Court File and Parties

Ontario Court of Justice

Date: October 30, 2017

Court File No.: Halton 469/13

Between:

M.A. and M.E.A. Applicants

— AND —

E.A. Respondent

Before: Justice Marvin Kurz

Heard on: April 3, 20, July 4, July 17, September 26, 2017

Reasons for Judgment released on: October 30, 2017

Parties:

• M.A. and M.E.A. ........................................................................................ on their own behalf
• E.A. ................................................................................................................. on her own behalf

KURZ J.:

OVERVIEW

[1] Shakespeare's King Lear used the simile of a serpent's tooth to describe his feelings towards the adult children with whom he was in conflict. Sharper still, perhaps is the conflict between parents and their child over a beloved grandchild. That is the sad case here.

[2] MA and MEA (collectively "the grandparents") are the maternal grandparents of AEA, born […], 2011 ("the child"). Their daughter, EA ("the mother"), is AEA's mother.

[3] The grandparents and mother each seek custody of AEA. With full love for the child, each attacks the parenting of the other, saying that their plan is best for the child. Unable to agree or find a way to get along, they leave it to the court to decide. Each wants sole custody of the child. Happily, each is willing to agree to regular access by the other.

[4] This matter came before me as a motion for summary judgment brought by the grandparents. This case, commenced in 2013, had still not reached trial.

[5] The grandparents assert that they have been AEA's primary caregivers virtually all of her life; in any event, they have been the sole legal caregivers for the past three plus years. Theirs, they say, is the only home that AEA really knows. They assert that they have a stable marriage and home; one filled with family and love. They have raised three children.

[6] The grandparents add that the mother has led an itinerant and unstable lifestyle, one filled with partying, numerous male partners, brushes with the law, daily marijuana use and irresponsibility towards AEA.

[7] The mother says that she was AEA's primary caregiver for the first few years of her life. During that time, she sought the assistance of her parents to raise the child in their home. Only when she was ready to move on and out with AEA did her parents surreptitiously begin this proceeding with an ex-parte motion. At that time the grandparents had her evicted from their home under an ex-parte order, tried to replace her as AEA's parents, and moved to exclude her from the child's life.

[8] The mother has a partner, JG, and another child, RG, now. She points to them as proof of her stability. She wants AEA to grow up together with RG. She feels that, as the mother, she offers what is best for AEA. She should not be denied the chance to parent her child and reunite her family. She feels that she has always been ready to assume full time care of AEA. Should she succeed, she would not take AEA away from her parents. But they would assume their rightful role as grandparents and access holders only.

[9] The only independent evidence offered at this motion came from Roy Reid, a social worker and clinical investigator for the Office of the Children's Lawyer ("OCL"). In two separate detailed reports, one dated August 20, 2014 and the other dated December 15, 2016, Mr. Reid recommends that the grandparents have custody of AEA, subject to broad access by the mother.

[10] After reviewing the materials provided to me by the parties and Mr. Reid's two OCL reports, I felt that without going further, they raise a genuine issue for trial. But I went on to decide that I needed to use my enhanced powers under rule 16 (6.1) of the Family Law Rules ("FLR") to determine whether a trial could be avoided at this stage. Those powers allow me to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence.

[11] I further exercised my discretion to hold a mini-trial under FLR r. 16(6.2). Under that process, evidence in chief was provided by affidavit and the parties were entitled to cross examine each other. My additional authority to do so is found under FLR r. 1(7.2) (g), (i) and (j). Together they allow for evidence to be given by affidavit and for the court to place time limits on oral evidence. Each party was entitled to cross examine Mr. Reid.

[12] For reasons that follow, after utilizing its expanded powers, this court finds that there is no genuine issue for trial. I am able to arrive at a fair and just result based on the evidence before me in the mini-trial process. Accordingly, I grant summary judgment and sole custody of AEA to the grandparents, subject to the access by the mother set out below. I find that the grandparents' plan is the one that has and continues to offer the greatest level of stability and security for the child, and ultimately is the one in her best interests.

BACKGROUND

[13] EA is one of three children of the grandparents. Her two adult brothers, GA and AA, along with AA's wife, NA, still live with the grandparents. So too do AEA, and EA's maternal grandmother, her "nana". EA cohabits with her common-law partner of about two years, JG. They have a baby son named RG. JG is self employed as a window cleaner. EA has a business as a house cleaner but she is presently a stay at home mother for RG.

[14] This conflict has divided the A family. Where once she was very close to GA, EA told her probation officer that she has not spoken to her brothers in four years.

[15] EA had a difficult adolescence. She did not do well and felt bullied in school. She suffered from a variety of maladies including a learning disability, anxiety and anorexia. When she was in grade 11, after a great deal of conflict over her behavior and substance use, EA left home. She went to live in or around Atlanta, Georgia with a boyfriend. She was there for two years. Her parents believe that she was involved in the sex trade but she absolutely denies it. She told a probation worker that she worked as a model during that time. The grandparents also assert that she was in trouble with the law, another claim she denies.

[16] However after two years, EA contacted her parents to request help getting home. She told them that she had been arrested by Georgia police and wanted help being released from jail. She later claimed in response to the grandparents' request to admit, that she

…made it [the allegation of trouble with the law in Georgia] up because she did not believe that her parents would help her get home otherwise.

