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.
(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.
(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.
ONTARIO COURT OF JUSTICE
CITATION: Children’s Aid Society of Toronto v. S.T., 2019 ONCJ 76
DATE: 2019-02-13
COURT FILE No.: Toronto CFO-13-10927-00A2
BETWEEN:
CHILDREN’S AID SOCIETY OF TORONTO Applicant
— AND —
S.T. and M.C. Respondent
Before Justice Maria N. Sirivar
Heard on October 24, 2018
Reasons for Judgment released on February 13, 2019
Yvonne Fiamengo .............................................................. counsel for the applicant society Lester Ramirez Cuellar .................................................... counsel for the respondent, M.C. No appearance by or on behalf of the respondent S.T. Herschel Gold ......................................... counsel for the Office of the Children’s Lawyer, legal representative for the children
SIRIVAR J.:
INTRODUCTION
[1] This is a motion for summary judgment brought by the Applicant, the Children's Aid Society of Toronto (the “Society”), seeking an order that the children before the court namely, A.C. born […], 2005 and S.C. born […], 2006 (the “Children”) be placed in the extended care of the Society with access to the Respondent parents.
[2] The Respondent S.T., (the mother), did not participate in this motion, having been noted in default on October 17, 2017.
[3] Following a summary judgment motion before Justice Finalyson, the statutory findings were made and the Children were found to be in need of protection pursuant to section 37(2)(i) of the Child and Family Services Act.
[4] In this motion for summary judgment, the Society relied on:
a. the affidavits of Sarbit Mahal and Klaus Knierim who are both Child Service Workers: b. the affidavits of David Grant who is a Family Service Worker; c. the affidavit of the Children’s foster father; d. the psychological assessments of the both children by Dr. Daniel Fitzgerald, having filed a Notice of Intent to Rely on Reports of Practitioners
[5] The father relied on his affidavit sworn October 21, 2018.
[6] The Office of the Children’s Lawyer (“OCL”) did not file any materials.
ISSUES
[7] The issues to be decided are:
a. Is there a genuine issue requiring a trial for its resolution? b. If there is no genuine issue requiring a trial for its resolution: i. Should the Children be placed in the extended care of the Society; and ii. If so, what access should the parents have to the Children?
LAW AND LEGAL PRINCIPLES
[8] Rule 16 of the Family Law Rules makes clear that summary judgment is available in child protection proceedings. The burden of proof is on the moving party. To succeed, the Society must prove that there is no genuine issue requiring a trial for its resolution. In other words, the judge must be able to reach a fair and just determination of the issues on the merits. Specifically, the process must:
a. enable the judge to make the necessary findings of fact; b. enable the judge to apply the law to the facts; and c. be a proportionate, more expeditious and less expensive means to achieve a just result.[^1]
[9] If the court concludes that there is no genuine issue requiring a trial for its resolution, then the court must make a final order, as Rule 16 is mandatory.[^2]
[10] In applying Rule 16, the court must also consider the strict timelines that govern child protection proceedings. The Ontario Court of Appeal has stressed the obligation to “minimize delay and promote finality for children.”[^3]
[11] The import of the statutory timelines was explained by the court in Children’s Aid Society of Toronto v. H. (R.), in the following terms:
“A child’s need for permanency planning within a time frame sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from a parent’s evidence that they face some better prospects than what existed at the time of the society’s removal of the child from their care and has developed some new ability as a parent.”[^4] [Emphasis Added]
Evidentiary Standard
[12] The party seeking summary judgment must serve an affidavit or other evidence that sets out the specific facts demonstrating that there is no genuine issue requiring a trial. The responding party, faced with a prima facie case, must provide evidence of specific facts demonstrating that there is a genuine issue for trial. To defeat a claim for summary judgment, blanket denials, mere allegations or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial will not be sufficient.[^5]
[13] On a motion for summary judgment in child protection, trial-worthy evidence is mandatory. Hearsay evidence that does not meet the common law test of necessity and reliability will not be admitted.[^6]
[14] The court in Children's Aid Society of Toronto v. B.B.[^7] explained:
“My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination.” [Emphasis added]
Extended Society Care
[15] In determining the appropriate disposition, the court must decide what is in the children’s best interests. The court considers the criteria set out in subsection 74 (3) of the Child Youth and Family Services Act (“CYFSA”) in making this determination.
