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,
(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
Date: February 21, 2017
Court File No.: C30405/03
Ontario Court of Justice
In the Matter of an Amended Status Review Application for the Crown Wardship of G.C.A. born on […], 2002 and E.A., born on […], 2004, under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.
Parties
Between:
Children's Aid Society of Toronto
Sherri Smolkin, for the Applicant
Applicant
- and -
M. B.-M., M. B.-L. and A.C.
Barry Nussbaum, for the respondent, M. B.-M. Lance Carey Talbot, for the respondent, M. B.-L.
Respondents
The respondent, A.C., not appearing and noted in default
Lynn Bonhomme, for the children, on behalf of the Office of the Children's Lawyer
Hearing and Decision
Heard: February 13 and 15, 2017
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] The Children's Aid Society of Toronto (the society) has brought a motion for summary judgment, within its Status Review Application, seeking orders that G.C.A., age 14, and E.A., age 12 (the children), be made crown wards, with access to the respondents, M. B.-M. (the mother) and M. B.-L. (the maternal grandmother), in the discretion of the society, and in consideration of the children's wishes.
[2] The mother and maternal grandmother asked that the summary judgment motion be dismissed, submitting that there are genuine issues requiring a trial. They are asking that the children be placed in their joint care and custody. The mother, in the alternative, asks that the children be placed in the care of the maternal grandmother.
[3] Counsel for the children, from the Office of the Children's Lawyer, supported the society's motion with respect to E.A. She advised the court that E.A.'s views and preferences are to be a crown ward, with limited access to the mother and maternal grandmother. Counsel took a more nuanced position with respect to G.C.A. She indicated that G.C.A.'s views and preferences are to return to the care of the mother and maternal grandmother, but only if the court finds that they would comply with detailed terms of supervision that she set out in her factum. Lastly, counsel sought an order for sibling access.
[4] The respondent A.C. (the father) is the children's father. He did not file an Answer/Plan of Care and has not participated in this case. He was noted in default on February 2, 2017.
[5] The society relied on affidavits from its workers, two psychological assessments conducted on G.C.A and a Statement of Agreed Facts filed on April 27, 2016. The mother and maternal grandmother filed affidavits. Counsel for the children served a Request to Admit which was responded to by the mother and maternal grandmother.
[6] At the conclusion of submissions on February 13, 2017, the court ordered that oral evidence be presented, with time limits, pursuant to subrule 16(6.2) of the Family Law Rules.
[7] The mother and maternal grandmother were examined on February 15, 2017. The parties then made further submissions.
[8] The issues for this court to determine on the society's summary judgment motion are as follows:
a) Is there a genuine issue requiring a trial for a disposition for either child other than crown wardship?
b) If a crown wardship order is made, is there a genuine issue requiring a trial as to what access order should be made with respect to either child?
Part Two – Facts
[9] The facts that follow were either admitted by the mother and maternal grandmother or only baldly denied by them, or were facts relied upon by the court when it found the children to be in need of protection.
[10] The mother is 38 years old. She is presently unemployed. She testified that she has previously worked as a receptionist.
[11] The mother testified that she never lived with the father – they saw each other "on and off".
[12] The maternal grandmother is 76 years old. She deposed that she used to work as a teacher. She has three adult children, including the mother.
[13] The mother and maternal grandmother have always lived together. Presently, no one else is living with them.
[14] The children are the only children of the mother and the father.
[15] The family has been involved with the society for many years.
[16] G.C.A. was in society care from April 24, 2003 until May 20, 2005. He was found in need of protection on November 26, 2003, pursuant to clause 37(2)(b) of the Child and Family Services Act (the Act). This clause reads as follows:
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child
[17] G.C.A. had a Global Developmental Delay and Learning Disability. He was diagnosed with "Fail to Thrive". The court cited concerns about the seriousness of his medical condition and the likelihood that the family would not follow through with medical advice and required treatment. There were also concerns about the mother's reluctance to provide information and needing to be told things repeatedly. After a trial, on January 22, 2004, Justice Douglas Wilkins made an order making G.C.A. a society ward.
[18] The protection concerns at the time related to the family's inability to acknowledge and meet G.C.A.'s special needs.
[19] E.A. was apprehended by the society at birth, on April 7, 2004.
[20] On March 16, 2005, E.A. was found to be a child in need of protection pursuant to clause 37(2)(b) of the Act. She was placed in the care of the mother and father, subject to a supervision order.
[21] On May 20, 2005, G.C.A. was returned to the care of the mother and father under a supervision order.
[22] On February 22, 2006, the supervision orders were terminated.
[23] The society had two other file openings with the family - in 2011 and in October, 2013. These openings related to reports from G.C.A.'s schools about his behaviour. Both cases were closed after the respondents agreed to obtain services for him.
[24] The society commenced a Protection Application on June 2, 2014, seeking to place G.C.A. in the care of the mother and maternal grandmother, subject to terms of society supervision. G.C.A. had been suspended twice from school and the school had recommended that he attend an alternate school program. However this did not happen. G.C.A. did not attend school on a regular basis. The school also recommended that G.C.A. have a psycho-educational assessment due to his sexualized behaviour. The mother and maternal grandmother did not follow through on this recommendation either.
[25] On June 11, 2014, Justice Geraldine Waldman made a temporary supervision order placing G.C.A. in the care of the mother and maternal grandmother. The supervision order included terms that the mother and maternal grandmother permit the society to make scheduled and unscheduled visits to their home, provide proof that G.C.A. was completing the school curriculum and explore treatment for him.
[26] On October 3, 2014, Justice Waldman endorsed that the family needed to develop a strategy to meet G.C.A.'s needs. She expressed concern that G.C.A. was not in school. She wrote:
Nothing is happening to address the concerns. I need to see progress or child should be brought into care.
