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 45(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

Ontario Court of Justice

Date: May 6, 2016

Court File No.: Toronto CFO-13-10089-00B3

Parties

Between:

Jewish Family and Child Services of Greater Toronto, Applicant,

— AND —

H.R.G., Respondent,

— AND —

J.S.C., Respondent.

Before the Court

Before: Justice M. L. Cohen

Heard on: February 11, 2016

Reasons for Judgment released on: May 6, 2016

Counsel

• Haley Gaber Katz — counsel for the applicant society
• Ryan Gillissie — counsel for the respondent mother
• Gesta A. Abols — counsel for the respondent father

Decision

COHEN, M. L. J.:

[1] This is my ruling on the society's summary judgment motion in an amended protection application concerning L.B.C., born […], 2009. The respondent H.R.G. is the child's mother, and the respondent J.S.C. is her father.

[2] This motion is about disposition only. On March 11, 2014, on consent of the parties, Justice Kararynych found the child to be in need of protection pursuant to sections 37(2)(b)(i) and (ii) of the Act pursuant to a Statement of Agreed Facts. The Society now seeks an order on summary judgment placing the child in the care and custody of her father pursuant to section 57.1 of the Act, and granting access to the mother, largely in accordance with the current status quo: every second weekend, weekly Wednesday overnights, and other times as agreed between the parents.

[3] The society also seeks incidental relief on summary judgment, including orders authorizing the child's removal from the jurisdiction by the father for temporary vacation purposes without the mother's consent, and permitting the father to obtain government and other necessary documentation without the mother's consent. This relief was previously ordered by Justice Katarynych on a temporary basis on December 9, 2013. The society also seeks an order authorizing the mother's removal of the child from the jurisdiction for temporary vacation purposes, subject to the father's consent, which is not to be unreasonably withheld.

[4] The father supports the Society's position on the motion.

[5] The mother opposes the summary judgment motion. She submits that there is a genuine issue for trial on the question of the form of the custody order, to wit whether a parenting order that permits her to participate in decision-making is in the best interests of the child. She asks that the motion for summary judgment be dismissed, and that the matter proceed to trial.

Background Facts

[6] The protection issues in this case arose from the parents' lengthy history of drug and alcohol abuse while in a care-giving role. The parents have been separated since January, 2012. The mother was brought to hospital on November 30, 2012, as a result of a heroin overdose. The father suffered a similar incident in January, 2013, involving heroin and cocaine.

[7] On January 30, 2013, the Society commenced a protection application. On February 5, 2013, the child was placed in the temporary care of the mother subject to society supervision, with access to father at the discretion of the society. The child continued to reside in the mother's care until August, 2013. During this period there was evidence the mother continued to abuse drugs and alcohol, and was inconsistent in her attendance at drug treatment programs. On August 22, 2013, the child was apprehended from her mother's care. Shortly thereafter the mother acknowledged daily use of cocaine and alcohol.

[8] In March, 2013, the father was arrested on charges of break and enter, theft, and possession of stolen property, in relation to an incident at the mother's home. Following this incident, the father entered into a residential treatment and aftercare program.

[9] There is no evidence that he has been using drugs since April, 2013. In September, 2013, the parties consented to an order placing the child in the father's temporary care.

[10] The child has done very well in the father's care. She attends school regularly and there are no behavioural concerns. She has many friends at school and in her community. Reports from the society workers, her pediatrician, and staff at the school she attends, are uniformly positive.

[11] According to the society, the child appears happy and well cared for in her father's custody. He is observed to be attentive and loving. The father has been cooperative with the society. There is no evidence of inappropriate decision-making in matters affecting the child.

[12] The mother has struggled with her recovery. Subsequent to the apprehension, she enrolled in a number of drug treatment programs, however her attendance was inconsistent, as was her place of residence. The mother resided in various places, including Ottawa and Nova Scotia, and only returned to reside in Toronto in May or June, 2015. At various times the mother's access was suspended, however in 2015 the situation improved. By May, 2015, the mother's situation had stabilized sufficiently for the child to have regular, unsupervised, and overnight visits with her mother.

[13] The mother currently exercises access on alternate weekends and one evening per week. The society does not identify any concerns in relation to these visits. The mother and child relationship is loving, warm and affectionate.

[14] Although the mother concedes much of the foregoing, she also raises certain concerns, which she argues support her claim for some form of co-parenting.

