WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 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:

[1] . . .

[2] (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 File and Parties

Court File No.: C80653/15

Date: 2016-01-18

ONTARIO COURT OF JUSTICE

BETWEEN:

CHILDREN'S AID SOCIETY OF TORONTO

SIMON FISCH, for the APPLICANT

APPLICANT

- and -

S.D., M.M. AND K.M.

THE RESPONDENTS, S.D. AND K.M. NOTED IN DEFAULT; THE RESPONDENT M.M. ACTING IN PERSON

RESPONDENTS

Counsel:

NANCY CHAVES, agent for VEENA POHANI, on behalf of THE OFFICE OF THE CHILDREN'S LAWYER, for the child.

GIA WILLIAMS, for THE CHILDREN'S AID SOCIETY FOR THE REGIONAL MUNICIPALITY OF PEEL, a party affected by this motion

Heard: January 12, 2016

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The Children's Aid Society of Toronto (the society) has brought two motions within a protection application. It has moved for summary judgment for a finding that M., who is 15 years old (the child), is in need of protection pursuant to clause 37(2)(i) of the Child and Family Services Act (the Act). If this order is made, it seeks an order that the case be transferred to the Ontario Court of Justice in Brampton to determine what disposition is in the child's best interests.

[2] The respondent S.D. is the mother of the child. She has not participated in this case and was noted in default.

[3] The respondent K.M. is the stepmother of the child. She has attended at court throughout this case but has not filed an Answer/Plan of Care. She was also noted in default.

[4] The respondent M.M. (the father) is the child's father. He has filed an Answer/Plan of Care. He asked the court to not only dismiss the society's motion, but to dismiss its protection application. He also opposes the transfer of the case to Brampton.

[5] The child took no position on the motions.

[6] The Children's Aid Society for the Regional Municipality of Peel (Peel) opposes the society's request to transfer this case to the Ontario Court of Justice in Brampton.

Part Two – Summary Judgment Motion

2.1 Legal Considerations

[7] Rule 16 of the Family Law Rules permits a party to make a motion for summary judgment. The following sub-rules in rule 16 are relevant to this case:

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.

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 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.

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.

[8] Subrule 16(6) is mandatory. If the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[9] 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 society to show that there is no genuine issue for trial. Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ) per Gordon J.

[10] No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant. See: Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (SCJ).

2.2 Material Facts Not in Dispute

[11] The following are the material facts that were not disputed by the father or were only baldly denied by him.

[12] The child has been residing with the father in Canada since he has been 10 years old. The child had previously lived in Jamaica.

[13] The mother resides in Jamaica. She has not presented a plan for the child.[^1]

[14] On April 13, 2015, the society was contacted by the child's school. The child alleged that he was being inappropriately physically disciplined in the father's home and was afraid to return there. The child reported that the father had been hitting him and had recently punched him in the head.

[15] The child also made these disclosures to the society and to the Toronto police.

[16] The child was apprehended by the society on April 13, 2015.

[17] The father was charged with assaulting the child and threatening death on August 13, 2015. His criminal release terms restrict him from having any direct or indirect contact, by any physical, electronic or other means with the child, except with the approval of the society.

[18] The father's criminal charges remain outstanding.

[19] On April 17, 2015, Justice Carolyn Jones placed the child in the temporary care of the society.

[20] The child has remained in the care of the society.

[21] The child has refused to have any contact with the father.

[22] The father has not asked to see the child.

[23] The father denies the child's allegations of abuse. It is important to emphasize that the court is not making a finding that any physical abuse actually occurred, as that is a material fact in dispute.

[24] The child has been involved in criminal behaviour (including charges of robbery) both before and after his apprehension.

[25] The relationship between the society and the father is very poor.

[26] In his Answer/Plan of Care, the father proposes to send the child back to Jamaica once the child's criminal matters are resolved.

2.3 Finding in Need of Protection and Father's Motion to Dismiss Protection Application

[27] The society seeks a finding that the child is in need of protection pursuant to clause 37(2)(i) of the Act. This clause reads as follows:

Child in need of protection

(2) A child is in need of protection where,

(i) the child has been abandoned, the child's parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child's care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child's care and custody;

[28] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties, when determining whether a child is in need of protection. See: Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., 2001 O.J. No. 5754 (SCJ – Family Court).

[29] The evidence is clear that there is no genuine issue for trial that the child is in need of protection pursuant to clause 37(2)(i) of the Act.

[30] The father is unavailable to exercise his custodial rights over the child. The father's criminal release conditions and the refusal of the child to have any contact with him prevent this. The father is not even proposing the return of the child to his care and has not asked to see the child. He proposes that the child be sent to Jamaica. No specific kin plan has been proposed by the father.

[31] Without making any findings about the underlying cause, the evidence indicates that the relationship between the father and the child is conflicted and seriously damaged. No steps have been taken by the father to repair this relationship.[^2]

[32] As there is no triable issue, the society's summary judgment motion for a finding that the child in need of protection is granted.

[33] The child has engaged in criminal and destructive behaviour that places both him and others at risk of harm. The society's continued involvement with the child is imperative. The father's request to dismiss the protection application is dismissed.

Part Three – Transfer Motion

3.1 Positions of the Parties

[34] The society submits that there is a preponderance of convenience to transfer the case to Brampton.

[35] The father opposes the transfer motion, submitting that it will delay the resolution of the case.

[36] Peel opposes the motion, submitting that there is not a preponderance of convenience to transfer the case to Brampton and that such a transfer is not in the child's best interests.

3.2 Legal Considerations

[37] I reviewed the legal considerations for a court on a transfer motion that are set out in paragraphs 8-16 of Children's Aid Society of Toronto v. A.T., 2010 ONCJ 456, [2010] O.J. No. 4423 (OCJ) as follows:

3: THE LEGAL TEST

8 The test to determine whether a child protection proceeding should be transferred to another territorial jurisdiction is set out in subsection 48(3) of the Act. Territorial jurisdiction is defined in subsection 48(1) of the Act as a children aid's society's territorial jurisdiction. Subsection 48(3) reads as follows:

(3) Transfer of proceeding. -- Where the court is satisfied at any stage of a proceeding under this Part that there is a preponderance of convenience in favour of conducting it in another territorial jurisdiction, the court may order that the proceeding be transferred to that other territorial jurisdiction and be continued as if it had been commenced there.

9 "Preponderance" is defined in Black's Law Dictionary, 4th ed., (St. Paul, Minn.: West Publishing Co., 1951), as follows:

Greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability.

10 However, subrule 5(8) of the Family Law Rules, O. Reg. 114/99 [as amended], provides that the test to determine whether a case should be transferred to another municipality is that it must be "substantially more convenient" to deal with the case there. This is a higher test to meet than a preponderance of convenience. This subrule reads as follows:

(8) Transfer to another municipality. -- If it is substantially more convenient to deal with a case or any step in the case in another municipality, the court may, on motion, order that the case or step be transferred there.

11 The motion in this case is to move the proceeding both to another territorial jurisdiction and to another municipality. Which standard should apply: "preponderance of convenience" under subsection 48(3) of the Act or "substantially more convenient" under subrule 5(8)?

12 In so far as possible, courts seek to avoid conflict between statutory and regulatory provisions and to give effect to both. Where conflict is unavoidable, normally the statutory provision prevails. See Ruth Sullivan: Sullivan and Driedger on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Canada Inc., 2008), at page 341. This priority appears to be contemplated by subrule 5(9) of the rules, which sets out specific service requirements for a motion to change the place for a child protection case under subsection 48(3) of the Act. This provision does not apply to a motion to change the municipality for a case under subrule 5(8).

13 Subrule 5(8) would apply where there is no conflict, that is, where the motion is to transfer the case to another municipality which is in the same territorial jurisdiction of a society. This would occur where a society serves several municipalities.

14 In this case, subsection 48(3) of the Act, which is a statutory provision, takes priority to subrule 5(8), which is a regulation under an Act. The standard that I will apply is preponderance of convenience.

15 The onus to establish that there is a preponderance of convenience to hear the proceeding in another jurisdiction is on the party seeking the transfer. See Children's Aid Society of Prescott-Russell v. B.B. and M.B., [1991] O.J. No. 2540 (Ont. Gen. Div.).

16 Any assessment of the "preponderance of convenience" is to be weighed considering the best interests of the child and not necessarily the wishes or convenience of any of the parties. See Children's Aid Society of Halton Region v. Katherine C., 111 A.C.W.S. (3d) 510, [2002] O.J. No. 382, 2002 CarswellOnt 317 (Ont. C.J.), where the court found that the transfer request, which was made on the eve of trial, would unduly delay the case and was contrary to the child's best interests.

3.3 Factors Supporting the Society's Position

[38] The following factors support the society's transfer motion:

a) The child has resided in Brampton since he was apprehended in April of 2015.

b) The child goes to school in Brampton.

c) The child attends counseling in Brampton.

d) The father and K.M. presently reside together in Brampton.

e) Any services that the child obtains will likely be located in Brampton.

f) While the father has not engaged to date with services, it is likely that if he engaged in services to repair his relationship with the child, those services would be located in Brampton.

g) Evidence on a disposition hearing from non-society witnesses will primarily come from service providers in Brampton. It would be more convenient for such witnesses to attend court in Brampton.

h) While the child has chosen not to attend court to date, he is entitled to do so. It would be more convenient for him to attend court in Brampton.

[39] Notwithstanding these factors, the society did not establish that the preponderance of convenience or the child's best interests support transferring the case to Brampton at this time for the following reasons:

a) The issue of disposition remains outstanding and appears to be uncomplicated. Most of the evidence about disposition will come from the society workers who have investigated the case, worked with the child and have attempted to work with the family. Child protection agencies in a disposition proceeding should lead evidence about the services it has offered to the child and the family before and after apprehension[^3] and to demonstrate what efforts it has made to investigate community or family plans.[^4] This evidence will come from workers in Toronto. The society is better positioned than Peel to present the evidence required at a disposition hearing.

b) There would be some delay if this case was transferred to Peel. Peel would need to conduct its own investigation of the matter, assess the steps to take and make efforts to establish a relationship with the family.

c) The case has been actively case managed in Toronto. The case can be moved forward in a timely manner. There would be some delay if a new case management process was started in Brampton. The statutory timelines in the Act require the court to determine the child's future in a timely manner. At this time, this court is better positioned than the court in Brampton to accomplish this.

d) The child has an established relationship with the society. He is a child who requires stability. It is not in his best interests to transfer child protection agencies at this point.

e) At this point, Peel has had nominal involvement with this case.

f) The distance between the court in Brampton and this court is not significant and should not unduly inconvenience any witnesses required at a trial from Brampton.[^5]

g) The father has made it clear that he does not want to deal with another child protection agency. He walked out on a meeting organized by the society to discuss planning for the child because a worker from Peel was present. At this point, the evidence indicates that he will not cooperate with Peel.[^6]

[40] The transfer of the case to Brampton can be revisited at the status review stage. The longer the father and child remain in Brampton, the more compelling the society's argument for a transfer will become. Although not in evidence, the father advised the court that he intends to move back to Toronto at the end of his lease in a few months, as he has lost his employment in Brampton. The father's residence at the material time might inform the society's position as to whether to bring another transfer motion.

Part Four – Conclusion

[41] The following orders shall be made:

a) The father's motion to dismiss the protection application is dismissed.

b) Statutory findings for the child are made, pursuant to subsection 47(2) of the Act, as set out in paragraph 1 of the affidavit of Tina Sheppard, sworn on September 30, 2015.[^7]

c) The society's motion for summary judgment is granted, as there is no triable issue.

d) The child is found in need of protection pursuant to clause 37(2)(i) of the Act.

e) The society's motion to transfer the case to the Ontario Court of Justice in Brampton is dismissed.

f) The father's motion to dismiss the protection application is dismissed.

g) The case is adjourned until February 11, 2016 at 10:00 a.m. for a case conference. The parties are expected to make submissions on that date about the process to finalize the disposition issue.

[42] The court wishes to emphasize to the father that it has not made any findings about his parenting ability on this motion. It is also not assessing blame for the child being in care. That is not necessary or helpful at this time.

[43] The issue of final disposition (where the child will live and on what terms) remains outstanding. It would be helpful to the court if the father could submit a specific plan for the court to consider when deciding disposition.[^8]

[44] The court has already urged the parties to work collaboratively to address the child's needs. The child is struggling and needs the adults in his life to work respectfully and constructively. Due to the present trust issues, it might be helpful to receive the assistance of an independent third party. Child protection mediation is recommended in this case.

[45] The court thanks the participants for their submissions.

Released: January 18, 2016

Justice S.B. Sherr

[^1]: The society evidence is that she has told workers that she wants the child to remain in care. The father disputes this. However, the mother has not come forward with any plan at this point.

[^2]: For instance, the father has not engaged in personal counseling to develop a better understanding about the breakdown of the relationship with the child and how to repair this.

[^3]: Subsections 15(3) and 57(2) of the Act.

[^4]: Subsection 57(4) of the Act.

[^5]: These witnesses won't have to attend court in Toronto if the evidence is sufficient to justify a summary judgment motion on the issue of disposition.

[^6]: The father also does not trust the Children's Aid Society of Toronto. He accuses the society of numerous incidents of perceived misconduct, including perjury. When the court asked him if it would be helpful to start fresh with a new agency, he did not feel it would be, as he felt it would be "more of the same".

[^7]: This affidavit is contained in Tab 9, Volume 1 of the continuing motion record.

[^8]: The father can do this by serving and filing an Amended Answer/Plan of Care.