[27] G.C.A. returned to school from October 7, 2014 to November 4, 2014. However, he was removed from school as the mother and maternal grandmother wanted to change his school. He was out of school until December 1, 2014. The mother and maternal grandmother then refused to sign consents to allow the society to obtain information about G.C.A. from the new school.
[28] The mother and maternal grandmother did not attend at court on December 18, 2014. They had not filed Answers/Plans of Care and did not respond to a motion by the society for additional terms of supervision. They were noted in default and an additional supervision order was made requiring them to sign consents to release information as requested by the society and to communicate with collaterals and service providers involved with the family.
[29] On February 19, 2015, the society commenced a Protection Application regarding E.A.
[30] On February 25, 2015, Justice James Nevins found G.C.A. to be in need of protection pursuant to clause 37(2)(h) of the Act. This clause reads as follows:
(h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition;
[31] On the same day, Justice Nevins made a temporary supervision order regarding E.A., placing her in the care of the mother and maternal grandmother. Regarding G.C.A., he added temporary supervision terms. Included were terms requiring the mother and maternal grandmother to do the following:
a) Allow the society worker to attend the home for scheduled and unscheduled visits.
b) Allow the society worker to meet the children, in private, at home, in school and in the community.
c) Follow through with exploring assessment and treatment for G.C.A. around sexual behaviours, and social and emotional needs.
d) Work cooperatively with the school to address G.C.A.'s behavioural needs.
e) Ensure the children attend school every day.
f) Sign consents as requested by the society to permit it to speak to the children's schools.
g) Ensure the children are properly groomed with their skin, hair and clothes and be clean when they attend school and when they are in the community.
h) Provide the children with clothes bought by the society.
[32] On April 29, 2015, Justice Nevins noted the respondents in default on the Protection Application regarding E.A., and found her in need of protection pursuant to clause 37(2)(b) of the Act.
[33] Justice Nevins also made a temporary order that day placing the children in society care. Temporary access for the mother and maternal grandmother was ordered to be in the society's discretion.
[34] The children have remained in society care since that date.
[35] The children were found to be in need of protection because:
a) The mother and maternal grandmother were not complying with the court-ordered terms of supervision.
b) The mother and maternal grandmother did not appreciate G.C.A.'s special needs. He had significant behavioural issues, including sexualized behaviour.
c) The mother and maternal grandmother were not following up on services to address G.C.A.'s special needs.
d) G.C.A. had poor school attendance.
e) The mother and maternal grandmother had a poor relationship with the children's schools and were not following recommendations, such as obtaining a school social worker for G.C.A.
f) There were concerns about the condition of the family home and how safe it was for the children to reside there.
g) The children had poor hygiene and the mother and maternal grandmother were not properly addressing this.
h) The mother and maternal grandmother were not cooperating with the society.
i) The mother and maternal grandmother were not signing consents requested by the society.
j) The mother and maternal grandmother were denying the society access to the family home.
k) The children's needs were being neglected. In particular, E.A. had an untreated eye condition and the children were not participating in activities.
l) The mother and maternal grandmother had limited supports.
[36] On April 27, 2016, Justice Melanie Sager made a final disposition order, on consent. The children were made society wards for 3 months. Access to the mother and maternal grandmother was ordered to be at the discretion of the society, a minimum of one time each week on a weekday at the society's office, unless otherwise agreed to in advance by the parties and the children.
[37] The parties signed a Statement of Agreed Facts to support the disposition order. Important facts agreed to included:
a) The children were placed in the same foster home on April 29, 2015.
b) G.C.A.'s behaviours in the foster home included:
Repeatedly stuffing and flooding the toilet with rolls of toilet paper and paper towels.
Urinating throughout the foster home.
Bedwetting.
Physical aggression towards E.A.
Physical and verbal aggression towards members of the foster family, peers at school and a teaching assistant.
c) G.C.A. was moved to a more specialized foster home in November, 2015, due to his behaviours.
d) A psychological assessment was completed on G.C.A. by Dr. Daniel Fitzgerald on June 4, 2015. He found that G.C.A. was experiencing significant cognitive, social, emotional and behavioural difficulties. He stated that G.C.A. met the criteria for Intellectual Disability Disorder, ADHD and Oppositional Defiant Disorder. He said that G.C.A. required a specialized academic program, effective behavioural management and skills programming and consultation around medication.
e) G.C.A. had been placed on medication that has helped with his physical aggression and ability to focus.
f) A psycho-educational assessment, dated May 20, 2015, was conducted on G.C.A. by Dr. Walter Hambly. He found that G.C.A. was functioning below the 5th percentile and academically performing far below his grade level. He made a diagnosis of Mild Intellectual Disability.
g) G.C.A. has an independent education program. He is in a smaller classroom with a modified program and has a Child and Youth Worker.
h) G.C.A. has some seizure-type issues that may be triggered by stress.
i) Following her admission into care, E.A. presented with a pre-existing eye condition, which had not been addressed. It was now treated.
j) Both children made gains in terms of their physical appearance, hygiene, cleanliness and self-esteem while in society care.
k) The mother and maternal grandmother attended access once each week for two hours at the society's office. The society subsequently increased the access to 3 hours each week and changed the level of supervision from fully supervised to semi-supervised. It was observed that the maternal grandmother took the lead during access, while the mother remained more passive. The mother and maternal grandmother focused their attention primarily on G.C.A. at visits.
l) Following the children's admission into care, the family remained resistant to society involvement and the society worker was unable to meet with them in their home until February 22, 2016.
m) The worker observed the family home on February 22, 2016. The home was tidy, but there were some health and safety issues. The family advised that repairs were in progress.