[15] The mother maintains, based on a photograph of the father with friends evidently taken at a bar, that the father is placing himself in a vulnerable situation by exposing himself to alcohol. She also suggests that the father's parenting is deficient because she has found the child's hair to be unclean, and her clothing sub-standard.

[16] The child was identified as Jewish in the Statement of Agreed Facts. The mother does not believe the father will properly foster the child's Jewish identity. The child is not enrolled in a Jewish school.

[17] In light of these concerns, the mother proposes a joint custody or parallel parenting regime on the summary judgment motion. This co-parenting proposal was only raised proximate to the motion and was not set out in the mother's Answer and Plan of Care. There is no "practical plan" before the court.

[18] There is minimal recent history of communication between the parties. The parties were prevented from communicating by the father's 2013 probation order, which expired in December, 2015. The father never sought to vary the non-communication term during the currency of the probation order. Since the expiry of the order, there has been minimal communication between the parties.

[19] The affidavits of each parent, filed late in the day on the summary judgment motion, evidence considerable disagreement between the parties about their ability to communicate with one another. While the mother maintains, in a fashion, that they are able communicate, the father strongly differs. They also differ markedly in their perceptions of historical events and issues regarding the child.

[20] There is no evidence of a history of co-parenting or effective communication and cooperation since separation.

Law of Summary Judgment

[21] This motion is brought pursuant to Rule 16 of the Family Law Rules. The relevant portions of Rule 16 provide 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 GENUINE 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.

POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

(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);

(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).

[22] In Hryniak v. Mauldin, [2014] 1 S.C.R. the court said:

[66] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness,

[68] While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action. This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate. There is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense. In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment, without engaging in the full inquiry delineated above.

[23] The evidence on the summary judgment motion need not be equivalent to that at trial, however it must be such that the judge hearing the motion is "confident that he or she can fairly resolve the dispute" (par. 57).

[24] The jurisprudence prior to Hryniak remains instructive. The fundamental question for the court on a summary judgment motion is whether there is a genuine issue about a material fact that requires a trial of the issue: Kallaba v. Bylykbashi, [2006] O.J. No. 545 (Ont. C.A.). The onus is on the party requesting summary judgment to establish that there is no genuine issue for trial. See: Children's Aid Society of Hamilton v. M.N. and H.S.N. In response, the opposing party must set out specific facts showing that there is a genuine issue for trial. Each party must put his or her best foot forward: Children's Aid Society of Toronto v. K.T., [2000] O.J. No. 4736 (Ont. C.J.).

[25] In accordance with Hryniak, the court's function at the first stage is not to resolve an issue of fact, but to determine whether there exists a genuine issue of material fact that requires a trial for its resolution. The summary judgment court must take a hard look at the merits of the case. Not every disputed fact or question of credibility gives rise to a genuine issue for trial.

[26] The motion judge must consider all the disputed facts with a view to determining whether those disputed facts are material. If the fact in dispute will not affect the outcome of the case, it has no bearing on the issue of whether there is a genuine issue for trial. If the judge decides that the facts in dispute are not material facts, it is not only unnecessary for the court to hear evidence to resolve the non-material disputed facts, but a court should not do so. The Court should make a final order resolving the matter: (Rule 16(6).)

[27] If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). This is the second stage in the roadmap set out in Hryniak. The judge may, at her discretion, use those powers, provided that their use is not against the interest of justice. As will be apparent, I have determined that based on the evidence before me I am able to fairly and justly decide this motion, without using the new fact-finding powers.

Analysis

[28] In the case at bar, the child has been found in need of protection. Section 57(1) of the Act provides that where a court finds that a child is in need of protection, it must be satisfied that intervention through a court order is necessary to protect the child in the future. There is no dispute on this issue and a trial is not required for its resolution. There is also no dispute that an order under section 57.1(1) would be in the child's best interests, and a trial is not required to resolve this issue.

[29] What is in dispute is whether an order should be made granting sole custody of the child to the father under section 57.1, or whether custody should be granted to the father and mother jointly by way of a joint or parallel parenting order, or an order imposing some joint decision-making on major issues. This question is to be determined based on the child's best interests, as defined in the Act. The access order is also to be determined based on the child's best interests.

[30] I turn then to the question of whether there is a genuine issue requiring trial on the question of a section 57.1 order of sole custody to the father, based solely on the evidence before me.

[31] I begin with material facts that are not in issue:

(a) It is not disputed that the child's life was significantly disrupted both before and after the apprehension as a result of the parents' substance abuse problems.

(b) It is not disputed that the child has been in the care of the father since September, 2013, without incident.

(c) There is no dispute that the father has been able to provide the child with a secure, stable and loving home.

(d) It is not disputed that the father has demonstrated an ability to meet the child's physical, mental and emotional needs appropriately. The mother herself deposes that the child "shows no outward signs of neglect", and that the father "continues to function at an appropriate level for L.B.C.."

[32] There is no evidence the father has abused drugs or alcohol since April, 2013.

[33] There is no evidence the father has obstructed or undermined the child's access to the mother.

[34] I find no evidence on this motion that the father's current consumption of alcohol is impacting the child or placing her at risk. The mother's concerns about the father's exposure to alcohol, are based on speculation and opinion, not fact.

[35] The mother's concerns about unclean hair and substandard clothing are based on a few observations. These limited observations do not in and of themselves, raise genuine issues of material fact which require a trial or other fact-finding process for resolution.

[36] Thus, on this motion I find no real challenge to the proposition that an order granting custody to the father is in the child's best interests. There is no genuine issue about a material fact that requires a trial of this issue.

[37] The real challenge is on the question of sole custody. Despite conceding that the father parents appropriately, the mother seeks an order for joint or parallel parenting, or an order requiring that she be consulted and allowed to participate in major decisions concerning the child's education and religious up-bringing. Specifically, she argues that this issue is triable because as a matter of the child's best interests, she is the parent better suited decide to these specific questions.

[38] Although there are disputed facts involved in this challenge, in accordance with the ruling in Hryniak, I must first determine if there is a genuine issue requiring trial based only on the evidence before me, without using the new fact-finding powers.

[39] The issues of religion and education are intertwined because the mother views it as in the child's best interests that the child have a Jewish education, and maintains that she is better qualified than the father to make decisions in this area.

[40] Here I note the following: On consent, the child was identified as Jewish in the Statement of Agreed Facts. The father has indicated he is willing to accommodate the child's religious identity. He has demonstrated he is able to make appropriate decisions about the child's education. The evidence is that since the spring of 2013, he has made appropriate decisions in all areas of the child's life, including education, and that the child is doing well.

[41] Furthermore, the religion/education issue was not raised in the motion materials until the mother's affidavit was filed in Court on the motion date. No motion was initiated on this issue since the father has had custody of the child. There is no evidence, other than the mother's views set out in her affidavit filed on the hearing, on the question of whether attending a Jewish school is or is not in the child's best interests.

[42] As Justice L'Heureux-Dube said in Young v. Young, [1993] 4 S.C.R. 3 (in dissent):

32. Custody means having the right to make educational and religious decisions affecting the child. 32 ... The need for continuity generally requires that the custodial parent have the autonomy to raise the child as he or she sees fit without interference with that authority by the state or the non-custodial parent, as it is the inability of the custodial parent to protect those interests sufficiently which poses the real threat to the welfare of the child. A custody award can thus be regarded as a matter of whose decisions to prefer, as opposed to which decisions to prefer.

33 ... Courts are not in a position, nor do they presume to be able, to make the necessary day-to-day decisions which affect the best interests of the child. That task must rest with the custodial parent, as he or she is the person best placed to assess the needs of the child in all its dimensions…

[43] I have already found, on a summary judgment basis that the child's best interest lie with an order of custody to the father. In this case there are substantial historical concerns which militate against the relief the mother seeks.

[44] The mother seeks to share or control decision-making. Although some courts have imposed joint custody, and "parallel parenting" regimes even in high conflict cases, I find the reasoning in Kaplanis apposite:

[11] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis.

[45] The father says he cannot communicate with the mother. There is no history of effective co-parenting. There is no history of effective communication between the parents. They were prevented from communicating for several years, and have had little communication since.

[46] This child has been found in need of protection. This case does not involve a private dispute. The child's life has been disrupted. Her parents suffered from serious drug addictions that almost lead to the death of both. Her mother was unavailable for a considerable period. She was apprehended and placed in care. Despite this troubled history, she is now in a stable home with her father and she is doing well. There has been enough disruption in this child's young life without exposure to the risks inherent in a complicated parenting arrangement.

[47] The child requires consistency, stability and security. The mother's process of recovery, while ongoing is relatively recent. She queries the father's recovery. The necessary communication inherent in a parallel parenting order, with its inevitable tensions and disagreements, could easily destabilize one or the other parent. Such destabilization puts the child at risk.

[48] Considering all these circumstances, I am satisfied that there is no genuine issue on the question of whether a co-parenting order is in the child's best interests that requires a trial for its resolution. Whether or not there is disagreement between the parties about some facts, those facts would not change the outcome of a trial. I find there is no triable issue on where the child's best interests lie: Children's Aid Society of Toronto v. R.H., 2016 ONCJ 181. Accordingly I do not find it necessary to use the expanded powers under Rule 16.

[49] The society has met its burden. Summary judgment will issue in accordance with the Notice of Motion. The father will have sole custody of the child.

[50] If I am wrong on the question of whether the stage one test is met, then in the alternative, I find that using the expanded fact finding powers is not against the interest of justice, and I find as follows:

[51] With regard to the issues regarding the father's instrumental care of the child (dirty hair, threadbare clothing), I find the mother's allegations either minimally probative or without foundation based on the uniform evidence of third parties that the child always appears clean, well-cared for and appropriately dressed.

[52] With regard to the incident regarding the probation officer, I find the mother's evidence is outweighed by the evidence of the third party witnesses, and is suggestive of animus on her part, despite her denials that she intended to jeopardize the father's successful completion of his probation order. The presence of animus is an additional reason why any form of joint parenting is contrary to the child's best interests.

[53] The parties do not agree on the question of whether they are able to communicate. They do not agree about whether the father is willing and able to foster the child's Jewish identity. Their historical evidence is conflicting. The current evidence is that the father is well able to address the child's needs. The father emphasizes his willingness to accommodate on this issue. Based on his attention to the child's best interests thus far, I accept that his statements are sincere. In view of these facts which are established, I do not find the conflicting facts in issue between the parents on historical matters raise genuine issues that require a trial for resolution.

[54] Finally, in light of my conclusions above, I find that the mother's access should continue in accordance with the status quo. The child should be returned on Sunday evening, to be ready for school the following day. The parties may agree between themselves on other or additional access.

[55] I do not have an evidentiary basis on which to adjudicate holiday times. These are not triable issues in the child protection proceedings. If the parties cannot negotiate the additional access through counsel, those issues can be brought before the court on an application under the Children's Law Reform Act. At this point the child's best interests favour the predictable access arrangements which are now in place.

[56] Thus: Summary judgment will be granted to the society. There will be an order under section 57.1 of the Act granting custody of the child to the father. Summary judgment will also be granted to the society on the question of access. There is also no triable issue on the question of access.

Order

[57] The following is ordered:

1. The Society's motion for summary judgment is granted on all issues;

2. The child, L.B.C., born […], 2009, shall be placed in the care and custody of her father, Mr. J.S.C., pursuant to s.57.1 of the Child and Family Services Act;

3. The child, L.B.C., born […], 2009 is entitled to travel outside Canada with her father, Mr. J.S.C., for vacation purposes. Mr. J.S.C. will provide at least two weeks' notice to Ms. H.R.G. and will advise her of the travel plans, including contact information for Mr. J.S.C.'s destination. Mr. J.S.C. is not required to obtain the consent of Ms. H.R.G. for this travel;

4. The child, L.B.C., born […], 2009 is entitled to travel outside Canada with her mother, Ms. H.R.G., for vacation purposes. Ms. H.R.G. will provide at least two weeks' notice to Mr. J.S.C. and will advise him of the travel plans, including contact information for Ms. H.R.G.'s destination. Ms. H.R.G. is required to obtain the consent of Mr. J.S.C. for this travel, which will not be unreasonably withheld;

5. J.S.C. shall be the sole signing authority for any documentation required for the child, L.B.C., born […], 2009, including identity information and passports. The mother shall not be required to consent to the issuing of such documentation;

6. The child L.B.C., born […], 2009, shall have access with her mother, H.R.G., as follows:

   (i) Every second weekend, pick up from school on Friday and return to Mr. J.S.C.'s home on Sundays at 5:00 p.m.;

   (ii) Every Wednesday evening, pick up from school and return to school on Thursday morning;

   (iii) Ms. H.R.G. shall have any additional access with L.B.C., born […], 2009, as arranged and agreed upon between Ms. H.R.G. and Mr. J.S.C.;

   (iv) H.R.G. shall have the right to make inquiries and is to be given information as to the health, education and welfare of L.B.C., born […], 2009, in accordance with Section 20(5) of the Children's Law Reform Act;

7. Jewish Child and Family Services is to be served with any Motion to Change this Order;

8. This Final Order with all of its terms shall be deemed to be an Order made under section 28 of the Children's Law Reform Act.

Released: May 6, 2016

Signed: Justice M. L. Cohen