WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) IDEM: ORDER RE ADULT — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) IDEM — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: September 1, 2017

Court File No.: Brampton 20100/15

Between:

Children's Aid Society of Peel Region, Applicant

— AND —

I.P. (Mother), Respondent

— AND —

F.B. (Father), Respondent

Before: Justice L.S. Parent

Heard on: August 30, 2017

Reasons for Judgment released on: September 1, 2017

Counsel

G. Williams — counsel for the applicant society
I.P. — self-represented
Y. Rosenberg — counsel for the child, A.B.
F.B. — self-represented

PARENT, J.:

BACKGROUND

[1] The child who is the subject of this proceeding is A.B., born on […], 2004. A.B. is currently thirteen (13) years of age. The parents are Ms. I.P. ("the mother") and Mr. F.B. ("the father").

[2] The current order regarding the care of A.B. is dated May 31st, 2016. The order was granted following the hearing of a summary judgment motion brought by the Society seeking the relief ultimately awarded.

[3] The May 31st, 2016 order provides:

(a) that A.B. be placed in the care and custody of the father for a period of six (6) months, subject to supervision by the Children's Aid Society of the Region of Peel subject to terms and condition; and

(b) that access between A.B. and the mother and maternal grandmother be at the discretion of the Society as to frequency, duration, location and supervision and in consideration of A.B.'s wishes.

[4] Proceedings involving the parents and the child were initially filed on November 16th, 2015.

[5] The current application before the court is a Status Review Application filed November 17th, 2016. This application seeks the termination of the supervision order granted on May 31st, 2016.

[6] On March 13th, 2017, the mother filed an Answer seeking the return of A.B. to her care.

[7] On March 24th, 2017 the father filed an Answer consenting to the Society's request to terminate and seeking an order for sole custody of A.B.

SUMMARY JUDGMENT MOTION

[8] The Society brings this motion for summary judgment pursuant to Rule 16 of the Family Law Rules ("FLR"), O. Reg. 114/99.

THE PARTIES AND THEIR POSITIONS

Children's Aid Society

[9] The Society has filed a Notice of Motion, at Tab 5, Volume 3 of the Continuing Record, seeking the termination of their involvement with this family.

[10] Counsel references the affidavit of M. Constantine, child protection worker, sworn July 4th, 2017 and located at Tab 6, Volume 3 of the Continuing Record and the affidavit of H. Huggins, child protection worker, sworn July 4th, 2017 and located at Tab 7, Volume 3 of the Continuing record, in support of the order they are requesting.

[11] The Society submits that the evidence it presents on this motion establishes that there is no genuine issue requiring a trial.

[12] Counsel submits that if this position is accepted, the Court is able to conclude, on the motion material filed, that the order it seeks is in the best interest of A.B. as required pursuant to sections 65(a) and 37(3) of the Child and Family Services Act ("CFSA").

The Respondent/Father, Mr. F.B.

[13] The father of A.B. has not filed an affidavit in response to the Society's motion. He indicates at the beginning of the hearing of this matter that he consents to the order being requested by the Society.

OCL Counsel for A.B.

[14] Counsel for A.B. was appointed pursuant to the May 31st, 2016 order.

[15] Counsel has also not filed any affidavit in response on behalf of her client. She confirms however that she, on behalf of A.B., supports the Society's request as contained in the Notice of Motion.

The Respondent/Mother, Ms. I.P.

[16] The mother of A.B. has filed an affidavit in response to the Society's motion materials. Her affidavit is sworn August 4th, 2017 and is located at Tab 8, Volume 3 of the Continuing Record.

[17] She indicates at the beginning of the hearing of this matter, through a Russian interpreter, that she is opposing the request of the Society.

ISSUES TO BE DETERMINED

[18] The issues before the Court for determination are:

(a) whether or not there is a triable issue for a disposition for A.B. other than an order permitting the termination of the Society's involvement; and

(b) if the Society's Summary Judgment motion is denied, what, if any, directions should be given by the Court?

THE LAW AND THE EVIDENCE

[19] There is no dispute that Rule 16 of the FLR permits a motion for Summary Judgment to be brought in child protection matters such as the Status Review Application before the Court.

[20] As submitted by counsel for the Society, section 65(a) of the CFSA permits the court to terminate the involvement of a Society with a family if such an order is in the "best interests" of the child.

[21] As submitted by counsel for the Society, the factors which the Court must consider when deciding which order is in the best interest of the child can be found in section 37(3) of the "CFSA".