[38] The society issued a Status Review Application on July 5, 2016, seeking a further 6 month order for society wardship. The mother and maternal grandmother filed Answers/Plans of Care seeking the return of the children to their care.
[39] The society issued an Amended Status Review Application on December 7, 2016 seeking crown wardship of the children. The mother and maternal grandmother did not file Amended Answers/Plans of Care. The court is relying on their original pleadings seeking the return of the children to their care.
[40] G.C.A. has made many gains in society care, but continues to have complex special needs. He is being provided with specialized care and supportive services.
[41] G.C.A. has remained in the same foster home since November, 2015. The foster mother is a Child and Youth Worker with the Peel School board and is diligent with G.C.A. to ensure he is following through with daily routines, tasks and chores.
[42] A number of supports have been provided for G.C.A. at school. His behaviour has improved and he received a special student award at the end of the school year. He is now in high school and enjoying it. He has been identified at school with an "Exceptional Intellectual- Mild Intellectual Disability. He is in a special vocational program. He is starting to develop some independence and no longer needs a chaperone at lunch.
[43] G.C.A. is being followed by a family doctor and a paediatrician. He sees a paediatric neurologist for spasms. He continues to have spasms in his right arm, leg and face, which bother him when he is physically active. The diagnosis is Parozysmal Dyskinesia, which is an episodic movement disorder. He has been referred to the Hospital for Sick Children's Movement Clinic for this issue. G.C.A. was referred to a psychiatrist to regulate his mood swings and aggression. He was placed on medication, which has been beneficial. The reports of aggressive behaviour have decreased.
[44] G.C.A. has also been treated while in the care of the society for allergies and his ADHD.
[45] G.C.A. no longer exhibits sexualized behaviour.
[46] G.C.A. continues to have issues with bedwetting.
[47] G.C.A. has a goal of participating in a plumbing or electrician program.
[48] G.C.A. visits weekly with the mother and maternal grandmother for 4 hours in their home. No concerns were expressed about these visits.
[49] G.C.A. has been able to identify progress he has made in foster care. He has said that he wants to go home, but has expressed ambivalence about this.
[50] In her factum, G.C.A.'s counsel put forward a position that G.C.A. be returned home under very specific terms of supervision, for 12 months. After hearing evidence from the mother and maternal grandmother, counsel emphasized that it was also G.C.A.'s position that he only wanted to return home if the terms of supervision would be complied with – it would be up to the judge to make that assessment.
[51] E.A. has generally done well in society care. She is a talented artist, gymnast and dancer and wants to attend a school for the arts for high school. However, there have been some negative changes in E.A.'s behaviour since the summer of 2016. She has been observed as being less focused at home and at school. She has to be frequently reminded about attending to her hygiene. The society is arranging therapy for her.
[52] In April, 2016, the society attempted to expand E.A.'s access with the mother and maternal grandmother, with a view to reintegration. Access was expanded to include Saturday visits in the community. E.A. became very resistant to going on visits and required considerable encouragement to attend. She was clear that she wanted Saturday visits to end. During the summer of 2016, visits were changed to Fridays for 3 hours in the community. In September, 2016, visits were moved to the family home and again, E.A., said she did not want to attend.
[53] E.A. has expressed to workers that she is bored on visits. She has made suggestions for activities on visits, but the mother and maternal grandmother have not engaged her in these activities, claiming they have insufficient time.
[54] E.A. asked for the frequency of visits to be reduced in October, 2016 to alternate weeks. The society has attempted to work with the mother and maternal grandmother to engage E.A. in activities that interest her at visits. They have been hostile to these suggestions.
[55] E.A. presently has visits bi-weekly on Saturdays for four hours, but still occasionally refuses to attend.
[56] E.A. has been consistently clear in expressing to professionals that she does not want to return home.
[57] E.A. has expressed that she does not have confidence in her mother's or maternal grandmother's ability to make decisions in consideration of her wishes in a timely way.
[58] The mother and maternal grandmother feel that E.A.'s views and preferences have been unduly influenced by the society and foster family. They offered no evidentiary basis to support this.
[59] The mother and maternal grandmother love the children.
[60] The mother and maternal grandmother value the meaning of family and culture and want to share this with the children.
[61] The mother and maternal grandmother's residence has been renovated and the physical safety of the home is no longer a concern.
[62] The mother and maternal grandmother permitted home visits by the society on August 10 and October 22, 2016.
[63] The mother and maternal grandmother have been unwilling to participate in any programs suggested by the society to improve their parenting of the children and to better appreciate the children's needs.
Part Three – Legal Considerations for Summary Judgment
[64] The society brings this motion pursuant to rule 16 – the summary judgment rule.
[65] 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 requiring a trial. See: Children's Aid Society of Hamilton v. M.N..
[66] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. See: C.R. v Children's Aid Society, 2013 ONSC 1357.
[67] A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. See: Children's Aid Society of Toronto v. K.T..
[68] Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion. See: Children's Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842.
[69] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that she faces some better prospects than what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H..
[70] Justice A. Pazaratz stated at paragraph 43 of Children's Aid Society of the 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."
[71] On May 2, 2015, the rules were amended to broaden the powers of the court on a summary judgment motion. Rule 16 has now been amended to include the same summary judgment powers set out in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. These expanded powers, now set out in subrule 16(6.1), are:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[72] The relevant provisions of rule 16 now read as follows (with amendments bolded):
RULE 16: SUMMARY JUDGMENT
WHEN AVAILABLE
- (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. O. Reg. 114/99, r. 16(1).
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. O. Reg. 114/99, r. 16(2).
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:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- 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.
[73] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, set out the process to be followed in applying the expanded summary judgment rule in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure.
[74] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers.
[75] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).
[76] If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This is the mini-trial procedure set out in subrule 16(6.2). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).
[77] Subrule 16(6.2) reads as follows:
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.
[78] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64).
[79] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).
[80] The court in Hryniak also set out the following:
a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).
b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).
c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (paragraph 34).
d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).
e) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).
f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).
g) 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 the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding (paragraph 57).
h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial (paragraph 58).
[81] The principles in Hryniak have been applied to summary judgment motions in many child protection cases since the amendments to rule 16 became effective. See: Children's Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378, per Justice Timothy Minnema; Children's Aid Society of Toronto v. L.S., 2015 ONCJ 527, per Justice Penny Jones; Catholic Children's Aid Society of Toronto v. A.G., [2016] O.J. No. 4474 (OCJ), per Justice Roselyn Zisman and this court's decision in Jewish Family and Child Service of Greater Toronto v. E.W. and R.C., 2016 O.J. No. 9 (OCJ).
Part Four – Disposition
4.1 Legal Considerations
[82] This Status Review Application is brought pursuant to section 64 of the Act.
[83] Clause 65(1)(c) of the Act states that where a review of a child's status is made under section 64, the court, may, in the child's best interests make an order under section 57 of the Act – the disposition options.
[84] Section 57 of the Act sets out the following disposition options:
Order Where Child in Need of Protection
57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:
Supervision order
- That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
Society wardship
- That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.
Crown wardship
- That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.
Consecutive orders of society wardship and supervision
- That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57(1); 2006, c. 5, s. 13(1-3).
[85] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:
Determine whether the disposition that is in the child's best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or crown wardship. (Section 57.)
If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for crown wardship.
If a society wardship order is made determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests (section 58.)
[86] Subsection 57(2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part III of the Act. The evidence indicates that the society tried very hard to work with the mother and maternal grandmother before asking to bring the children into its care. It only took this step after the mother and maternal grandmother continually breached supervision orders and would not take steps to address the protection concerns. The mother and maternal grandmother have not accepted the need for services suggested by the society.
[87] Subsection 57(3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.
[88] Subsection 57(4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care. The evidence indicates that the mother and maternal grandmother have been resistant about providing the society with information about family members who could put forward a plan. The society has referred the matter to its kinship department to conduct a search for family members.
[89] In determining the appropriate disposition, the court must decide what is in the children's best interests. The court considered the criteria set out in subsection 37(3) of the Act in making this determination. This subsection reads as follows:
Best Interests of Child
37. (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships by blood or through an adoption order.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
[90] A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J), (1997) 23 R.F.L. 4th 79 (SCJ).
[91] In determining the best interests of the children, the court must assess the degree to which the risk concerns that existed at the time the children were brought into the society's care still exist today. This must be examined from the children's perspective. See: Catholic Children's Aid Society of Metropolitan Toronto v. C.M..
[92] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters, should be child-focused. See: Children's Aid Society of Toronto v. D.S.. The children have been in care for over 21 months – close to the statutory time limit set out in clause 70(1)(b) of the Act.
4.2 Review of Plans of Care and the Affidavit Evidence of the Mother and Maternal Grandmother
[93] The society's position is that there is no genuine issue requiring a trial with respect to the disposition of this case. It submitted that the children should be made crown wards with access to the mother and maternal grandmother in its discretion and in consideration of the children's wishes.
[94] The society submitted that the mother and maternal grandmother have made no tangible changes since the children came into care. It submitted that they continue to lack insight into the protection concerns and to minimize them and have not offered a realistic plan to address the children's needs. It submits that the children's gains in care would be severely compromised if they were placed with the mother and maternal grandmother. It submits that the mother and maternal grandmother would not cooperate with a supervision order.
[95] The society intends to have the children stay in their present placements and provide them with long-term workers. It plans to arrange therapy for E.A. It will continue to have G.C.A. see the multiple specialists listed in paragraph 43 above. It also plans to support access between the children and the mother and maternal grandmother.
[96] The mother and maternal grandmother submit that there are genuine issues requiring a trial. They claim that they do understand the needs of the children and are able to meet them. They believe that it is in the best interests of the children to live with them and for the society to leave the family alone.
[97] The mother and maternal grandmother believe that the society has misunderstood them and the children's needs. They do not believe that the children were ever in need of protection. They believe that G.C.A.'s behaviour was only as a result of being bullied at school and the failure of the school to address this. The maternal grandmother deposed that G.C.A.'s school "suffers from what I would describe as a lack of responsibility". She said that she and the mother enrolled G.C.A. in a special program and the school cancelled the program.
[98] The mother and maternal grandmother stated their belief that they complied with the terms of the court orders for supervision and have done everything the society has asked of them. They noted that they have renovated their home and permitted the society worker to attend there. They have attended all Plan of Care meetings and access visits.
[99] The mother and maternal grandmother deposed that they have always acknowledged G.C.A.'s limitations and his special learning needs and sought help for it.
[100] The mother and maternal grandmother continued to deny the protection concerns related to neglect of the children that led to them being brought into the society's care. They denied that the children had poor hygiene and dirty clothing.
[101] In her affidavit, the maternal grandmother expressed that she was grateful for the services the society has provided for G.C.A.
[102] The mother and maternal grandmother attributed E.A.'s reluctance to see them to improper influence by the foster mother and the society. They provided no particulars of this. They both feel that E.A.'s attitude would change if she was just sent home. The maternal grandmother also observed that it was natural for E.A. to want to spend time with her friends and extra-curricular activities instead of being with them at visits. She stated that the society is not doing enough to encourage E.A. to go to visits.