[17] The grandparents claim that they heard directly from the Georgia police that the mother was in jail at the time. They produced copies of documents that resulted from EA's arrest on charges of Obstruction of Police Officer and Possession of a Knife with a Locking Device/Blade.

[18] One such document was the "violator's copy" of a "Uniform Traffic Citation, Summons and Accusation" issued by the City of Riverdale, Georgia Police Department. It cited EA for the Obstruction charge. They also produced a "City Appearance Bond", which is essentially a bail document, for each of the two charges. In those documents, dated November 18, 2008, EA pledged to appear in the City Court of Riverdale, Georgia on January 15, 2008 to face the obstruction and weapon charges.

[19] Despite her denials, the mother was unable explain or deny those documents away. The grandparents said that they received them from EA herself. For reasons set out below, I believe them. The grandparents sent EA money to return home to Ontario.

[20] After her return, EA lived with her parents and siblings and went to work. She then became involved with AEA's father, MS. The grandparents say and the mother does not deny that he was abusive to her. She lived on and off with MS on two occasions before AEA's birth. Each time she returned to live with her parents after an argument with MS. She worked during most of her pregnancy.

[21] After AEA was born, the mother received financial assistance from Ontario Works. She paid her parents rent of $400.00 per month.

[22] The parties hotly dispute the mother's role in caring for the child and who was responsible for the child's primary care when they all lived together. The grandparents say that they wanted the mother to care for the child but that she was uninvolved, irresponsible and impatient with the child.

[23] The grandparents told Mr. Reid of times when AEA's expressions of hunger would be met by being sat in a high chair and given a hot dog. EA's brother, AA, told much the same to Mr. Reid; saying that his sister's idea at the time of breakfast for the child was a banana.

[24] The grandparents spoke of EA becoming so impatient with AEA after the child was upset for five minutes that she told the infant to "shut up." They said that MEA was the one who signed AEA up for dance and swim lessons. Even when they both took her swimming, the mother would not get in the pool with the child, leaving that role to the grandmother.

[25] The parents also raised the fact that the mother would go away every weekend, leaving AEA with them. They said that she would spend the weekend, from Friday to Sunday or Monday, partying with friends.

[26] EA's brother, GA told both Mr. Reid and the court that his parents were always AEA's primary caregivers. He spoke of his sister as an inconsistent parent to the child. He confirmed EA's weekend absences. He also spoke of how the whole A family is involved in raising AEA in their home. This testimony was buttressed by what AA and NA told Mr. Reid.

[27] The mother denied most of what her parents and siblings said about her parenting. She feels that she has grown up a great deal since she became a parent. But her parents do not recognize the changes in her. They still see her as the same troubled teenager with ADD that she was as a youth. Ironically, in many ways the parents agree: They believe that she remains troubled and irresponsible.

[28] The mother strongly asserts that when she and AEA lived together with her parents, she was the child's primary caregiver. She told Mr. Reid, that she actually had minimal assistance from her parents during that period.

[29] It must be noted that this statement is belied by her admission to Mr. Reid that after she began dating one of her past boyfriends, AK, she would go away on weekends with him, leaving the child with the grandparents. The mother defended that pattern of behavior by saying that her parents wouldn't allow her boyfriend or other friends in their home. She complained that her parents did not deny that privilege to her brothers. In any event, she said that she would put AEA to bed Friday night and then return Sundays by noon. She felt that she had her parents' consent to do this. The parents said that she was gone for the entire weekend.

[30] The mother told Mr. Reid that she was unaware that her parents had any concerns about her parenting until just before they commenced this proceeding in 2013. She felt that they had consented to her weekend excursions with her boyfriend. Yet she also stated that there was tension between her and her parents every time that she wanted to take AEA with her outside of the home.

[31] The mother's narrative of her parenting finds some support in the comments of her and AEA's doctors to Mr. Reid in 2014. Dr. Santina Andrighetti, who was presumably her obstetrician (Mr. Reid does not say), reported that the mother had engaged in necessary pre and post-natal medical care while pregnant with AEA. While Dr. Andrighetti asked her to stop smoking during pregnancy, she still smelled of smoke during her appointments.

[32] AEA's doctor and EA's family doctor, Dr. Vic Sahota, told Mr. Reid in 2014 that both the mother and grandmother brought AEA in for checkups. EA did so the majority of times until temporary custody was changed. MEA did so "on occasion". He noted that the mother had used marijuana since she was a teen. He described the mother as attentive to AEA, but believed that there was room for improvement in regard to certain areas of judgment.

Mother's History of Police Involvement

[33] The grandparents point to numerous reports of police involvement by the mother in arguing that she has been and remains unstable. Mr. Reid's two reports cite reports from various police departments. They show numerous interactions between the mother and police. Yet despite her many interactions and some arrests, EA has only one conviction, for assault with a weapon in 2016.

[34] Not all interactions between EA and the police are relevant to this proceeding. I only include the ones that seem relevant. While the contents of Mr. Reid's reports are admissible for reasons and in the manner set out below, I have also removed his references to double and triple hearsay. I also recognize that most of EA's previous interactions with police did not result in convictions. I cite them for two reasons. First, they are relevant to a pattern of conduct relevant to maturity and stability rather than criminality. Second they are relevant to credibility with regard to the issue of the Georgia arrest records described below.