[22] Counsel for the Society submits that a termination of the May 31st, 2016 order is in A.B. best interests for the following reasons:

(i) A.B. has been in the care of the father since November, 2015. This placement was initially pursuant to a temporary order, and then pursuant the May 31st, 2016 final order;

(ii) The Society has been supporting A.B. and the father and monitoring this placement since that time;

(iii) The Society has not had any protection concerns arise since A.B.'s placement with the father in November, 2015. The home life has been and continues to be stable;

(iv) A crisis worker was assigned to the father and A.B. in 2016. This resource ended in July 2016 due to the Society concluding that the placement was stable;

(v) The father has fully co-operated with Society workers, counsel for A.B. and other service providers involved with him and the child;

(vi) The father and A.B. attended and participated in joint and individual counselling to address such issues as anger management and parenting communication skills;

(vii) Since September, 2016 A.B. has refused to meet with the involved Society workers. Counsel references the affidavits filed which detail the behaviour exhibited by A.B., namely hiding in a closet, refusing to speak and/or meet with the workers, when told the Society workers wish to meet;

(viii) A.B. is doing well at school academically. The evidence of the Society indicates that A.B. has been late arriving at school and has skipped school however she submits that this behaviour has not impacted A.B's school performance and is being dealt with appropriately by the father. Therefore, these concerns do not amount to protection concerns requiring the continued involvement of the Society;

(ix) A.B.'s failure to engage with the Society workers support the request for the termination of the Society's involvement;

(x) Ongoing litigation is not assisting in meeting A.B.'s mental and emotional needs as demonstrated by A.B.'s consistent refusal to meet with Society workers; and

(xi) A.B. unwillingness to engage results in no services being provided to this family.

[23] Counsel for A.B. submits that she last met with A.B. on May 18th, 2017. She indicates that A.B. has refused to meet with her face-to-face since that time.

[24] Counsel submits however that she has had communication with A.B. through text messaging throughout her involvement. Through this method of communication, counsel submits that A.B. consents to the termination, that A.B. is happy residing with the father and that A.B. is "tired of all of this and wants to live a normal life."

[25] Counsel agrees with the submissions made by counsel for the Society regarding that an order terminating the Society's involvement is in the best interests of A.B. and that a genuine issue for trial does not exist.

[26] The father confirms that he supports the submissions made by counsel for the Society and on behalf of A.B. He further indicates that he has retained counsel and has prepared a Motion to Change in the Superior Court of Justice seeking sole custody of his child which is waiting to be filed should the summary judgment motion be granted.

[27] The mother submits that the termination of the Society's involvement should not be granted for the following reasons:

(i) The R/F is brainwashing the child in not wanting to have contact with her;

(ii) All allegations against her made by the Society are false;

(iii) She has been mistreated by the Society and the justice system;

(iv) Her relationship with her child has suffered as a result of the CAS and justice system's mistreatment of her;

(v) The Society has not properly attended to her child's needs;

(vi) A.B. has suffered injuries while in the care of the Society;

(vii) That she is seeking compensation in the amount of $200,000.00 from the Society for the emotional harm and moral damage she has suffered due to their false statements against her; and

(viii) She has filed a complaint with the Ontario Human Rights Tribunal and the Child and Family Services Review Board.

[28] My decision on May 31st, 2016 reviewed the applicable law and caselaw the Court must consider within the context of a Summary Judgment motion. The principles outlined in that decision remain applicable for the motion being considered today.

[29] It is however important to be reminded that Rule 16(6) sets out the test to be applied on a Summary Judgment motion, namely whether or not the moving party can establish, on a balance of probabilities, that there is no genuine issue for trial and that the onus is on the Society to show that there is no genuine issue for trial.

[30] Counsel for the Society is correct to submit that once the Society has advanced a prima facie case that there is no genuine issue for trial then the onus shifts to the mother, as the party opposing the request for termination, to show that there is a genuine issue requiring trial.

[31] The other relevant sections of Rule 16 are as follows:

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.

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.

[32] A review of the total evidence presented by all parties permits me to determine that I have a complete understanding and knowledge of the facts presented by all parties and on behalf of A.B. on this summary judgment motion.

[33] The existing order placed A.B. in the care of the father pursuant to a six (6) month supervision order. The background facts supporting this placement are outlined in my decision dated May 31st, 2016.

[34] The evidence details the following relevant facts since the granting of that order:

(a) A.B. has, despite initial challenges, transitioned well into the father's care;

(b) Although A.B. does continue to exhibit some challenging behaviours, these behaviours do not give rise to protection concerns as they are being addressed appropriately by the father;

(d) the father is committed to caring full-time for A.B. and has commenced the appropriate legal proceedings requesting custody; and

(e) A.B. does not wish to meet with child protection workers or counsel. In refusing, A.B. has exhibited such behaviour as hiding in the closet to avoid these meetings.

