WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Date: June 12, 2018

File No: 150/17

Decision Released: June 18, 2018

Parties and Counsel

Applicant: Family and Children's Services of Guelph & Wellington County

Respondents: T.S.; B.C.

Counsel:

• Antonio Circelli for the Applicant
• Terrence Flaherty for T.S.
• M. Wesley Philip for B.C.

ENDORSEMENT

Background

[1] A child was born in 2017.

[2] The child was removed to a place of safety from the care of the mother on July 18, 2017. The reason for the removal was the mother's decision to continue a relationship with the father, who was chronically abusive and mentally unsound.

[3] A protection application immediately followed the removal.

[4] The parents consented to a finding in need of protection pursuant to s. 74(2)(b)(i) of the Child, Youth and Family Services Act, S.O. 2017 on January 31, 2018. The agreed statement of fact supporting the finding is found at Tab 18 of the record.

[5] The Applicant issued its motion for summary judgment on disposition on May 15, 2018. Directions and time limits for filing materials by the parents, who were both represented, were given by the Court and June 12, 2018 was the date set to argue the motion.

[6] Neither parent responded. Both asked for an adjournment to do so; however, the Court denied the adjournment request for oral reasons given.

[7] The disposition sought is an order for extended society care without access.

The Law: Summary Judgment

[8] The law respecting summary judgment has developed over many years. The law placed onuses on both the moving and responding parties to provide a factual base to prove there was no genuine issue requiring a trial or that one or more such issues indeed existed. The definition of a genuine issue for trial focused facts material to whether the relief requested could be granted.

[9] The Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7 did not appear to many in the Bar and on the Bench to alter the fact finding process described above but appeared to identify means of avoiding a full blown trial where triable issues were identified on the materials filed by either party.

[10] The Divisional Court in Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 has, however, significantly altered the tests identified over the years.

[11] I do not intend to repeat how the Divisional court reached the decision it did; that will be left for the reading by the parties. I stress, however, that reading this decision and that of Children's Aid Society of Ottawa v. C.(I.), 2017 ONSC 6935 (Div. Ct.) is mandatory for every lawyer who intends to appear on motions of this nature in the future because almost everything learned over the past 20 years may be no longer applicable.

[12] What I intend to do today is outline my sense of the principles that now appear to apply to the fact finding process.

[13] In domestic family and child welfare cases, the Divisional Court confirms Rule 16 continues to apply in summary judgment motions. However, where a sub-rule suggests an onus, the court determined neither party is required to prove it will likely succeed at trial or that the other cannot possibly succeed.

[14] Initially, the moving party must now identify a fact base that satisfies the Judge that it is in the interests of justice that its case be decided summarily. In assessing the interests of justice, the court will ask three questions: (1) do the facts pleaded allow the judge to make findings of fact; (2) do the facts pleaded allow the judge to apply the law to the facts; and, (3) do the facts pleaded allow the judge to determine that summary judgment is indeed a more proportionate, more expeditious and less expensive means of achieving a just result.

[15] The responding party's materials will focus facts that diminish the motion judge's ability to make clear findings of fact or law. Submissions on the three questions will focus how the facts pleaded dilute the ability to achieve a just result through a summary judgment motion.

[16] At the initial stage, sub-rules 16(4) and (4.1) are focused. The cases defining these sub-rules, especially how the responding party should answer the moving party's materials ("best foot forward"; "all evidence the responding party would be able to adduce at trial") continue to apply.

[17] After a review of all of the evidence tendered, if any of the three questions are answered in the negative, a serious issue requiring a trial may be identified. The fact that the motion judge identifies a serious issue for trial in this initial assessment does not, however, automatically mean that issue must be resolved only in a formal trial.

[18] The motion judge must determine whether the identified issue can be resolved without a trial using the powers in sub-rule 16(6.1). Use of the sub-rule 16(6.1) powers is discretionary and the discretion should only be exercised on a clear determination that their use will lead to a fair and just result that will serve the goals of timeliness, affordability and proportionality – in other words, their use is in the interests of justice.

[19] Hryniak does not alter the moving party's onus in regard to facts supporting the disposition sought or the statutory issues that must be considered before a child is not returned to the person having prior care and control. The facts pleaded must still meet the standard of a balance of probabilities.