[16] An order placing a child in the extended care of the Society is the most profound order that a court can make. It is a power that a judge must exercise only with the highest degree of caution, on the basis of compelling evidence, and after a careful examination of possible alternative remedies.[^8]
[17] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. In so doing, time is considered from a child’s perspective.[^9]
UNDISPUTED EVIDENCE
Background
[18] On November 29, 2013, the Children were placed in the temporary care of the Society, after their mother abandoned them. At that time, the Children could not be placed in the father’s care due to his outstanding criminal charges.
[19] When the father’s criminal charges were resolved, the Society was not able to assess his mother’s home, where he lived, in order to place the Children with him or to have extended access at his home and assess his parenting.
[20] There are no alternative family plans for the Children.
[21] The father continues to live with his mother and does not present a plan for the Children. He has been unable to find housing and he has been unable to convince his mother to allow the Society to assess her home.
Access
[22] While in care, the Children have consistently had access to both parents. The mother’s access takes place once a month on a semi-supervised basis, at the Society’s office.
[23] The father’s access, beginning with supervised access once a week, has increased in frequency and duration to three (3) times a week in the community. Access does not, however, take place three (3) times per week as it is often cancelled by either the Children, the foster parents or the father, with the father having cancelled the majority of the visits. Most Saturday access visits, however, do take place.
[24] The father has a positive relationship with the Children. They look forward to the visits with him and enjoy the time they spend together.
[25] The father has also developed a positive working relationship with the foster parents, although it has become somewhat strained in recent months as a result of the ongoing litigation.
The Children
[26] The Children have been in the same foster home since November of 2013. The foster parents have provided good care and stability. The foster parents have been able to meet the Children’s needs and address issues as they arose.
[27] A.C. is currently 13 years of age. He does well in school. He suffers from Attention Deficit Hyperactivity Disorder, facial tics and anxiety. He sees a therapist, a tutor, and a one-to-one worker.
[28] S.C. is now 12 years of age. He suffers from anxiety and sees a therapist. At school he has an Individual Education Plan.
Father’s Search for Housing
[29] The father began searching for housing to accommodate himself and the Children in 2014. He applied to the Toronto Community Housing Corporation (“TCHC”) with some assistance from the Society.
[30] The father has been unable to secure housing or convince his mother to allow the Society to assess his current home for long term planning or access.
[31] The father received Ontario Works (“OW”) benefits in the amount of $354.00 per month which made it difficult to not only afford monthly rent, but also first and last month’s rent deposit required by most landlords.
[32] In or about February of 2018, the father received the Transition Child Tax Benefit in the amount of $230.00 per child per month. This increased his monthly benefits to $814.00. He also received a lump sum retroactive payment of the benefit in the amount of $4600.00.
[33] The increased monthly benefits, although the Children were not in his care, was to assist with securing housing and the lump sum was to assist with first and last month’s rent deposit.
[34] The father’s bad credit impacted his housing search.
[35] He was receiving support with his search from a housing worker from UNISON.
[36] On December 17, 2017, Justice Finlayson directed the Society to implement its detailed proposal to assist father with housing. His Honour also gave the father leave to bring a 14B motion should he require more assistance.
[37] In his endorsement dated March 28, 2018, granting a brief adjournment, Justice Scully ordered:
“4. Father to obtain suitable house forthwith to allow access in the residence with the children. Court admonished father to obtain housing no later than May 31 so as to allow transitional access with the children as they complete the school year …
The Court recognizes that the position taken by the Society and OCL is a very significant support to father to allow him one last opportunity to establish that he is willing to take on the responsibility of providing parental care to his children.
Should the father fail to secure suitable housing to allow for the placement of the children in his care, this proceeding shall be set for a summary judgment hearing at the assignment court on September 10, 2018”.
[38] At the time this motion was heard, the father had been unsuccessful in his efforts to find housing. The father had not brought a 14b motion seeking more assistance with finding housing.
Society’s Efforts to Assist Father and Support Reunification
[39] As early as 2014, the Society provided some support and assistance to the father in his effort to find suitable housing. Attached to the father’s original application to TCHC is a letter from the Society Worker, Rowena Morin, dated December 29, 2014 which reads in part;
“It was society’s position that when the Father secured housing, the Society would commence community and home visits with a view to determining whether the father can plan long term for the children.”
[40] The father met with Society workers over the years regarding his search efforts and to discuss challenges and possible solutions.
[41] In June, August and September of 2016, the Society sent letters of support regarding planning for the Children to OW requesting funding to assist the father with housing.
[42] The Society arranged for the father to have the assistance of case aid Nadia Iskandar in his search for housing. He did not use the service offered.