[103] The maternal grandmother deposed that the society had failed to provide services to support E.A.'s relationship with her and the mother and only provided services to E.A. to distance her from her family.
[104] The maternal grandmother and mother disputed the society's allegation that they were not responsive to arranging activities for E.A. or open to the society's suggestions for activities. They both deposed that they did not have sufficient time to do these activities.
[105] The mother and maternal grandmother state that they will take G.C.A. to a family doctor and have him see a specialist for his physical issues. The children would attend the local school. They say that they will work with the school to meet the children's academic needs. They say that they will find activities for the children. In their affidavit material, the mother and maternal grandmother stated that they would cooperate with the society and follow suggestions for programming for the children. However, the maternal grandmother also wrote:
If the society was willing to work with us, instead of against us then we would be happy to welcome their involvement in our family. Up until now we have not found that to be the case.
[106] The maternal grandmother deposed that she and the mother are making efforts to participate in a parenting program.
[107] The maternal grandmother and mother expressed their confidence that they could meet the developmental needs of both children.
[108] The maternal grandmother indicated that she would financially support the family from her teacher's pension, Old Age Security and Canada Pension Plan benefits. The mother and maternal grandmother would also receive Child Tax Benefits.
4.3 Positives About the Plan of the Mother and Maternal Grandmother
[109] The following are the positive factors about the plan of the mother and maternal grandmother:
a) They both clearly love the children and care about their future.
b) The children love them.
c) The children would have the full benefit of being raised in their culture. The family has African heritage from Congo. French is the mother and maternal grandmother's first language.
d) The mother and maternal grandmother have suitable accommodation for the children.
e) The mother and maternal grandmother have shown commitment to the children by attending consistently for access and going to Plan of Care meetings held at the society offices.
f) G.C.A. has expressed a desire to return home. Given his age, his views and preferences are given serious consideration.
4.4 No Genuine Issue Requiring a Trial Based on the Affidavit Material
[110] Despite these positive factors, based on the affidavit evidence alone, there was no genuine issue requiring a trial - the children should be made crown wards. The court makes this determination for the reasons that follow.
[111] The children came into care and were found to be in need of protection due to the neglect of their needs by the mother and maternal grandmother. The court had given the mother and maternal grandmother several opportunities to show that they could meet the children's needs before bringing them into society care. The mother and maternal grandmother did not comply with the court's supervision orders. They did not cooperate with the society and refused to sign consents for the society to speak to service providers for the family. They did not follow through on services suggested for the children. They demonstrated little insight at the time into the children's needs and exercised poor judgment.
[112] In her affidavit material, the maternal grandmother continued to deny the original protection concerns. Those findings have already been made and do not constitute a genuine issue requiring a trial. However, these denials are relevant for determining if the mother and maternal grandmother have developed any new insight into the needs of the children and their role in the children coming into society care. It is instructive to the court that the mother and maternal grandmother continued to deny their neglect of the children, minimized the needs of the children at that time and continued to accept no responsibility for the children coming into care. The maternal grandmother instead, focused blame on the society and the schools. It is unlikely that the risks to the children can be reduced when the mother and maternal grandmother do not accept that there ever was any risk.
[113] The evidence is clear that G.C.A. continues to have significant special needs. He has thrived in the care of the society. He is a young man who needs skilled caregivers who can provide him with structure, routine and guidance. He needs caregivers who can exercise good judgment, coordinate his multiple service providers and work collaboratively with them. Based on the affidavit evidence, the mother and maternal grandmother show very limited ability to be able to do this for G.C.A.
[114] The evidence indicated that E.A.'s emotional needs are greater now than when she came into the society's care. She is becoming more of a challenge to manage. She requires a caregiver who will be sensitive to her needs and get her the services she requires. The society is arranging therapy for her.
[115] The mother and maternal grandmother have historically been unable to obtain services that the children require or to work collaboratively with professionals. They had fought with two schools G.C.A. attended and kept him out of school for too long when he was in their care. They didn't follow up on society recommendations for services for the children. There was little in their affidavit evidence that would give the court confidence that the mother and maternal grandmother have changed in this regard. They have not taken any programs to improve their parenting, despite referrals by the society. They have provided limited cooperation with the society, only allowing them to see their home for the first time on February 22, 2016 and twice after. The maternal grandmother expressed her resentment of the society's role in her affidavit. The statement by the mother and maternal grandmother that they will now cooperate with the society is little more than a bald statement – it needed to be supported by much better evidence of actual cooperation.
[116] The mother and maternal grandmother's plan to care for the children's needs was vague. They intend to take G.C.A. to their family doctor for referrals. They have not taken any steps to look into services they would provide for him. They proposed no services for E.A. They did not provide a suitable plan to address the children's multiple needs.
[117] The mother and maternal grandmother were unable to identify any personal or professional supports, other than their family doctor, in their affidavits. Supports are important due to the children's significant needs.
[118] The mother and maternal grandmother demonstrated little understanding of the children's needs in their material. They did acknowledge G.C.A.'s physical and learning issues, but felt that his behavioural issues prior to coming into care were overstated and were only a result of being bullied.
[119] The maternal grandmother showed little respect towards E.A.'s views and preferences in her affidavit – attributing them to undue influence by others. This demonstrated little insight into E.A.'s emotional needs.
[120] E.A.'s consistent view to have reduced contact with the mother and maternal grandmother is an important consideration given her age, maturity and the overall context of this case. It is reflective of her belief that the mother and maternal grandmother cannot meet her needs.
[121] Based on the affidavit material, little has changed for the mother and maternal grandmother since the children were found to be in need of protection, other than renovating their apartment and providing some minimal cooperation with the society. They feel that there never were any protection concerns and there continue to be no protection concerns. In the absence of change, the risks to the children that existed when the findings in need of protection were made remain just as high now.
[122] The lack of insight and judgment by the mother and maternal grandmother make it unlikely that they can make the necessary parenting changes to adequately address the children's needs.
[123] The children have made many gains in care due to skilled caregiving. Based on the material filed, there is an unacceptable risk to the children that these gains would be reversed if they were placed in the care of the mother and maternal grandmother.
[124] The court has seriously considered G.C.A.'s views and preferences. However, the evidence indicates that G.C.A. is ambivalent about returning home and only wants to do so under strict terms of supervision that will be complied with.
[125] The mother and maternal grandmother did not provide an acceptable reason in their affidavits for breaching the court-ordered terms of supervision while the children were in their care. It was clear that they did not agree with the court orders. The court was given little confidence that the mother and maternal grandmother would comply with court orders in the future if they did not agree with them. Compliance with court orders would be essential to protecting the children if they were returned to the mother and maternal grandmother. Supervision orders should not be made if the proposed caregivers are ungovernable. See: Windsor-Essex CAS v. L.H., 2004 ONCJ 196.
[126] Based on the affidavit evidence filed, returning G.C.A. to the care of the mother and maternal grandmother, subject to supervision, would be setting him up to fail, as there is no realistic basis to believe that the mother and maternal grandmother would comply with supervision terms or provide him with the services, structure and routine that he requires.
Part Five – Oral Evidence
5.1 Use of Subrule 16(6.2)
[127] Although there was no genuine issue requiring a trial based on the material filed on the summary judgment motion, the court was concerned that this evidence alone did not permit it to fairly and justly adjudicate the matter.
[128] Issues such as insight, judgment and attitude are often complex and are difficult to evaluate on affidavits alone. The court's perception of these issues can be unduly affected – for better or for worse – by the skill of the drafter of the affidavits.
[129] In this case, the fact that English is not the first language of the mother and maternal grandmother added to the court's concern. Did the mother and maternal grandmother have more insight and better judgment than was reflected in their affidavits? Was there more substance to their bald statements that they would cooperate with the society and would obtain the necessary services to help their parenting and the needs of the children than was set out in their affidavits?
[130] Given the seriousness of the remedy sought by the society and G.C.A.'s wish to return home under strict terms of supervision, the court decided to apply subrule 16(6.2) of the rules to hear focused oral evidence from the mother and maternal grandmother to assist it in evaluating whether there might be a genuine issue requiring a trial.
[131] The court asked to hear oral evidence from the mother and maternal grandmother to address the following:
a) Their understanding of the protection concerns.
b) The steps they have taken to address the protection concerns.
c) Their understanding of the children's needs.
d) How they plan to meet the children's needs.
e) How they intend to address E.A.'s desire to remain in society care.
f) Their level of cooperation with the society.
[132] The maternal grandmother was examined for approximately 90 minutes by counsel for the society, the children and her own lawyer. The parties were allotted 45 minutes to examine the mother. They chose to only question her for approximately 30 minutes.
[133] The examinations of the mother and maternal grandmother reinforced the court's finding that there are no genuine issues requiring a trial. The court finds that it can fairly and justly adjudicate this matter based on the material filed on this motion and the oral evidence of the mother and maternal grandmother.
5.2 The Maternal Grandmother
[134] It was clear to the court that the maternal grandmother loves the children and wants them to live with her. She was very confident about her ability to manage the children's needs.
[135] The maternal grandmother had difficulty focusing her evidence and directly answering questions. She often gave tangential answers when faced with difficult questions.
[136] The maternal grandmother demonstrated no insight into the protection concerns. She believes that there never have been any protection concerns. She continued to maintain that the children were improperly taken into care and had been doing well in the care of her and the mother. She minimized G.C.A.'s significant behavioural needs. She took no responsibility for the children being in care and externalized all blame for this. When her lawyer asked her if she had ever done anything in the past that wasn't ideal for the children, she said no.
[137] The maternal grandmother blamed G.C.A.'s school for his coming into care due to false allegations of sexualized behaviour. She claimed, "there is a lack of administration at the school, children are deceived by the school…..if I hadn't been there, G.C.A. would have been killed".
[138] When the maternal grandmother was asked if she knew why G.C.A.'s second school expressed the same concerns about his behaviour as his first school. She answered, "because the old school was friends with the new school".
[139] There was a long period of time that G.C.A. did not attend school when he was suspended. When asked why she did not have him attend the Safe Schools Program, the maternal grandmother said, "because we didn't accept allegations of sexuality". When asked why she did not agree to a social worker being able to assist G.C.A. at school, she said, "all based on sexuality". The maternal grandmother and mother let their anger at the schools take priority over G.C.A.'s academic needs.
[140] The maternal grandmother denied the allegations of poor hygiene for the children when they were in her care. She claimed that G.C.A.'s clothes were destroyed by bullies.
[141] The maternal grandmother expressed hostility towards the society. She claimed that a society worker, "mistreated us….she was always menacing us". She said that the society didn't understand or respect them. When asked why she had refused to sign consents for the society to speak to G.C.A.'s new school, she answered, "we wanted to escape from her at the new school...she caused problems at the old school".
[142] When her lawyer asked her if she would cooperate with a supervision term that the society could come to their home every two weeks, the maternal grandmother answered, "That is an abuse, it needs to be stopped!" Her lawyer then tried a different approach, asking her if she would be able to work with the society. She answered, "I would have to reflect on that". When her lawyer asked her if she would go to a family therapist if recommended by the society, she answered, "As I said, they should just leave us alone".
[143] The maternal grandmother was asked whether she should have followed the court orders. She answered, "when everything was based on sexuality allegations, things were accelerated to punish the child".
[144] The maternal grandmother was very clear that she wants the society gone from her life. The evidence left the court with little doubt that the maternal grandmother would not cooperate with the society or comply with court orders she disagreed with if a supervision order was made.
[145] The maternal grandmother was able to identify that G.C.A. had physical issues that required treatment and that he required a special class at school for his learning challenges. She did not have any appreciation of his behavioural issues.
[146] The maternal grandmother demonstrated no respect or understanding of E.A.'s views and preferences. When asked what she could do to get E.A. to want to see her more, she answered, "it is high time to come home…..she needs to know that communication is very important". The maternal grandmother said that she would not participate in therapy with E.A. She said, "we don't need it". When E.A.'s lawyer asked her if she would participate if E.A. wanted to do this, she answered, "sorry – you have already oriented E.A.". The maternal grandmother blamed others for E.A.'s lack of desire to spend time with her and the mother, and took no responsibility for this herself.
[147] The maternal grandmother was asked what has changed since the children were brought into the society's care. She was able to identify renovations to the home, but was unable to identify any personal change or growth.
[148] The maternal grandmother has not sought out any services to improve her parenting. She does not feel this is necessary.
[149] The maternal grandmother offered few additional details about her plan to meet the children's needs. The maternal grandmother has not sought out any services for the children. She says that she will rely on referrals from her family doctor. She will not go to any services for herself. The court agrees with the society's submission, that for the most part, the plan is that love is enough – return the children to us, and all will be fine.
[150] The evidence indicates that the maternal grandmother's poor insight, judgment and attitude towards the society has not changed since the children came into care. She is unlikely to change her conduct or be able to fully appreciate or adequately meet the children's needs. The risks to the children remain as high now as they were when the protection findings were made.
5.3 The Mother
[151] Unlike the maternal grandmother, the mother presented as very uncomfortable on the witness stand. This was understandable given the stakes and English not being her first language. Counsel were sensitive to this and focused their questioning.
[152] The mother was asked how her parenting has changed since the children came into care. She said it was the same.
[153] The mother was asked if looking back there was anything she would have done differently. She said no.
[154] When asked by her lawyer what she has learned since the children were brought into care about being a parent, she answered, "I learned it was a very difficult experience for a parent or a grandparent".
[155] The mother was asked if she could use any help in her relationship with E.A. She said no.
[156] The mother was unable to identify any services she has participated in since 2004.
[157] The mother was asked if there was anything she could do to improve as a parent. She said no.
[158] The mother was asked by her lawyer if she ever reflected on her parenting capabilities. She said no.
[159] The mother was asked about her relationship with the father. She said that she is considering reconciling with him, but she hasn't discussed this with him yet. This was the first mention of this possibility in the evidence. Since the father has not been involved in this court case (or with the children for a long time), if there was a reconciliation, this would add another layer of complication to the mother's plan.
[160] The mother was asked if she agreed with everything that the maternal grandmother had said. She said yes.
[161] The evidence confirmed that the mother had little insight into the needs of the children and was unable or unwilling to take the necessary steps to improve her parenting to meet their needs.
[162] The mother's evidence also gave the court little confidence that she would comply with any court orders for supervision or meaningfully cooperate with the society or service providers for the children.
[163] The mother's evidence revealed that she has not changed since the children were brought into the society's care. She does not believe that any change is necessary, so there is little chance of parenting improvement. The protection concerns remain as high now as at the time the children were brought into the society's care in April, 2015.
5.4 Summary of Factors Adverse to the Mother and Maternal Grandmother Set Out in Subsection 37(3) of the Act
[164] In addressing the relevant clauses in subsection 37(3) of the Act, the court finds that:
a) The society's plan will best meet the children's physical, mental and emotional needs.
b) The society's plan will best meet the children's physical, mental and emotional level of development.
c) The society's plan will best meet the children's needs for continuity and stability.
d) The risk of placing the children with the mother and maternal grandmother is unacceptably high.
e) The society's plan will best address the children's needs than the plan proposed by the mother and maternal grandmother.
f) This case should not be delayed any further and the children should receive permanency as soon as possible.
[165] There is no genuine issue requiring a trial that the least disruptive disposition, consistent with the children's best interests, is to make them crown wards.
Part Six – Access
6.1 Legal Considerations and Positions
[166] Once a child is made a crown ward, subsection 59(2.1) of the Act states that the court shall not make an access order unless the party seeking access can demonstrate that access is beneficial and meaningful for the child and that an access order shall not impair the child's future opportunities for adoption. The parties agreed that the mother and maternal grandmother met this test.
[167] Subsection 58(1) of the Act sets out the legal test for determining access as follows:
Access Order
58. (1) The court may, in the child's best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
[168] The society sought an order that the mother and maternal grandmother's access to the children be in its discretion, and in consideration of the children's wishes. E.A. supported this request.
[169] The mother and maternal grandmother did not make specific submissions about access – focusing instead on the issue of placement. However, it is logical to assume that they want as much access with the children as possible. They both expressed that they did not have enough time to spend with them.
[170] Counsel for G.C.A. also did not make specific access recommendations. However, the evidence was clear that G.C.A. wants to spend more time with the mother and maternal grandmother.
[171] Counsel for the children sought sibling access and asked to make the children access holders for access to the mother and maternal grandmother. These requests were not opposed by the other parties, are in the best interests of the children and will be ordered.
6.2 E.A.
[172] E.A. has been very resistant to spending time with the mother and maternal grandmother. She has required considerable encouragement to attend on visits. Reviewing the evidence, the court is satisfied that the society and the foster mother have worked very hard to persuade E.A. to go on access visits.