(a) While in high school, EA was charged with Obstruct Police for interfering with a police arrest following an incident at the school. She was also charged with possession of a controlled substance: marijuana;

(b) On December 19, 2009 a warrant was issued for her arrest when she failed to attend court. She was subsequently arrested on January 15, 2010;

(c) On March 2010 the mother was charged with theft under in regard to an alleged shoplifting at a Zellers store.

(d) On October 14, 2010 police were called when the EA's boyfriend of about a year was harassing her while residing with her parents. The grandfather called the police to protect her since she wanted no contact with him. She was about twenty weeks pregnant.

(e) On April 17, 2011 the police were called to a hotel after EA was involved in an argument with a boyfriend of a few months named KN. At the time, AEA was just over a month old.

(f) On August 29, 2011 the police were called to the home that the mother and grandparents shared. AEA was about six months old. There was disagreement between the mother and someone who was staying over, who was presumably her friend. There was also a disagreement between her and her parents about a lack of respect for this friend by her family. She expressed the view that if this were to continue she would move out.

(g) On March 20, 2012 the mother called the police to report that her phone had been stolen at a house party. It was her third report of a stolen phone.

(h) On October 23, 2012 MA reported to the Halton Regional Police (HRP) that AEA's father, MS, had been making a number of unwelcome phone calls to their home. The mother did not wish to speak to him.

(i) On May 20, 2016 the mother was arrested on charges of Possession of Weapon for a Dangerous Purpose, Assault, Assault with a Weapon, Utter Threat.

[35] The mother ultimately pled guilty to one charge of assault with a weapon. The weapon was an axe. It should be noted that she initially told the court during this motion that the charges were withdrawn. She previously told Roy Reid during the course of his second investigation, in late 2016, that she had not had recent contact with the police.

[36] On October 10, 2017, Justice Alan Cooper of this court convicted the mother of assault with a weapon. He granted her a 12 month conditional sentence. This appears to be the result of a plea agreement that led to the dropping of all other charges. The terms were the standard ones: to keep the peace and be of good behaviour, appear in court and report as directed, as well as to have no contact with or be within 50 meters of two individuals. Further she was to attend and actively participate in all assessment, counselling, or rehabilitation programs as required by her probation officer.

[37] This was her first conviction. The mother expressed great remorse when discussing this conviction with the court.

Halton Children's Aid Society Records

[38] Mr. Reid reviewed the records of the Halton Children's Aid Society ("HCAS") regarding this family. The HCAS opened a file on October 23, 2013. It opened its file after the grandparents attended their office to report their conflict with the mother. They spoke about many of the matters set out above, including the mother going away for full weekends and leaving AEA in their care. They reported that they were afraid that the mother would run away with the child.

[39] An HCAS worker interviewed AEA. The worker felt that the child was friendly, talkative and possessed of a vocabulary that belied her age. She appeared to the worker to be very attached to MEA. However AEA did not mention doing any activities with her mother. The child did not speak of her mother at all, even when prompted.

[40] An HCAS worker also met with the mother. She denied much of what her parents said. She spoke of women being treated like "shit" in her father's culture and of her father hitting her as a child. She felt that her parents kept her siblings in their home and would not allow them lives of their own. She wanted a better life for herself and AEA, independent of her parents.

[41] In Mr. Reid's words, "[s]he admitted that she used to get into a lot of trouble and do drugs but she has been trying to turn her life around and going back to school and trying to make herself better."

[42] On November 18, 2013 the HCAS closed its file because the grandparents had obtained temporary custody of the child and the courts were adjudicating the dispute.

[43] The grandparents began this proceeding with an ex parte (without notice) motion for custody of the child and a restraining order against EA and MS. That relief was granted by Justice Rosalyn Zisman of this court on November 6, 2013. On that day she actually issued three orders: a custody order in favour of the grandparents which also forbade the mother from removing the child "… from any location at which she may be", and separate restraining orders against each of the mother and MS.

[44] The ex parte motion returned to court on November 22, 2013. Zisman J. requested OCL involvement. On reviewing the materials filed by the mother and grandparents, Zisman J. essentially upheld her ex parte order, granting the grandparents joint custody of AEA. The mother was granted supervised access to the child at least once weekly at a supervised access centre. This term was without prejudice to the mother's right to later seek increased access. MS was allowed no access. The mother and MS were again forbidden from removing the child from any location at which she may be.

[45] MS was noted in default on March 5, 2014.

[46] On April 8, 2014 Zisman J. made a with prejudice access order after hearing a contested motion. She granted the mother day access for seven hours each Saturday. Pickup and delivery was to be at the Burlington Supervised Access Centre. If the access center was unable to accommodate the access changeovers, other locations were named. The mother's access was subject to a number of conditions, including:

• no alcohol,
• no smoking,
• all access to be in Halton,
• a proper car seat for AEA,
• the driver to be approved by the grandparents,
• proper diaper bag and clothing, and
• no adult conflict during access.

[47] The matter was adjourned many times while awaiting Mr. Reid's first report. It was issued on August 20, 2014. It called for the grandparents to have custody of the child and the mother to have specified access. I will have more to say about that report later in this decision.

[48] The settlement conference for this case began on March 3, 2015. It was adjourned to June 12, 2015 to allow the parties to further consider their options and consider settlement. When the matter returned to court on June 12, 2015, the mother had dismissed her lawyer and was acting for herself. She requested yet another adjournment. Justice Victoria Starr scheduled both settlement and trial management conferences. The latter was before O'Connell J., the prospective trial judge. Starr J. also ordered the mother to produce certain disclosure.