[20] The court in Kawartha-Haliburton spoke to the issue of intelligible reasons demanded from a motion judge and this issue equally speaks to the concurrent obligation of counsel to focus the Hryniak factors mentioned above as they prepare their evidence and as they prepare their submissions. In my mind, Kawartha-Haliburton marks the end of the practice whereby the lawyers focus only their factual evidence and leave the application of the law to the court. A judge would be foolish to attempt to apply the assessment described in Kawartha-Haliburton without focused submissions and direction from counsel.

The Applicant's Evidence

[21] Given the recent release of the Kawartha-Haliburton reasons, none of the counsel today were prepared to discuss it let alone apply it to the evidence. However, given the unique factor in the case at hand that the parents did not respond, I am of the view I am able to determine the issues without the need to reschedule submissions.

[22] In order to assess best interests, the court must first identify those facts supporting the agreed upon risk.

[23] The agreed statement of fact supporting the finding offered little in the way of hard fact supporting the subsection 74(2)(b)(i) finding; however, it did allow the court to apply the facts found in the affidavit of Cindy Folkerson at Tab 4 of the record.

[24] This affidavit supports that:

[25] The parents have been in a relationship since August of 2014.

[26] The mother has three older children who were born in 2009, 2011 and 2012.

[27] The father was diagnosed in 2016 with an anxiety disorder, depression, suicidal ideation and one suicide attempt. Another suicide attempt occurred subsequently.

[28] The father also suffered a head injury which, according to his counsellor, makes him prone to abrupt and extreme reactions to events that he is incapable of regulating. Events involving the mother, especially those where the father believed she was leaving him, most often led to a violent response from him or a threat of suicide.

[29] The parents' domestic disputes were most often loud, intense and eventually violent. They frequently led to police involvement.

[30] The father was charged four times over two years with assaults on the mother. On each occasion, the mother recanted her statements in order to help the father avoid a jail sentence.

[31] The father and mother repeatedly breached non-association terms contained in bail or probation orders. During these breaches, additional domestic disputes arose which led to more criminal charges against both parents.

[32] The children either saw or heard most of the disputes.

[33] At a point in 2015, the mother was prohibited from being in Guelph where the father resided. She and the three children resided in Waterloo with her mother.

[34] At a point late in 2015, the order prohibiting the mother being in Guelph was dropped and she immediately left her mother's home and her three children and relocated to Guelph to be closer to the father. Throughout 2016 until the spring of 2017, she saw little of her children and abandoned them to the care of her mother in favor of an ongoing relationship with the father. In May of 2017, the maternal grandmother was granted custody of them.

[35] There is evidence that both parents consumed hard drugs and alcohol. This evidence does not support a finding of an addiction but it does support that substance use fuelled the intensity of their domestic disputes.

[36] Except the time the mother resided in Waterloo, both parents were frequently homeless in 2016 and 2017. If they rented a residence, they were soon evicted. The father was in and out of jail, especially in 2018. The mother's last eviction was in November of 2017 and she remained homeless up to the date of this hearing.

[37] Both parents were granted access to the child following his removal. Both parents struggled to attend on time and when they did attend, there were frequent arguments between them. A notable number of visits were missed entirely and when challenged, both parents alleged they had gone to other appointments.

[38] In December of 2017, missed visits became the norm.

[39] On December 12, 2017, the Applicant moved to have the access schedule altered to give it absolute discretion respecting structure and availability. The motions judge gave the parents, who were in attendance, one last chance to retain the existing structure. Their next visit was scheduled for December 13th and neither attended. By the order, absolute discretion was transferred to the Applicant.

[40] Many of the mother's missed visits were the result of her decisions to attend to the father's needs rather than her own. Many of the father's missed visits occurred because he was in custody.

[41] Throughout 2018, the mother elected to argue about her scheduled visits with the worker. She became intransigent about unrelated issues which, on the evidence, likely informed her non-attendance in the months leading to this hearing.

Findings of Fact: Disposition

[42] The Applicant has tendered sufficient facts to satisfy me on a balance of probabilities that the child herein continues to be at risk of exposure to domestic disputes and violence between his parents and at risk due to his parents' inability to maintain a stable residence.

[43] Having regard to the ongoing risks and the parents' failure to respond to this motion, I find that it is in the interests of justice that its case be decided summarily.

