WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order (c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Date: October 24, 2017
Court File No.: Toronto CFO 14 11509
Parties
Between:
Catholic Children's Aid Society of Toronto
Applicant
— And —
I.K. and M.P.
Respondents
Before: Justice Murray
Heard on: October 16, 2017
Reasons for Judgment released on: October 24, 2017
Counsel
- Mr. Chris Andrikakis — counsel for the applicant(s)
- Ms. Molly C. Leonard — counsel for the respondent mother, I.K.
- Mr. M.P. — on his own behalf
Decision
MURRAY, E. B. J.:
Background
[1] I.K. and M.P. are the parents of one child, "John", born August 20, 2008. They separated in 2011, and engaged in bitter litigation in the Superior Court of Justice regarding "John". M. initially enjoyed a shared custody arrangement, with the child spending substantial time with him; later the court ordered that his access be supervised. At the request of the court, the Catholic Children's Aid Society of Toronto became involved in monitoring and later supervising access.
[2] The level of acrimony was high enough that in March, 2014 the Society commenced a protection application, alleging that the child was at risk of emotional harm because of the conflict. The Society asked for a protection finding and an order placing John in I.'s care, subject to supervision. The Society requested that M. obtain a psychiatric assessment, and that access to him be at its discretion.
[3] M. had been served with the Society's Application on March 17, 2014.
[4] A temporary order was made on March 20, 2014 providing that M. have no access. The court provided that M. could bring a motion with respect to access, but he did not do so.
[5] On April 29, 2014, M. advised the court that he was in the process of obtaining a psychiatric assessment.
[6] M. filed no Answer or other responding materials.
[7] On May 28, 2014, the court noted M. in default. Based on an Agreed Statement of Facts signed by the Society and I., the court made an order finding John in need of protection pursuant to s. 37(2)(g.1) of the Act, placing him in I.'s care under Society supervision for six months, and providing that access to M. be at the Society's discretion, a discretion to be exercised taking into account any recommendations from the psychiatric assessment. The primary protection concern which emerged from the evidence accepted by the case management judge was M.'s continual denigration and verbal and written attacks on I. and others he perceived as being allied with her, her lawyer, and various Society workers. This behavior often occurred in John's presence.
[8] M. did not appeal the order.
[9] In October 2014 the Society commenced a status review application, requesting a further order placing John in I.'s care subject to Society supervision. M. had not obtained a psychiatric assessment. The Society asked for the same order as to access which was made on May 28, 2014. I. supported the request. M. then filed an Answer opposing the Society's claim, and asking that the shared custody arrangement initially put in place by the Superior Court be re-instated, with legal custody awarded to him.
[10] M. still did not obtain a psychiatric assessment. Ultimately, the case management judge ordered a psychological assessment of him by Dr. Oren Amitay. Dr. Amitay was asked to address questions related to M.'s ability to understand the effect his behaviour might have on John, and his ability to modify this behavior. Although Dr. Amitay was asked to assess M. only, he posed questions to I. through her lawyer. In his report he expressed some negative views about each parent.
[11] Dr. Amitay made recommendations aimed at re-instating M.'s access. He emphasized the importance of a "zero tolerance" policy on M. using abusive or profane language related to I. or Society workers or others supporting I., and stated that M. was not to expose the child to negative comments about these people. Dr. Amitay recommended that access initially be supervised.
[12] The Society, following Dr. Amitay's recommendations, attempted to set up access for M. through Brayden Services. A meeting was convened involving M. and a Society supervisor to review the ground rules for his behaviour on access. M. refused to agree to such rules.
[13] After two attempts to reach agreement failed, the Society brought a motion requesting summary judgment on the status review application. It seeks an order placing John in the care of I. subject to Society supervision, with access to M. at the Society's discretion, "including the right to deny access". The Society advises that it remains willing to proceed to reinstate access if M. can commit to abide by Dr. Amitay's recommendations as to his conduct during visits. I. supports the motion.
[14] M. opposes. He says that there should be a viva voce trial on the status review. He says that a trial is required so that he can demonstrate that everything the Society and I. said about him that led to the May 28, 2014 order is false.