[49] On August 31, 2015 Starr J. noted that the mother had taken few of the steps she was to take in the intervening 2½ months. She did not retain new counsel or provide the disclosure ordered. She was assessed costs of $350.00. Because the grandparents wanted to proceed in any event, the case was sent to a trial management conference on September 23, 2015.

[50] The September 23, 2015 trial management conference was adjourned to November 23, 2015 because the mother had just hired new counsel, Maria Sirivar. On December 2, 2015, trial dates were scheduled for one week, commencing April 22, 2016. A further settlement conference was scheduled for February 1, 2016 and a trial management conference before me was set for March 1, 2016. The parties also agreed to a without prejudice Christmas holiday access order.

[51] On December 2, 2015 the parties agreed to a without prejudice order regarding Christmas access that included one 24 hour overnight visit. The order contained a number of stipulations, including that the mother not remove the child from Halton or leave her with a third party during access.

[52] On February 1, 2016 I adjourned the trial date to the October, 2016 trial sittings. I did so because the mother advised the court that she had been diagnosed with cervical cancer and that she would be required to undergo surgery that month. She stated that her prognosis was unknown. In adjourning, I ordered that the mother provide medical proof of her diagnosis, course of treatment, and whether either would affect her parenting ability. I have yet to see that evidence.

[53] I also requested the Office of the Children's lawyer to become involved again. This led to Mr. Reid's second investigation and report.

[54] On September 9, 2016 the mother's lawyer revealed that something had arisen that requires her to immediately move to remove herself from the record. I allowed that relief 11 days later. For that reason I was forced to vacate the October, 2016 trial dates. On October 24, 2016 I granted the grandparents an order on consent calling for broad disclosure from the mother, including police records.

[55] On December 20, 2016, Mr. Reid issued his second clinical investigation report. Mr. Reid's recommendations echoed those of his previous report. The major change was his call for twice weekly overnight access rather than thrice weekly access for four hours.

[56] On January 20, 2017 I was again forced to adjourn the trial management conference. I granted the grandparents leave to bring this summary judgment motion. I also ordered the mother to provide the previously ordered disclosure by March 8, 2017, at latest.

[57] On April 3, 2017 I was forced to adjourn the first scheduled day of this motion because of problems with the mother's materials. After having reviewed the parties' affidavits I determined:

…that I cannot decide the issues raised in the motion without recourse to my expanded powers found in r. 16(6.1). In order to exercise those powers I order that oral evidence be provided by the parties in accord with r. 16 (6.2) . The affidavits filed to date for this motion will form the evidence in chief of the parties. The same will be true of the affidavit of GA. The two reports of OCL social worker, Roy Reid, will form his evidence in chief. Each of the parties will be entitled to cross examine [all witnesses on a time limited schedule].

I also requested the Family Law Information Centre and the duty counsel office to assist the mother to understand the court's procedures.

LAW

Custody and Best Interests

[58] This court's jurisdiction to deal with the issue of custody is found in the Children's Law Reform Act ("CLRA"). Under s. 21(1) of the CLRA "[a] parent of a child or any other person" may "apply to a court for an order respecting custody of or access to the child …"

[59] Pursuant to CLRA s. 24 (1), the merits of an application for custody or access will be determined by the best interests of the child. CLRA s. 24 (2) sets out that a court shall consider all of the child's needs and circumstances in order to determine his or her best interests. They include:

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[60] Determining what is in the best interests of a particular child is specific to the circumstances of that child and family. As Chief Justice Beverly McLachlin of the Superior Court of Justice noted in Gordon v. Goertz:

Each case turns on its own unique circumstances and the only issue is the best interests of the child in the particular circumstances of the case.

The focus is on the best interests of the child, not the interests and rights of the parents.

[61] While this is an application at first instance rather than a motion to change, I have to be acutely aware of the status quo. AEA has been in the grandparent's temporary custody and primary care for more than the past three years. She has lived most of her life with them. As Justice Leonard Ricchetti of the Superior Court of Justice pointed out in Jackson v. Arthur:

The courts have traditionally given weight to the parenting arrangements in place at the time of the court's determination of the issue, be it at the interim stage or the final stage. Generally, courts are reluctant to change existing child care arrangements that are working to a child's benefit. See N. (M.) v. B. (M.) (2000), 9 R.F.L. (5th) 359 (Ont. Sup. Ct. J.).

[62] That being said, Ricchetti J. adds that:

… the status quo is only one factor to consider in the context of the best interests of the Children.

[63] The comments made by Justice Bora Laskin of the Ontario Court of Appeal (as he then was) 46 years ago in Papp v. Papp remain true today. He stated that when the court considers a change of a custodial status quo, whether at a motion or at trial:

It may be taken as a working rule that evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits. But, as in custody after trial so in respect of interim custody, the welfare of the children is the paramount consideration; and any difference in the required weight of evidence is a matter of degree and not of kind. The conduct of the parties inter se may not as such have any bearing on custody, let alone interim custody; but if it offers any assistance on how the children are likely to fare in their material and moral upbringing in the hands of the one parent or the other, it has relevancy.

[64] Nonetheless, as Budgell J. of this court concluded after a review of the applicable case law in Latondress v. Cooper:

…where a custodial parent acts inappropriately and continues to act inappropriately, serious consideration should be given to changing custody.