[44] The facts pleaded clearly permit findings of fact and application of the law respecting best interests. Having regard to the failure to respond, summary judgment is indeed a more proportionate, more expeditious and less expensive means of achieving a just result.

[45] Considering subsection 74(3) of the CYFSA, the child's wishes cannot be ascertained; he is not First Nations, Inuk or Metis; there are no identified factors as defined in subsection 74(3)(c)(iii) or (iv) that might support placement with the parents or their extended family or community; there is no evidence supporting an importance of ongoing relationships with his step-siblings or his parents; the parents' histories since 2014 clearly support that if returned into their care, continuity would be an immediate factor considering risk of abandonment or a new removal; considering the parents' failure to respond, further delay will be harmful to the child; and, no evidence supports a plan put forth by either parent.

[46] The evidence clearly supports that the Applicant offered both parents extensive services before intervention. The evidence clearly supports that no viable extended family or community placements have been identified. Further, the Applicant's Plan of Care clearly identifies that the child's needs will be met if the order sought is made.

[47] In the result, I find that sections 100 and 101(2) and (4) do not present barriers to the disposition sought.

[48] In the result, the facts pleaded clearly supports that the placement sought by the Applicant must, in the child's interests, be granted.

The Law: Access

[49] As addressed in Family & Children's Services of Guelph & Wellington County v. D.D.D.H. (May 14, 2018), an assessment of access following an extended care order is considered differently than under s. 59(2.1) of the Child and Family Services Act.

[50] The CYFSA has retained the terminology supporting the former s. 59(2) CFSA presumption against access once an extended society care order is made: see, s. 105(4). The wording of s. 105(4) also appears to support the continued applicability of prior court decisions that the onus shifts to the person seeking access: see Children's Aid Society of the Niagara Region v. C.(J.), [2007] O.J. No. 1058; Children's Aid Society of Toronto v. P.(D.), [2005] O.J. No. 4075.

[51] However, the onus is now based on a best interest assessment on the considerations defined in s. 74(3) together with beneficialness and meaningfulness which were adopted from subsection 59(2.1) of the CFSA and added as a new best interest criterion for an access assessment: see s. 105(6) CYFSA.

[52] In the result, beneficialness and meaningfulness is no longer the sole criterion (apart from the adoption question) defining the access onus. Reading subsections 105(5) and (6) together, the beneficialness and meaningfulness criterion should be given no greater weight than the balance of the subsection 74(3) criteria.

[53] The question addressed in D.D.D.H. is whether beneficialness and meaningfulness should be interpreted as it was under the CFSA: see Children's Aid Society of Niagara Region v. J.(M.), [2004] O.J. No. 2872. Nothing in the wording of the CYFSA appears to bar applying the prior interpretation; however, given that this new criterion is merely one of fourteen considerations, will the prior interpretation risk giving it greater weight than it merits under the new regime?

[54] I found the J.(M.) interpretation of "significantly advantageous" stands a risk of overpowering the other 13 criteria in subsection 74(3) and found this interpretation should be amended to mean that the access relationship at the time of trial was both "positive" and "important" to the child since, in my mind, these words appear contextually compatible with the balance of the subsection 74(3) considerations whereas significantly advantageous reads as an overriding consideration.

Findings of Fact: Access

[55] The facts pleaded respecting access clearly show that neither parent is capable of arriving on time or at all under any form of an access regime; and, that neither parent is capable of balancing their personal interests and those of the child.

[56] The facts also clearly predict that the father is at a significant risk of incarceration in the future thereby resulting in frequent interruptions in his ability to visit and the facts clearly show that if the father is unable to attend, the mother will not attend independently.

[57] The facts pleaded which were not responded to together with the placement findings above clearly show that none of the s. 74(3) best interest criteria would support an ongoing access regime in favor of either parent.

[58] Further, none of the facts pleaded tend to show that the historic access attended by the parents was either positive or important to the child.

[59] On the evidence tendered, I find it is in the interests of justice that its case be decided summarily and the facts pleaded clearly permit findings of fact and application of the law respecting access issues. Having regard to the failure to respond, summary judgment on this issue is indeed a more proportionate, more expeditious and less expensive means of achieving a just result.

Order

[60] For the reasons above, I order that the child who was born in 2017 shall be placed in the extended care of the Applicant with no access to the Respondent parents.

Justice M.P. O'Dea