[15] On the motion I received affidavit evidence from the Society's family service worker Clarinda Cruz, from Society supervisor Ivan Balic, from I., and from M. I also reviewed Dr. Amitay's report. This is my decision on the motion.
Summary Judgment - The Law
[16] Rule 16 of the Family Law Rules (FLR) sets out provisions for summary judgment motions. The Rule was amended in 2015 to broaden the court's powers on such motions, to include powers which had been exercised under Rule 20 of the Rules of Civil Procedure (RCP) since January 1, 2010. The relevant sections of Rule 16 are set out below:
When Available
16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
Available in Any Case Except Divorce
(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.
Evidence Required
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
Evidence of Responding Party
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
Evidence Not From Personal Knowledge
(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
No 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.
Only Issue Question of Law
(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.
Order Giving Directions
(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2):
(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);
(b) give directions; and
(c) impose conditions (for example, require a party to pay money into court).
The court may also:
(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;
(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or
(c) dismiss or suspend a case because:
(i) the court has no jurisdiction over it,
(ii) a party has no legal capacity to carry on the case,
(iii) there is another case going on between the same parties about the same matter, or
(iv) the case is a waste of time, a nuisance or an abuse of the court process.
[17] The enhanced powers of the court in hearing summary judgment motions are evident in the new Rules 6.1 and 6.2.
Courts hearing summary judgment motions are now able to do what the Court of Appeal had previously directed them not to do – weigh evidence, draw reasonable inferences from that evidence, and evaluate the credibility of a witness – "unless it is in the interest of justice for such powers to be exercised only at a trial".
Courts hearing summary judgment motions may hold an oral "mini-hearing" in the exercise of these enhanced powers.
[18] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada considered Rule 20 of the RCP. Justice Andromache Karakatsanis provided a road map for a judge conducting a summary judgment motion that is equally relevant for motions made under Rule 16 of the FLR. The roadmap is summarized below:
First, "determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers". If the court finds using this approach that there is no genuine issue of material fact requiring a trial, then the court must make an order for summary judgment.
Second, if there appears to be a genuine issue requiring a trial, the judge should determine if the need for a trial can be avoided by using the new powers--powers to weigh evidence, evaluate credibility, draw inferences, and possibly receive 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.
The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.
[19] Caselaw predating the amendments to Rule 16 continues to be relevant as to basic principles that apply to summary judgment motions:
On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. (Children's Aid Society of Hamilton v. M.N.)
Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. (Children's Aid Society of Toronto v. T. (K.))
The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial will be insufficient to defeat a claim for summary judgment. (Children's Aid Society of Metropolitan Toronto v. A.(M.))
In determining whether there is a triable issue, the court should not be asked to speculate as to what evidence might be introduced at a trial. The court must rely on -- and evaluate-the sufficiency of the evidence as disclosed by the affidavits. The court is entitled to assume that each party's affidavits contain the evidence which would be before the court if the case went to a viva voce trial. (Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224; Children's Aid Society of Hamilton v. C.R.)
A submission that the evidence must be tested by way of cross-examination does not in itself give rise to a genuine issue for trial. (Children's Aid Society of Hamilton v. A.M. and T.L., 2012 ONSC 6828)
"No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant." (Children's Aid Society of the Niagara Region v. S.C., at para. 43)
Status Review - The Law
[20] S. 65 of the Act provides that on a status review the court may:
(a) vary or terminate the original order made under subsection 57 (1), including a term or condition or a provision for access that is part of the order;
(b) order that the original order terminate on a specified future date;
(c) make a further order or orders under section 57; or
(d) make an order under section 57.1.
[21] A status review is a two-step process. First, the court must consider whether the child continues to be in need of protection. Second, if the child continues to be in need of protection, then the court must consider the proper order to be made in the light of the child's best interests.
[22] The Supreme Court of Canada has made it clear that the function of a status review is not to retry the original protection hearing. Evidence on a status review is therefore normally limited to events after the order that is under review.