[65] As Zisman J. of this court points out, the principle of maximum contact, enshrined in the federal Divorce Act but not specifically articulated in the CLRA, applies to cases under that provincial legislation. As she added:

It is well accepted that it is in a child's best interests to have a loving and meaningful relationship with both parents. A child should be given the opportunity to know the non-custodial parent and to be a part of that parent's life and to have as much contact as is consistent with his best interests.

[66] In Weare v. Naumann, Justice P.T. Bishop J. of this court found that a disrespect for court orders and a history of unreasonable decisions, such as moving a child or entering into a relationship to live out a "fairy tale life", are reasons to change a custodial status quo. It can equally be a reason to maintain such a status quo.

[67] In Figliano v. Figliano, Mesbur J. made clear that the custodial views and preferences of three children between 7 and 11 years of age are not determinative. They may not even reflect the child's true wishes. They are just one factor for the court to consider in making its decision. As she wrote:

I want to make clear at the outset that the children do not have to choose which parent to live with. That is not their job. It is their parents' responsibility to make that decision, in their best interests. When their parents cannot agree, then the responsibility falls to the court. My role is to take on that task, and to make the decision of what is best for the children. Their wishes are only one factor to consider. What children say they want is not necessarily what is best for them? What children say they want does not necessarily reflect their real wishes. It is important that both of the parents, the children, and both extended families understand this.

Principles on a Motion for Summary Judgment

[68] Under r. 16 (1) of the Family Law Rules ("FLR"), ether party may bring a motion for summary judgment for a final order without the requirement of a trial. That motion can be brought on all of part of any claim made or defence presented in the case. The test for such a motion is whether the evidence discloses a genuine issue requiring a trial of a claim or defence.

[69] The term "no genuine issue for trial" has been variously interpreted to reflect the notion that the responding party cannot possibly succeed, even if granted the right to a full trial. Among the terms that have been used to describe the test are the following:

• "no chance of success", or
• "plain and obvious that the action cannot succeed", or
• "manifestly devoid of merit", or
• "the outcome is a foregone conclusion", or
• no realistic possibility of an outcome other than that sought by the applicant.

[70] 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.

[71] Each party to a motion for summary judgment has an obligation to "'put its best foot forward' with respect to the existence or non-existence of material facts that have to be tried".

[72] The onus for proving that there is no genuine issue for trial rests with the moving party.

[73] In response to the evidence of the moving party, the responding party may not rest on mere allegations or denials but shall set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial. In the oft-repeated maxim of Justice Coulter Osborne of the OCA, the responding party to a motion for summary judgment must "lead trump or risk losing".

[74] In other words, once the moving party discharges the burden of showing that there is no genuine issue for trial, the onus shifts to the responding party to provide evidence of specific facts showing that there is a genuine issue requiring a trial. An adverse inference may be drawn from a failure to support the allegations or denials in a party's pleadings.

[75] On a motion for summary judgment, the court is required to take a hard look at the merits of the case. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order. If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

[76] If the court does not make a final order, or makes an order for a trial of an issue, the court may also specify what facts are not in dispute. It may further state the issues and give directions about how and when the case will go to trial, and impose conditions, if appropriate.

[77] In determining whether there is a genuine issue for trial, the court shall consider the evidence submitted by the parties. In addition, it may use its expanded powers under subrule 16 (6.1), which reads as follows:

Powers

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

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

[78] In exercising its expanded powers, the court may hear oral evidence from one or more of the parties, with or without time limits, in the form of a mini-trial.

[79] Under FLR r. 16 (5), hearsay evidence (or in the words of the rule, "…evidence … not from a person who has knowledge of the facts in dispute…") is admissible on a summary judgment motion. However FLR r. 16 (5) states that the court "may" draw a "conclusion unfavourable" to the person relying on the hearsay. There is some controversy in the case law as to whether the evidence relied upon must be "trial worth", or in other words evidence that would be admissible in a trial. The issue of admissibility of hearsay evidence was not raised in this case.

[80] In Hryniak v. Mauldin, the Supreme Court of Canada set out the process to be followed in applying the expanded civil summary judgment rules:

1. The court will first consider whether there is a genuine issue for trial based only on the evidence before the court. This decision is made without exercising the court's expanded powers.

2. But if there appears to be a genuine issue for trial, the court shall then determine whether the need for a trial can be avoided using those expanded powers. That decision is a discretionary one. But the court shall not exercise its discretion if doing so would be against the interests of justice.

3. The exercise of the expanded powers will not be against the interests of justice if it would lead to a fair and just result; one that serves the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[81] These new rules expand the number of cases in which there will be no genuine issue requiring a trial. They do so by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences. I have considered the principles articulated in par. 44 - 78 of Hryniak.

[82] In keeping with the principles set out in Hryniak, the court must also consider subrules 2 (2) - (5) to ensure that a case is dealt with justly. It does so by ensuring that the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity.

[83] The case law dealing with summary judgment under the Rules of Civil Procedure also apply to such motions under FLR r. 16. In fact, as Justice Michael G. Emery of the SCJ stated in Afolabi v. Fala, reflecting on the application of the Hryniak principles to family law before the expansion of judicial powers under r. 16:

If anything, family law in Ontario cries out for the summary disposition of issues in appropriate circumstances as much as in any other area of law. This accessibility to timely, affordable justice is as important to the parties in conflict as it is to the confidence of citizens in our court system that cases will be adjudicated efficiently and effectively according to law.

[84] One further note regarding summary judgment: subrule 16 (6) is mandatory when it states:

If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [emphasis added]

[85] The subrule does not say that a final order can only be made in favour of the moving party. As Justice Paul Perell of the SCJ pointed out in Kings Loft I Ltd. v. Emmons, if a court dismisses the moving party's summary judgment motion, it may nonetheless grant summary judgment to a responding party. The court may even take that step when the responding party has not brought its own cross-motion for summary judgment. Perell J.'s decision was upheld by the OCA.

[86] In making his decision, Perell J. relied on the OCA's "full appreciation" test enunciated in Combined Air Mechanical Services Inc. v. Flesch. The reason for that decision was overturned by the SCC in Hryniak. In doing so, the SCC replaced the more onerous "full appreciation" test with a three part test of whether the summary judgment motion:

1. can achieve a fair and just adjudication,
2. provide a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and
3. is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[87] Karakatsanis J. called for summary judgment rules to be interpreted "…broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims."

Evidence in OCL Reports

[88] In George v. Nguyen, Justice Victoria Starr of this court considered the admissibility of out of court statements found in the reports of clinical investigators for the Office of the Children's Lawyer, like Mr. Reid. She found that if the statements were not formally challenged, they are presumptively admissible as if original evidence tendered at court. They are not treated as hearsay. Starr J. stated:

13 I have decided that, unless the evidence of the [OCL s. 112] clinician with respect to an out of court statement made to her is [formally] challenged, any out of court statement made to an OCL clinician by any person who does not also testify at trial, including a child, is presumptively admissible as if that third person gave that evidence at the trial. In other words, the out of court statements the OCL reports as having been made to him or her, are presumptively admissible as if original evidence.

14 I have come to this conclusion based on a comparison of the differential treatment in the relevant legislation and rules, of reports of the Office of the Children's Lawyer made pursuant to section 112 of the CJA, and the report of an expert assessor appointed pursuant to section 30 of the CLRA. I have also considered the purpose of an OCL investigation and the important role these reports play in promoting the primary objective of the Family Law Rules, O Reg 114/99, (the Rules).

[89] I add that the same comments apply to the business records upon which the OCL investigator relied upon in preparing his report.

[90] I note that Starr J. made these comments in the context of a trial. FLR r. 16 (5) opens the door to Mr. Reid's references to those business records somewhat further. However I draw the line where Mr. Reid's report offers double or triple hearsay, for example from a police or child's aid society business record. In those cases, I ignore the hearsay evidence as I find it too remote and unhelpful to the adjudication process.

ANALYSIS

Credibility

[91] Under r. 16 (6.1) (2), I am entitled under my expanded powers in this motion to consider credibility. There were many credibility issues between the mother and the grandparents.

[92] Where their testimony conflicts, I accept the evidence of the grandparents because:

1. The mother either spoke untruly or changed her evidence or said things that are manifestly untrue on more than one occasion. For example:

(a) EA called her parents from Georgia, USA when she was about 18, and two years after she had run away with a boyfriend. She told them that she was arrested there and needed money to come home. The grandparents sent her the money. She now denies that she was ever arrested. This claim is not credible because:

i. When the grandparents asked her in their request to admit to admit to concede that she had been arrested in Georgia, she refused to do so. She said instead that that she lied to her parents about her arrest in order to convince them to send her money to come home. The only issue then is which of her lies to believe.

ii. During cross-examination the grandparents actually confronted EA with copies of her Georgia arrest records, which she was unwilling to admit were accurate and unable to explain. MA says that he received them from EA. That claim is believable. EA's denials are not. The grandparents could only have come upon those records through EA. The records are admissible under the "statements in documents" exception to the hearsay rule, Ares v. Venner and r. 16(5).

iii. EA's story that she could not have gotten her parents to send her the money to come home if she lied about her arrest is not believable. The parents took EA back many times before they started this proceeding in 2013.

iv. I have to note that this was not the first or only time that EA has been arrested as set out above.

(b) The mother said that she was the child's primary caregiver while living with her parents. Yet:

i. She admitted to Roy Reid that she stayed out overnight during the weekends, leaving AEA with her parents from Friday night until Sunday (the grandparents say that she was away even longer). That in itself is inconsistent with her primary care of the child.

ii. Further, the mother claimed that her parents approved of this weekend away arrangement. Considering the fraught relationship that they had, the grandparents' long standing concerns about her partying lifestyle and their concern with her leaving the parenting to them, the mother's claim is simply not credible. It is inconsistent with her other claims about their narrow views of her life choices and relationships.

iii. The grandparents' narrative of EA leaving for full weekends is supported by EA's brother GA and sister in law.

iv. More importantly, so too was their claim that they were AEA's primary caregiver while she lived with them. The other members of the A family confirmed the grandparents' narrative. Admittedly they are not impartial. But EA has offered no witnesses or evidence, to confirm the validity of her view.

v. Admittedly EA's narrative finds some support in the comments of Dr. Vic Sahota to Mr. Reid that the mother brought AEA to see him more regularly than MEA (who only brought the child "occasionally"). Dr. Santina Andrighetti spoke of the mother coming in for all of her pre-natal exams while pregnant. Yet even the evidence of these doctors serves to impugn the mother's credibility.

vi. As stated above, the mother told Dr. Andrighetti that she had quit smoking, but came to the medical office smelling of smoke. This after the doctor told her not to smoke during pregnancy. She also denied drug use to Dr. Andreghetti but told Dr. Sahota that she had smoked marijuana since she was a teenager.

(c) The mother originally told the court that the 2016 criminal charges against her were withdrawn, when she actually plead guilty to a serious crime: assault with a weapon.

(d) The mother could have called her partner, JG, to testify and support some of her claims, particularly as to her recent conduct. But she failed to do so.

[93] On the other hand, I found that the grandparents' evidence was internally consistent, that their evidence supported each other, and that the evidence of GA also supported their evidence (as did the statements by AA and NA to Mr. Reid). There were no instances where I could see that they misstated the facts.

Best Interests of Aryana

[94] In considering all of the evidence in the hearing I find that there is no genuine issue requiring a trial as to the parenting arrangements (both custody and access) that are in AEA's best interests. Although the "full appreciation" test is no longer applicable to summary judgment motions, I have likely heard and read all of the evidence that all of the parties would have presented in a trial.

Sole Custody

[95] I find that it is in AEA's best interests to be placed in the sole custody of the grandparents for the following reasons:

1. They have been her primary caregivers for almost all of her life. They have been her sole custodial parents since November 23, 2014, almost four years ago.

2. They offer her a far more stable and secure home than the mother. They have lived in the same home with the same people for all of AEA's life. They have lived in the same home for about ten years.

3. On the other hand, the mother has moved numerous times. From what I can discern from the evidence, she has lived:

i. With her parents until she was about 16 years old, then

ii. Moved to Atlanta with her boyfriend;

iii. Moved to another address in Georgia without her boyfriend;

iv. Returned to her parent's home;

v. Moved out to reside with AEA's father, MS. She told Mr. Reid that she moved in with him shortly after they began to date;

vi. Returned to live with her parents after a fight with MS;

vii. Then returned to live with MS again until they had another fight;

viii. Then returned again to live with her parents. While there she had to call the police on MS as he was making verbal threats to her and her unborn child.

ix. She remained with her parents until evicted by the Zisman J. order of November 6, 2013;

x. Moved out to live in Barrie. She lived there with AK, beginning in February, 2014. It is not clear where she lived between November 6, 2013 and February, 2014. The relationship with AK presumably ended in 2015 as the mother stated that she began her relationship with JG that year;

xi. Moved to […] Road […], Ontario with JG;

xii. Moved to […], Ontario in May 2016 with JG;

xiii. Then moved back to […] in 2016 with JG, where she now lives. That was her third address in eight months

The mother advised Mr. Reid that she would like to move again, to the country, if granted custody of AEA.

4. While the mother has been together with JG for two years, the residential history set out above has shown an inconsistency in her cohabitation arrangements. She has cohabited with three different men in the approximately seven years since she became pregnant with AEA.

5. While the mother has attempted to grow into a mature and responsible adult, her behavior continues to raise concerns. Only last year, she got into a dispute with her landlord that led her to assault him with an axe.

6. While the mother speaks of a steady, secure and loving relationship with JG, he was convicted of assaulting the landlord in the same 2016 incident. Further the court knows little of the man who would become an important caregiver to AEA.

7. Throughout much of her testimony, the mother tended to downplay her responsibility for her actions. She tended instead to blame her parents for many of the choices that she made in her life, including her adult life. One example was her decision to go out partying weekends, leaving AEA with her parents. She blamed them for not letting her boyfriend stay over at their home, and then claimed that they approved of her practice. She saw her parenting at that time as fine when there is no evidence that anyone else did so. The only regret that she expressed was with regard to her assault charges, which could not be denied.

8. While it is important for AEA to know her brother, RG, she has and can do so through her access.

9. The mother still has unresolved anger towards her parents that leads to conflict with them. I do not believe that they could co-parent in any way. Neither party seeks that result. To be fair, I do not find that the grandparents have been open to the notion that their daughter has made any real progress in becoming more mature and responsible. When I confronted MA with that issue during his submissions, he pointed to the serious criminal charges that led to the mother's conviction for assault with a weapon. His point was that it is difficult to claim that the mother had made great strides when she and her partner get into a physical fight with their landlord and she attacks the man with an axe.

10. Despite their concerns with the mother's maturity, the grandparents have allowed her and AEA to develop a real and substantial relationship. There is no reason to believe that that will change after this case is over.

11. On the other hand, I am not convinced that once this case is completed, the mother will be able to do the same. I note that AEA told OCL clinical investigator, Roy Reid, in Mr. Reid's words "that one day her mother said that she was going to run away with her".

12. Mr. Reid, an experienced social worker and OCL clinical investigator, has provided the court with two s.112 reports. Both called for the grandparents to have sole custody. In his most recent report, he stated that:

[t]here is no evidence at this junction that would support a change in the current custody or residential arrangement. AEA is a healthy, thriving five [now six] year old who has loving and caring grandparents and an established home environment and routines, including school and extracurricular activities.

13. I note that the mother uses marijuana daily. She says that she does so to assist her appetite and to help her sleep. She says that she never does so while caring for AEA. Mr. Reid suggested that she address this issue in his first report but she did not do so. Despite the concern, I point out that there is no evidence before me that the mother's marijuana use has impacted her caregiving. While daily drug use has to be a concern, in the absence of evidence that it affects her parenting, it is not a factor that I rely upon in this decision to deny her custody or access. That being said I will require that she not use marijuana while AEA is in her care.