[35] These facts are not disputed by the father or on behalf of A.B.

[36] The mother's evidence does not contradict the evidence relied upon by the Society, the father and A.B's counsel in support of the motion. The mother does not dispute the fact that she has not seen A.B. since December 23rd, 2015.

[37] The mother's evidence centers on her theory that the father, the Society and the justice system have resulted in A.B. no longer being in her care and accordingly, she has suffered harm and has been mistreated. Specifically, the mother attaches as exhibits to her affidavit:

(a) documents associated with a review conducted by the Child and Family Services Review Board;

(b) selected pages from a book on Asperger Syndrome;

(d) articles relating to social workers and neuroscience;

(e) the Government of Ontario website information on sex education;

(f) reasons supporting Legal Aid Ontario's decision to not provide funding for her appeal of the decision dated May 31st, 2016;

(g) the endorsement of McSweeney, J. of the Superior Court of Justice dated February 17th, 2017 dismissing her appeal of the May 31st, 2016;

(h) an article entitled "Why people representing themselves in court are clogging the justice system" and comments regarding this article from a social media platform; and

(i) six (6) letters from individuals filed in support of the mother's complaint to the Law Society of Upper Canada.

[38] The mother submits that given her evidence, the order terminating the current order should not be granted within the context of a summary judgment motion.

APPLICATION OF THE FACTS TO THE LAW AND DISPOSITION

[39] The question for determination is whether, on all of the evidence presented, there is a triable issue for a disposition for A.B. other than an order permitting the termination of the Society's involvement.

[40] The mother, in her materials and her submissions, does not propose a plan of care for A.B. other than a return to her care.

[41] The evidence presented on the motion is sufficiently complete for me to consider all of this relevant information and come to a fair and appropriate conclusion as to what plan of care would be in A.B.'s best interests on the facts of this case as mandated under sections 65(a) and 37(3) of the "CFSA".

[42] The evidence as presented satisfies me that that there is no realistic possibility that that a trial will lead to an outcome other than the termination of the existing supervision order granted May 31st, 2016 given the current plans before the court.

[43] I am satisfied that the evidence supports a determination that there are no continuing grounds of protection that warrant the continued involvement of the Society with this family.

[44] A.B. has been in the care of the father since November, 2015. There has been no issue with the father's compliance with the terms of the supervision order dated May 31st, 2016. The father and A.B. have participated in counselling and the father has been co-operative with Society workers and other service providers.

[45] The evidence is clear that A.B. does not want to (a) meet with any child protection workers and counsel, (b) wishes to continue to live with the father and (c) is affected by the ongoing litigation. The evidence equally supports a conclusion that an order continuing the involvement of these individuals and thereby necessitating A.B. being asked to meet with them, is contrary to A.B.'s best interests given A.B.'s consistent and clear refusal to do so for an extended period of time.

[46] I am satisfied that the father can meet A.B.'s needs. The evidence discloses that (a) there has not been any concerns regarding the father's parenting of A.B. and (b) is pursuing an order within the domestic proceedings in order to have A.B. remain in his care. I am satisfied that given the existing domestic order is one granted by the Superior Court of Justice, this court cannot vary that order.

[47] The evidence of the Society as supported by the father and counsel for A.B. satisfies me that there is no need for an ongoing child protection order in this matter.

[48] I am satisfied that the Society has met its burden of establishing that there is no triable issue.

[49] The mother's evidence does not lead me to conclude that she has met her burden of establishing that there is a genuine issue for trial. In summary, her evidence is centered on advancing her view that others are responsible for A.B.'s current placement with the father. Her evidence confirms her continued inability to acknowledge and address her role in the current situation.

ORDER

[50] Based on the facts and the evidence presented as summarized above, I find that the Society has established a prima facie case that summary judgment should be granted. According an order is granted as follows:

(a) my order dated May 31st, 2016, with respect to the child, A.B., born […], 2004 is terminated; and

(b) approval of this order by the Respondents is waived.

Released: September 1, 2017

Justice L.S. Parent

Children's Aid Society of Peel Region v. I.P. and F.B., 2017 ONCJ 597

Case Summary

WARNING

Court Information

Counsel

PARENT, J.:

BACKGROUND

SUMMARY JUDGMENT MOTION

THE PARTIES AND THEIR POSITIONS

Children's Aid Society

The Respondent/Father, Mr. F.B.

OCL Counsel for A.B.

The Respondent/Mother, Ms. I.P.

ISSUES TO BE DETERMINED

THE LAW AND THE EVIDENCE

APPLICATION OF THE FACTS TO THE LAW AND DISPOSITION

ORDER

Judge

Counsel

Parties

Areas of Law