[23] When a court makes a status review order, it may also vary or terminate an order for access. The test is best interests. The court must presume that the original order for access was in the child's best interests. The onus on a party seeking to change an access order is to establish a material change in circumstances since that order, a change demonstrating that the access changes sought are now in the child's best interests.
[24] The best interests factors as set out in s. 37(3) are:
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 and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
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.
Evidence
Evidence at the Date of the May 28, 2014 Order
[25] The evidence accepted by the case management judge upon which the order of May 28, 2014 was based includes the following:
In October 2008, the Society opened a file after M. was charged with assaulting I. The Society verified domestic violence, but closed the file after the parties separated. There were two further brief openings for protection investigations.
In 2011 the file was again opened because the Superior Court judge managing the custody/access litigation requested Society assistance in supervising access because of concerns about the effect on the child of conflict between his parents.
M. was arrested in 2011 because of his behaviour in front of John at an access visit.
The Society recommended programs to address conflict for separated parents and their children. I. enrolled herself and the child in programs at Families in Transition. M. thought it would be a waste of time, and did not.
M. contacted the Society's counsel, warning that, "something terrible will happen to (I.) tomorrow". He later contacted police alleging that he had received an email from I. indicating to him that John was in danger with her. Police attended at I.'s home; the allegation was not verified.
Soon after, M. called police and stated that he "wished the pig had been killed", (referring to a shooting at the Brampton court house) and that he understood why someone would become so upset with court proceedings as to do this. M. said that he was having problems seeing his son due to court proceedings.
M. showed the Society worker two videos in which he told John that his mother "is a liar" and in which he pressured the child for information about I.
On one access exchange M. became angry at what he said was I.'s failure to return lunch containers he had provided. He threatened to break her door down; police had to escort her to her car. Soon after, M. kept John home from school, telling the worker that he refused to send the child to school until he received his containers back.
M., upset with I., attended at her place of employment and assaulted the husband of the dentist who employed her. He was arrested.
On two occasions M. refused to release John to I. at the scheduled time, because he felt that he was owed more time. On one occasion, he threatened to withhold the child and sent a disturbing message to I.'s lawyer. He was arrested.
In December 2013, the Superior Court judge ordered that M.'s access be supervised by the Society.
M. refused to attend supervised visits, and has not had contact with John since March 2014.
Evidence Since May 28, 2014
[26] Society worker Clarinda Cruz's evidence is as follows:
M. has continued to behave in an abusive manner to Society staff and counsel and to I.'s lawyer, frequently using obscenities. Over a 4-day period in June 2014 he sent 3,000 emails to staff.
In December 2016, M. told Society worker Connie Ianello that if he could not parent John, no one will. He telephoned Ms. Cruz, calling her a "fucking cunt". As recently as May 17, 2017, M. said to Ms. Cruz outside the court room "you fucking cunt, it's almost time for you".
As set out above, the Society proposed to re-instate M.'s access following Dr. Amitay's recommendations about conditions. It proposed to start slow, with one hour of supervised access per week. Access would be supervised by a male worker at a private agency, and the Society would pay the cost of supervision.
Supervisor Ivan Balic met with M. at home to discuss the plan. Mr. Balic stated that access could not happen if M. could not commit not to speak about adult issues, including his negative feelings about the Society and about I.
M. advised that he had a right to talk to his son about the dangers he faces in speaking to the Society, and that he would not sign any agreement with rules about his conduct on access.
Ms. Cruz forwarded the access agreement to M. on February 21, 2017. A copy of the agreement is attached to this decision as "Schedule A". The agreement provides that M. is not to speak negatively about I. or Society staff to John or act in an abusive or threatening manner during visits. M. left a voice message for Ms. Cruz advising that the agreement was "a piece of garbage" and that she should "wipe your ass with it", and that there was no way he could sign "that ridiculous document".
John is doing well in his mother's care. Reports from school are positive. I. and John attended and completed counseling at Families in Transition.
[27] M.'s affidavit contains 325 paragraphs with numerous exhibits.
Most of M.'s affidavit deals with events before the order under review, the order of May 28, 2014.