Access

[96] While I do not find that it is in AEA's best interests to be placed in the mother's custody, there is reason to expand the mother's present access to the child. I say that for the following reasons:

1. As stated above, AEA has a meaningful and beneficial relationship with her mother, one that the present limited access has allowed to grow. It is in the child's best interests to allow that relationship to grow further.

2. Mr. Reid reports that the child enjoys spending time with her mother. AEA would like her time with her mother to increase. Of course as a six year old, the child has a voice but not a choice. But that voice points to a meaningful relationship and a desire for more time. So long as the mother does not undermine AEA's relationship with her grandparents and extended family, such an expansion of their time would be beneficial to AEA.

3. I agree with the mother that it is important for AEA to develop a relationship with her brother.

4. Whatever concerns the parents have raised about the mother, they support her access to AEA. They have offered no evidence that it is deleterious to her. In fact Mr. Reid expressed disappointment that the grandparents did not agree earlier to an expansion of access.

ORDERS

[97] For the reasons set out above, I order as follows:

1. The grandparents shall have sole custody of AEA.

2. The grandparents are entitled to sign all consents and obtain all records and travel documents for AEA without the consent of either of her biological parents.

3. The grandparents shall consult with the mother before making any major decisions regarding AEA's health, education, religion, and activities. However after consultation, the grandparents shall have the final right to decide on all major decisions involving AEA.

4. The grandparents shall provide the mother with the names of all third party service professionals who care for AEA, including teachers, doctors and dentists. The mother may meet with and obtain records from any of those service providers. If necessary, the grandparents will sign all requisite consents.

5. Both parties may attend all of the child's scheduled school and extracurricular activities. If they are all present, they shall not engage in any conflict at that time.

6. The mother shall be entitled to access to AEA as follows:

i. From now until the first weekend of February, each weekend from Friday after school until Saturday evening at 7:00 p.m.;

ii. Commencing on the first weekend of February:

a) Alternate weekends from Friday after school to return to school Monday morning. If the Monday is a statutory holiday or school professional development day, this access shall be expanded to Tuesday return to school;

b) On the weekends in which the mother does not have weekend access, she shall have AEA on Saturday from 10:00 A.M. – 5:00 P.M.

iii. Each Wednesday (or such other week day as the parties may in writing agree upon) from after school to 7:00 p.m.

iv. Access during AEA's summer school break shall be as follows:

a) For one week during the summer of 2018. The mother will advise the grandparents of the week she chooses by April 1, 2018;

b) For two non-consecutive weeks during the summer of 2019. One week shall be in July and the second shall be in August. The mother will advise the grandparents of the weeks she chooses by April 1, 2019;

c) For three non-consecutive weeks during the summer of 2020. Not all of the access shall be in the same month unless the parties agree otherwise in writing. The mother will advise the grandparents of the week she chooses by April 1, 2020.

d) For two sets of two week blocks, starting in 2021 and continuing thereafter. The grandparents will choose the days that they wish AEA in odd numbered year and the mother will choose her dates in even numbered years.

e) If the person called upon to choose summer access dates for a particular year fails to advise the other party(s) in writing (which may include email) of her/their choice of summer week(s) by April 1 of any year, the other party may choose the access week(s). In that event, they will notify the other party in writing by April 15. If that does not occur, the first person after April 15 who notifies the other in writing of their choice will be entitled to the chosen dates.

f) If, before 2021, the grandparents notify the mother of plans to travel with the child during the summer before she communicates her choice of dates, their travel plans will take priority.

v. The mother will be entitled to Christmas Eve to Christmas Day at noon on odd numbered years and from Christmas Day to Boxing Day at noon on even numbered years. Changeover shall take place at 12 noon. She shall also be entitled to two further overnight days over the Christmas school holidays in 2017. Commencing in 2018 she will be entitled to five further days of Christmas access. Commencing in 2019 she will be entitled to half of AEA's Christmas school holidays.

vi. During AEA's 2018 March school break, the mother will be entitled to two extra days of access, which shall precede or follow her normal weekend access. Commencing AEA's school March break, 2019, the mother will be entitled to the first half of the March school break. If the parents agree in writing they can instead agree to alternate March break access.

vii. In addition, the mother may exercise such further access as the parties may agree upon in writing.

viii. Neither the grandparents nor the mother shall disparage each other in the presence of the child. Each shall encourage the relationship of the child with the mother.

ix. The mother shall not allow JG to disparage or speak ill of the grandparents to the child.

x. Unless the parties agree otherwise in writing, the mother will pick up the child at the beginning of her access. Following the mid-week access, the mother shall return the child to the house of the grandparents. Following weekend access, the mother shall return the child to the grandparents or school, as the case may be. Following holiday access, the grandparents shall pick up AEA from the home of the mother.

xi. Any notice or agreement that this order requires be in writing may be effected by email or text.

xii. Neither party shall arrange activities for AEA on days in which she is in the other's care without the consent of the other.

xiii. The mother will not consume marijuana or be under the influence of alcohol or any non-prescription drug at any time commencing six hours before and access visits and the end of the visit.

[98] I do not see this as a case for costs.

Released: October 30, 2017

Signed: Justice Marvin Kurz