[43] Society worker Mr. Grant took the following steps:
a. attempted to speak with paternal grandmother several times in December of 2017 to assess her home so that it could be a place for the Children to have extended and/or overnight access; b. called the paternal grandmother in January of 2018 left a message that was not returned; c. spoke at length with the OW worker and the housing worker, d. viewed a property with the father on January 22, 2018; e. went with the father to complete the application but father did not have all documents he needed; f. attended rental office of TCHC 2765 Islington and spoke at length with administrative staff on the father’s behalf; g. provided credit counselling contacts to the father; h. explained an option of last resort which involved going to a men’s shelter so that the father could automatically be placed on the priority list due to the Society’s involvement; i. offered a letter of support for co-op housing; and j. advocated for the father with TCHC on March 22, 2018 (after receiving the father’s TCHC number on March 12, 2018) and requested information on how to expedite the process.
[44] The father stopped returning Mr. Grant’s calls in or about March of 2018 and has not had contact with the Society since that time.
POSITIONS OF THE PARTIES
The Society’s Position
No Genuine Issue for Trial
[45] The Society’s position is that there is no genuine issue requiring a trial for its resolution. The Society submits that it has met its obligation to assist the father and to promote reunification. His criticisms of the Society, it is argued, are disingenuous because he stopped working cooperatively with the Society.
[46] Counsel argued “It is not just about housing. It is also about problem solving, judgment and motivation.” According to the Society, the father refuses to take any responsibility for his situation and blames everyone including the Society, the mother and her family, foster parents, and the housing market.
[47] The Society urges the court to review the father’s affidavit, with caution, as there inadmissible hearsay from unnamed people. The Society also takes issue with the lack of direct evidence from the housing worker or anyone else involved in the father’s housing search.
[48] The Society submits that the father was given additional time to secure suitable housing in March of 2018. The Society’s non opposition to the father’s request for an adjournment was a significant support offered by the Society to provide the father with one last chance to find housing. Rather than doing so, argues the Society, the father stopped responding to the worker.
Extended Society Care and Status Review
[49] The Society argues that its plan, which is the only one before the court, is in the Children’s best interest because it allows the Children to remain in the foster home they have been in for almost five (5) years where they are stable and have received good care. The foster parents are able to meet the Children’s educational, medical and emotional needs.
[50] The Society opposes the father’s request for an order that it be required to bring a status review application one (1) month after the father secures housing. In the Society’s view, it would be an artificial review because the Society would not have an opportunity to assess, given the father’s lack of cooperation.
Access
[51] The Society takes the position that the access schedule should support permanency. Flexibility is needed given the logistics of the Children’s activities, school and appointments. The Society points out that the father was given increased access and cancelled the majority of the visits.
[52] The Society seeks the following orders:
k. The Children be placed in the extended care of the Society: l. Access to the mother be at the discretion of the Society as to frequency, duration, location and level of supervision, taking into consideration the wishes of the Children; m. Access to the father to take place a minimum of once per week on days and times as agreed to between the father and the Society, and subject to the wishes of the Children; and n. Access between the Children, in the event that they cease to reside in the same home, shall be in accordance with their wishes.
The OCL’s Position
[53] The OCL does not oppose or consent to the orders sought by the Society. OCL takes the following position of behalf of the Children: “They wish to live with their father. If they had to stay in the foster home, they would be sad but they would understand”.
[54] Counsel submits, however, that these wishes are based on the Children’s experience with the father during access where he is the “fun parent”. They have not lived with him in five (5) years and have never lived with him as a single parent.
[55] In OCL’s submission, the father obtaining housing was only the first step. It would have allowed the Children to spend meaningful time with the father. They could then be in a position to provide views and preferences in the proper context.
[56] OCL points out the father was ordered to find suitable housing forthwith and no later than May 31, 2018. The purpose was to allow transitional access with the Children extending access over the course of the summer.
[57] Despite the court’s admonishment, says OCL, the father “does nothing and blames others”. If the father expected more help from the Society, argues the OCL, he would have brought a motion but none was brought. He could have used some of the child tax benefits ($430 per month) he is receiving for the Children to rent a hotel room in order to have overnight access. “It is unbelievable that he can’t find housing”, argues the OCL.
The Father’s Position
Genuine Issue Requiring a Trial for its Resolution
[58] It is the father’s position that this is not an appropriate case for summary judgment and he identifies the following triable issues:
a. “ Whether the Society has met its duty to provide services to the Respondent Father; b. Whether the Society has met its duty to promote family reunification; c. Whether the Father has made sufficient efforts to obtain housing; and d. Whether an extension of time can/should be granted to allow the Father to secure housing, particularly in light of the new legislation that emphasizes greater weight to children’s views and preferences”.