[173] The mother and maternal grandmother love E.A., but show no insight into her emotional needs. Despite E.A.'s requests, they do not engage in activities that interest her on visits. They are unwilling to participate in any family therapy with her or take any parenting courses, so there is limited potential for improvement in their relationship.
[174] Not surprisingly, given the turmoil in her life, E.A. is experiencing some difficulties. The society is wisely arranging therapy for her. This is likely a critical juncture in E.A's life. She needs stability and predictability. She needs her concerns respected. The evidence indicates that E.A. has considerable talent and potential and every effort should be made to assist her to achieve this potential. This means that her needs take priority to the need of the mother and maternal grandmother to spend more time with her.
[175] E.A.'s views and preferences on access should be given considerable respect. They have been consistent and are not unreasonable.
[176] It is in E.A.'s best interests that the access order be very flexible to reflect circumstances that may change and to take into account her views and preferences. It is not in her best interests to specify access or to impose a minimum access provision.
[177] There is no genuine issue requiring a trial that access by the mother and maternal grandmother to E.A., should be in the society's discretion, and in consideration of E.A.'s wishes.
6.3 G.C.A.
[178] The access analysis regarding G.C.A. is different.
[179] The society did not meet its onus of establishing that there is no genuine issue requiring a trial regarding the issue of access between G.C.A. and the mother and maternal grandmother. The court needs to determine if:
a) Access should be in the society's discretion.
b) Minimum amounts of access should be ordered.
c) Specified access should be ordered.
[180] The court makes this finding for the following reasons:
a) The evidence indicates that G.C.A.'s visits with the mother and maternal grandmother are positive. These visits have been increased gradually to weekly in the family home for 4 hours. There have been no concerns reported about these visits.
b) The protection concerns about the mother and maternal grandmother primarily go to their ability to adequately meet the schooling, social and developmental needs of G.C.A. They go to their ability to provide him with the necessary structure and services he requires. These needs should be met by G.C.A remaining in society care. Arguably, expanded access would not interfere with these objectives.
c) G.C.A.'s views and preferences are also entitled to considerable respect. He wants to spend more time with the mother and maternal grandmother.
d) G.C.A. has made gains in society care that arguably equip him to better manage longer visits.
e) More time with the mother and maternal grandmother would allow G.C.A. to be more involved in his culture and heritage.
f) It is arguable that the society has been overly cautious in increasing access and that access minimums or specified access should be ordered, including overnight visits.
[181] The court gave some thought to making an access order based on the evidence presented, but decided not to. The court did not receive specific access proposals from the mother, maternal grandmother or G.C.A., which could assist it in making the access order that is in G.C.A.'s best interests. The society should have the ability to respond to these proposals. There may be further evidence that the parties will wish to present, depending on the access proposals that are made.
Part Seven – Next Steps
[182] A summary judgment motion can be an opportunity to make findings of fact not in dispute, narrow the issues to be heard at trial and give directions to assist in organizing the trial pursuant to subrule 16(9). See my comments in: Children's Aid Society of Toronto v. S.A., [2013] O.J. No. 3183 (OCJ).
[183] Subrule 16(9) reads as follows:
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 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).
[184] Subrule 1(7.2) gives the court the ability to make several types of orders to manage a hearing, for the purpose of dealing with a case justly, including:
a) Placing time limits on the length of the hearing and apportioning that time between the parties.
b) Placing limits on the number of witnesses.
c) Placing time limits on the examinations of witnesses.
d) Providing that a witness give all, or part of their evidence by affidavit.
[185] The determination of the issue of G.C.A.'s access with the mother and maternal grandmother is appropriate for a very focused hearing, as most of the material facts have already been determined in this decision. Unless this court orders otherwise, no further evidence will be permitted at the hearing concerning findings of fact already made.
[186] A return date will be set for the parties to make submissions about how the focused hearing should be conducted. I will conduct the hearing.
[187] If the parties agree, the court is prepared to decide this issue based on the evidence provided to date and submissions of the parties (without further oral evidence) on the return date. If this agreement is reached, the parties should confirm this with the court by Form 14C.
Part Eight – Conclusion
[188] A final order will go on the following terms:
a) There is no genuine issue requiring a trial, and final orders are made that:
G.C.A. and E.A. are made crown wards.
The mother and maternal grandmother shall have access to E.A. and E.A. shall have access to the mother and maternal grandmother in the society's discretion, and in consideration of E.A.'s wishes.
E.A. shall have access to G.C.A. and G.C.A. shall have access to E.A., as agreed between the children and the society.
b) There is a genuine issue requiring a trial regarding G.C.A.'s access with the mother and maternal grandmother.
c) A focused hearing shall be conducted on the remaining issue, pursuant to subrule 16(9).
d) I will conduct the focused hearing.
e) The findings of fact made in paragraphs 9-63, 109-126, 136, 144-150, 161-165 and 180(a), (b – except the last sentence), (c) and (e) of this decision will be applied to the remaining access issue. Unless the court gives direction otherwise, no further evidence shall be led at the hearing regarding these findings.
f) The parties shall attend before the court on March 2, 2017 at 10:00 a.m. and make submissions about the form of the focused hearing. If the parties agree, the court is prepared to determine the remaining issue on that date based on the evidence provided on this motion and submissions. If this agreement is reached, counsel should advise the court in advance of the return date by Form 14C.
[189] The parties are encouraged to make good use of this adjournment period and negotiate the resolution of the remaining issue. Formal offers to settle should be exchanged to assist the parties in this process.
[190] The court wishes to thank counsel for their professional presentation of this motion.
Released: February 21, 2017
Justice Stanley Sherr