Many of the other paragraphs of the affidavit are not devoted to facts, but to argument, argument with a view to demonstrating that the findings of fact made by the case management judge on May 28, 2014 are wrong, and why the Society was wrong in seeking the order it obtained on that day. M. points out that although he has been arrested several times because of allegations about his behavior in this dispute, that he has never been convicted.
A few paragraphs of the affidavit set out M.'s evidence about his current circumstances—that he is in a stable relationship with Ms. B., that with her, he successfully parents two young children, that he maintains stable employment with the TTC, and that he is active in his community.
The affidavit also addresses the Society's investigation with respect to alleged protection concerns about his current family, and their closing of the file. M. believes that the Society was acting vengefully in this investigation.
[28] M.'s affidavit does not deny any of the allegations in Ms. Cruz's evidence set out in paragraph 26 above.
[29] M.'s affidavit also does not address whether he is willing to follow the recommendations of Dr. Amitay in re-instating access.
Analysis
[30] All parties, including M., agree that John remains at risk because of the conflict between his parents. They disagree as to the order that should be made in his best interests.
[31] Is there an issue of material fact requiring a trial?
[32] Most of M.'s evidence relates to events before the order under review. As noted above, normally such evidence is not admissible on a status review. There are occasions where such evidence may be permitted—for example, when the parties have all agreed to a skimpy statement of facts as the basis for an order, and they wish to supplement the record as to relevant facts on a status review. That is not the case here. M. did not offer evidence when the original order was made, and now wishes to retry the case. He was candid in saying that he wishes to vindicate himself, and show why the case management judge was wrong in his original order.
[33] In determining this motion, I do not consider M.'s evidence as to circumstances before the order of May 28, 2014.
[34] The evidence which remains persuades me that there is no issue of material fact requiring a trial as to what order should be made on the status review. I do not need to resort to the enhanced powers in Rule 16 to come to this conclusion. The following evidence is uncontested:
John is doing well in his mother's care.
M. has intense hostility to I., to her lawyer, and to Society workers, particularly Ms. Cruz.
When M. had access to John, he communicated these views to the child. He has expressed that he has the right to continue to express such views to John.
M. has not had contact with John in over 3 years.
Psychologist Dr. Oren Amitay assessed M. He recommended that the Society attempt to reinstate access on a supervised basis if M. would comply with some simple rules, such as not making negative comments about I. or Society workers and not using abusive and profane language.
M. refuses to agree to such rules.
[35] M.'s evidence that he has a stable family and successfully parents two younger children does not lead to the conclusion that a trial with respect to John's care or his access to John is necessary. With the exception of the birth of M.'s youngest child, this was the situation at the time of the May 28, 2014 order. While M. may be able to co-parent well with Ms. B., it is M.'s actions with respect to John, and M.'s failure to prioritize the child's interests over his desire to "win" in his conflict with I. that led to the original order of May 28, 2014. There is no evidence that would indicate that M.'s views in this respect have changed.
[36] Given M.'s behavior during visits at the time of the last order and the lengthy period of time since John has had contact with his father, there is no doubt that supervision (coupled with some commitment from M. as to his behavior) is required if visits have a chance of being successful.
[37] If a trial was ordered and the evidence properly admitted on a status review was heard, there is no reason to think that the result could be any different than the order requested by the Society.
[38] My order is that John remain in I.'s care pursuant to Society supervision and the conditions in the Notice of Motion for a further six months. Access to M. shall be at the Society's discretion, including the right to deny access.
[39] I urge M. to reconsider his position, and agree to conditions that will permit supervised access to begin, with a view to normalizing John's relationship with him.
Released: October 24, 2017
Signed: Justice E. B. Murray
Footnotes
[1] Pseudonym used
[2] Catholic Children's Aid Society of Metropolitan Toronto v. C.M., 2 S.C.R. 165
[3] Catholic Children's Aid Society of Metropolitan Toronto v. C.M., supra.
[4] Children's Aid Society of the Niagara Region v. W.D., 2003 O.J. 3202 (S.C.J.)
[5] Children's Aid Society of Algoma v. B.(A.), 2012 ONCJ 351