[59] He submits that he requires additional time to find housing because of his limited means and he has not received appropriate support from the Society.
[60] The father argues that the Society has not met its duty to assist him. In his view, there should have been more “proactive advocacy”. He argues that Mr. Grant should have continued to call TCHC weekly to advocate for him, even when he was not responding to Mr. Grant’s calls. The father explains that when Mr. Grant was calling him, he was not being helpful. Rather, he was pointing out that the father was failing.
[61] The father submits that his evidence regarding his efforts to find housing should be accepted notwithstanding the Society’s criticism of it as hearsay because it is reliable and necessary. Counsel submitted that the evidence is reliable because it comes from the father and it is necessary because it is not reasonable that he be expected to obtain affidavits from every landlord.
Extended Society Care and Status Review
[62] The father concedes that he does not have a plan before the court. He argues that if the court finds that there is no genuine issue for trial, the court must consider:
e. “Whether this Court should make an order directing the Society to bring this matter back on Status Review one month after the Father secures housing, such Order to last 12 months from the date of the extended society care Order is made; and f. Whether the Society’s proposed resolution for access is in the Children’s best interests or whether a specified schedule is in the Children’s best interest.”
Access
[63] It is the father’s position that access should be on a fixed schedule, every Saturday, and that he and the foster parents should rotate Christmas holidays. He would also like to have access on the Children’s birthdays and on his birthday.
[64] He argues that this access arrangement is in the Children’s best interest because he has a positive relationship with the Children. They look forward to the visits with him and enjoy the time they spend together.
[65] The father explains that he cancelled many visits because he suffers from motion sickness due to his migraines and because he cares for his mother who is at times unwell. Moreover, access often occurs outdoors so weather sometimes forces the cancellation of the visits.
ANALYSIS AND CONCLUSION
No Genuine Issue Requiring a Trial for its Resolution
[66] I find that it is in the interest of justice for the court to determine this case summarily. Given the length of time the Children have been in Society care, the resolution of this matter by way of summary judgment is not merely efficient and expeditious, but it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.
[67] I find that I am able to make the necessary findings of fact based on the evidence before me without the need to use any expanded powers to weigh evidence or assess credibility.
[68] Cross-examination of witnesses would add little, if any value to the court’s analysis as the material facts of this case are not in dispute.
[69] I find that the Society has established, on a balance of probabilities, a prima facie case for summary judgment with respect to each aspect of the relief sought, and that the father has not met his onus of establishing that there is a genuine issue requiring a trial for the reasons that follow.
No Extension of Time to Secure Housing
[70] This matter has been outstanding for five (5) years. In the year before this summary judgment motion, steps were taken to ensure that the father had the support he required to secure suitable housing.
[71] It would be a miscarriage of justice to place children in extended Society care only because a parent, who is willing and able to care for them, could not afford housing. Poverty should not be the determining factor in child protection matters.
[72] This case, however, is not about the father’s ability to afford suitable housing. It is about the father’s ability to problem solve, his judgment and his motivation.
[73] The father was given an extension of time when the matter was adjourned in March of 2018. He was ordered to find suitable housing no later than May 31, 2018 so there could be transitional access. He did not. Rather, he cancelled the majority of the access visits and stopped working with the Society in his effort to find housing.
[74] The father bears the onus of establishing that there is more than just a heartfelt desire to plan for the Children. He should have provided direct evidence related to his efforts to secure housing. At the very least, he could have had a specific account of dates, addresses, and contact names. Specific facts showing there is a genuine issue for trial, rather than blanket denials, accusations, self-serving statements and hearsay from unnamed people.
[75] There is no reason to believe that any more time would make any difference, after five (5) years and significant support from the Society and OW. The undisputed evidence makes clear that the father does not face any better prospect than what existed when the Children were placed in the care of the Society five (5) years ago.
[76] Looking at time from the perspective of the Children, no further extension is warranted as they deserve permanency.
[77] The Children’s views and preferences, to live with the father, are in the context of their time with the father during access visits. They have not lived with him since they were seven (7) and eight (8) years of age. They are now twelve (12) and thirteen (13).
[78] Accordingly, the Children’s views and preferences, although considered, are not determinative.
Society Provided Services and Promoted Reunification
[79] I find that the Society worker, