufficient to raise a triable issue. See Guarantee Co. of North America v. Gordon Capital Corp., supra.
[34] A summary judgment must be granted if a court finds on the evidence that is capable of being relied upon that there is no genuine issue of fact requiring a trial for its resolution. See Ungerman Ltd. v. Galanis. The onus is on the party requesting that the matter proceed by way of summary judgment to show there is no genuine issue for trial. See Children's Aid Society of Hamilton v. M.N. and H.S.N..
[35] The relationship between a genuine issue for trial and a material fact was articulated by Associate Chief Justice John W. Morden in Irving Ungerman Ltd v. Galanis, supra, at page 550 [O.R.] when he wrote:
If a fact is not material to an action, in the sense that the result of the proceeding does not turn on its existence or non-existence, then it cannot relate to a "genuine issue for trial."
[36] A judge hearing a summary judgment motion must give the case a good hard look and consider all the "disputed facts" with a view to determining whether those disputed facts are material to the action. If the judge decides that the facts in dispute are not material facts, i.e. nothing turns on them, it is not only unnecessary for the court to hear evidence to resolve the non-material disputed facts, a court should not do so, but should make a final order resolving the matter. (Rule 16(6).)
[37] It is my understanding that consideration had been given to expanding the adjudicative powers of the judge under rule 16 to bring them in line with the powers set out in Rule 20 of the Rules of Civil Procedure, but the Family Law Rules committee decided to delay any decision to do so pending release of the Hyrniak v. Maudlin, 2014 SCC 7 decision by the Supreme Court of Canada. After the decision was released, with its ringing endorsement of rule 20 as a legitimate alternative to the full trial in appropriate circumstance, the Family Law Rules committee began making plans to amend Rule 16.
[38] Although the Hyrniak v. Maudlin case supra was decided in the context of a civil (non-family) summary judgment motion, Justice Karakatsanis made comments of general application. In paragraph 5 she wrote, "….I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claim". It is my opinion that her comments about the legitimate role of summary judgment motions in the adjudication process signal a significant and substantial shift in the way summary judgment rules in general and our Rule 16 (even without further amendment), will be viewed going forward.
[39] In Hyrniak v. Maudlin, supra, Justice Karakatsanis, S.C.J. wrote about a need for a cultural shift away from the conventional trial towards more timely, affordable and proportional procedures tailored to the needs of the particular case. She noted that summary judgment provides one such opportunity to increase access to justice. In paragraph 2, 3, 4, and 5, she wrote:
(2) Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize the new models of adjudication can be fair and just.
(3) Summary judgment motions provide one such opportunity...to increase access to justice.
(4) In interpreting these provisions, the Ontario Court of Appeal placed too high a premium on the "full appreciation" of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants. In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary finding of fact, apply the law to those facts, and is proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
(5) To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
[40] Justice Karakatsanis goes on to note in paragraph 47 of that judgment that summary judgment must be granted whenever there is no genuine issue requiring a trial, and that when determining whether there is a genuine issue requiring a trial, it is necessary to "focus upon the goals and principles that underlie whether to grant motions for summary judgment." She goes on to say that "such an approach allows the application of the rule to evolve organically, lest categories of cases be taken as rules or preconditions which may hinder the system's transformation by discouraging the use of summary judgment." Thus, the decision appears to add new considerations, not previously identified in the established case law, relating to the test for the granting of a summary judgment.
[41] Even without Rule 16 being amended, the Hyrniak judgment helped to inform my decision-making in this case. What I take from this judgment may be summarized as follows:
Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable timely and just adjudication of claims. (I take this comment to apply to all summary judgment rules, including our Rule 16.)
The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize the new models of adjudication can be fair and just.
Judges must actively manage the legal process in line with the principles of proportionality.
On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that he or she can fairly resolve the dispute without a trial. (paragraph 57 of the Hyrniak decision supra.)
There is no genuine issue requiring a trial if the judge is able to reach a fair and just determination on the merits on the evidence before him or her.
[42] In Hyrniak v. Mauldin, supra, Justice Karakatsanis notes that the proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure, because undue process and protracted trials with the unnecessary expense and delay associated with lengthy trials, can prevent the fair and just resolution of the dispute.
[43] In crown wardship cases, litigants often seek to have the matter determined through a trial because of the nature of the dispute and the interests involved. However, proportional justice dictates a differential response. This case involves a disposition at the lowest rung of the ladder of intervention allowed for under the Child and Family Services Act and, as such, if I find that this case is otherwise appropriate for a summary judgment disposition, given the interests and nature of the dispute in this case, a summary judgment disposition can be a proportional response.
[44] The new test for summary judgment may be more difficult to apply in the Child Welfare context than in ordinary civil proceedings. Currently, a judge orders a trial of an issue or dismisses the motion and allows the matter to proceed to trial if a genuine issue for trial is identified. Sometimes, under the current rule, it is unclear whether or not such a genuine issue exists and in those cases a judge will dismisses the motion for summary judgment in order to more carefully consider the identified issue. The nature of the dispute and the interests involved inform this decision.
[45] How a court will decide to use the enhanced adjudicative powers if Rule 16 is amended (assuming Rule 16 is amended to include such powers), when it is unclear whether a genuine issue for trial exists in a case involving significant intrusion by the state into the life of the family (such as is the case when crown wardship is sought), will depend on the facts of each case. It will also depend on a balancing by the judge of all the factors identified by Justice Karakatsanis in order to answer the harder question of whether the interest of justice require that such powers be exercised only at a trial.
Discussion and Analysis
(A) Nature and Quality of the Evidence
[46] The father requests that the court draw conclusions unfavourable to the Society and the mother for adducing hearsay evidence in support of the Society's claim for summary judgment. Counsel acknowledges that hearsay evidence may be admissible on the motion, but given that the evidence proffered is frequently second and third hand hearsay, she argued that the quality of the evidence is such that the court ought not to rely upon that evidence in making such an important decision. She urged the court to dismiss the motion for summary judgment and order that the matter proceed to a full trial.
[47] I note that the Family Law Rules allow for the admission of hearsay on the motion, but rule 16(5) reads that if a party provides hearsay evidence of a fact in dispute, a court may draw conclusions unfavourable to the party.
[48] Rule 16(5) speaks to "facts in dispute" and thus presumably a more relaxed standard for adducing uncontentious or uncontested facts to the court for its consideration is applicable.
[49] What is the standard for evaluating the sufficiency of the evidence on a summary judgment motion? Rule 16 allows for the admissibility of hearsay evidence but provides that a court may draw adverse inferences if evidence of a disputed fact comes from a person who does not have person knowledge of those facts.
[50] Summary judgments are not simply paper trials. Justice Karakatsanis (S.C.C.) in paragraph 57 of the Hyrniak v. Maudlin decision makes it clear that the evidence on the summary judgment motion need not be equivalent to that at trial. However, she notes that the evidence on the motion must be such that the judge hearing the motion is "confident that he or she can fairly resolve the dispute".
[51] On a summary judgment motion, a judge must evaluate the quality of the evidence. The established jurisprudence continues to be relevant in this regard. In order to have confidence that she can fairly resolve the dispute, it will still be important for the judge to analyze the issues in the case and identify what are the disputed facts and whether those facts are material to resolution of the matter.
[52] Clearly, not all facts need be proved to the same standard. Uncontested facts or non-material facts might be established through hearsay evidence. However, given the unique character of child protection proceedings, the quality of the evidence proffered to prove a material fact (whether contested or not) must be carefully scrutinized, and a court should generally demand evidence that is solid, credible and, in most cases, from first-hand knowledge. The party seeking the summary disposition must meet the onus of establishing that there are no genuine issues requiring a trial.
[53] In deciding whether I can be confident that I can fairly resolve this dispute on the evidence before me, I have analyzed the case for the Society and respondents and have attempted to isolate the "specific facts" each party has put forward in an attempt to show that there either is, or is not, a genuine issue requiring a trial.
[54] In that process I have identified the following undisputed material facts:
In 2011 and 2012 the child was refusing to willingly go with the father for access. In the fall of 2011 and again in January 2012, the court, believing that the child's refusal arose from parental alienation caused by the words and actions of the mother, made an order that the police actively enforce access. The father, on at least five occasions, used the order to require police assistance in enforcing his access right, including one time when the police actually assisted him in carrying a protesting D.M. to his car. On that occasion, D.M. was bruised and complained of soreness.
Since the protection application was commenced in April 2012, the child has not communicated directly with her father nor has she visited with him.
The child has refused to attend for family counselling with her father or reunification counselling with her father.
The child has expressed a wish not to visit with her father.
The child is doing well in school and in the community and is well settled in the care of her mother.
The child is now 12 years old.
[55] As these facts are not contested, in the circumstances of this case, I am satisfied that the court might confidently rely on the evidence in reaching a decision, even if such evidence arises partly from hearsay.
[56] For example, an important material fact in this case proffered by the Society to prove that the child is a risk of harm under Section 37(2)(b) relates to the fact that on least one occasion the child came back bruised from an access visit.
[57] The evidence in support of this contention was a mixture of direct and hearsay evidence. The mother provided direct evidence when she swore that she saw the child being forced by the police into the father's car at the access exchange point (not denied by the father) and, when the child returned from the visit, she saw bruising and the child complained of soreness. The mother put in her affidavit that she took the child to the doctor the next day.
[58] The Society filed an affidavit that contained hearsay evidence on this point. Family Service worker Kristen Chambers swore that the Society's records contain information that the child's doctor had phoned the Society the day he examined D.M. and reported to intake worker John Isaacs, that he had found a bruise on D.M. left knee, right ankle, right index finger and her right shoulder was tender to the touch. The next day the affiant, Kristen Chambers, swore that she personally telephoned the doctor who confirmed the injuries.
[59] The information from the doctor is clearly hearsay. However, I have found that the evidence does have hallmarks of reliability sufficient for the court to be confident in relying on its trustworthiness. The reasons are as follows: the hearsay evidence as to what the doctor saw was consistent with the mother's evidence, the evidence of the child's injuries originally came to the Society's attention as a result of call from the family doctor who examined the child shortly after the child returned from the access visit, and the social worker actually phoned the doctor and spoke to him and confirmed the injuries.
[60] I find the hearsay evidence of the doctor as to the existence of bruising on the child compelling and it is a piece of evidence I can confidently rely upon in reaching my decision.
[61] The comments made by the child expressing a wish not to have contact with her father are not hearsay, but rather are admissible as state of mind evidence.
[62] The father has set forth facts that are disputed to show that there is a genuine issue for trial. The disputed facts he relies upon to establish the need for a trial relate to why the child is refusing all contact with him and the fact that such refusal of access, if not reversed, will have detrimental effects on her well-being now and in the future. Unless I find these disputed facts are material to my decision making, there is no need for me to evaluate the quality of the evidence presented by the various parties on these issues or to hear evidence to find these facts.
(B) Is There a Triable Issue in This Case?
[63] It is the father's position that this protection application should be sent to trial. He identifies the issue of why the child is refusing access to him (parental alienation) and the possibility of future emotional harm resulting from the child's refusal to exercise access to her father as triable issues.
[64] It is clear that the 12 year old child in this case does not want to visit with her father. She has refused all access for three years. The father alleges that the child is refusing all contact because her mother has alienated the child from him by her actions and words. He seeks a trial to prove these points.
[65] The mother denies that the child is refusing access because she has alienated the child from him. The Society and the mother contend that they have tried to convince the child to see her father and to enter into counseling with him, but the child has refused, saying she does not want to see him because he hurt her and he is not sorry for doing so.
[66] As well, the father contends that if access is not recommenced, D.M. will suffer emotional harm in the future. It is the father's position that there is reliable psychological evidence to this effect which is being ignored by the Society.
[67] The Society and the mother contend that the child is doing very well academically and socially and is well settled in her mother's home.
[68] The father urges the court to have a full hearing on the reason why the child is in need of protection as this finding of fact will inform which dispositional order would be in D.M. best interest.
[69] According to the Society and the mother, time has passed and all reasonable efforts to restart access have been made and there is no practical way to restart access at this time or in the foreseeable future without resorting to more physical force.
[70] On the facts of this case, I am not satisfied that anything turns on why this 12 year old child is refusing access to her father at this time. The refusal has continued for almost three years notwithstanding many efforts by the Society and the parents to facilitate access.
[71] Even if I were to decide, after a trial, that the child was refusing access because the mother had by her words and actions alienated the child from her father, the same result would ensue. Based on the established material facts, I would be ordering that access be in accordance with the child's wishes. I would not be making an order that would allow the father to exercise access by force, nor would I be ordering the police to actively enforce my access order. Further, I would not be removing the child from her mother with whom she is well settled and placing her into the care of her father whom she has refused to have contact with for the last three years.
[72] Similarly, even if I were satisfied after a trial that a poor relationship with the father would hamper the child's future opportunities to form lasting relationships, I would not make a treatment order because, given the child's resistance to therapy, such would be an empty and futile gesture.
[73] As the result of the proceeding does not turn on the existence or non-existence of the disputed facts identified by the father, these disputed facts do not give rise to a genuine issue requiring a trial. In the words of Justice Pazaratz in paragraph 43 of Children's Aid Society of Niagara Region v. S.C., "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."
(C) Finding
[74] On the facts I have found, I am satisfied that D.M. is a child in need of protection under section 37(2)(b)(i) and section 37(2)(g) of the Child and Family Services Act.
[75] I find that D.M. was forced to exercise access with her father against her will, and, on at least one occasion, she suffered bruising and soreness caused most likely by the police when her father enforced his access right. I find that if the forced access had continued, there was a risk that D.M. would likely suffer physical harm given her active resistance to access and her father's determination to exercise his right to access even by force.
[76] As well, I find that this enforced access was very upsetting to the child. If allowed to continue, I am satisfied there would be a risk that the child would be likely to suffer emotional harm.
(D) Disposition
[77] For virtually the entire life of D.M., her parents have been before the courts arguing about her. It is overtime that this litigation should end.
[78] Although I am satisfied that the father loves the child, and that he sincerely wants to see her and be involved in her life, I will not be ordering access or therapy.
[79] As I indicated earlier, on the facts of this case, there is no realistic possibility of an outcome other than that as sought by the applicant Society.
[80] In the result, I order:
1. Pursuant to section 57.1 of the Child and Family Services Act, I am terminating the order of Justice Brownstone dated January 23, 2012 in its entirety, and substituting the following order:
(a) The mother, O.G. shall have sole custody of the child, D.M., born […], 2003.
(b) The father, T.A.I. shall have access to D.M. in accordance with her wishes.
(c) The mother, O.G. shall be entitled to obtain a Canadian passport, health card, and any other relevant document for D.M. without the consent of the father, T.A.I.
(d) The mother may remove the child from the jurisdiction for vacation purposes only, without the consent of the father, T.A.I.
(e) The father shall set up an email account and advise the mother of the email address. So long as the father maintains an active account, the mother shall advise the father of the child's progress and travel plans. The information sent by the mother to the father may be edited to provide only non-identifying information i.e. as to the name of the school, the doctor, or actual flight numbers when traveling. The mother shall deliver the father's messages to the child unless, in her opinion, the delivery of the message would be harmful to the child.
(f) The father shall not bring a motion to vary the custody or access provisions of this order without leave of the court brought on notice to the mother.
[81] I would like to thank counsel for their assistance in this matter.
Released: March 6, 2015
Signed: Justice P. J. Jones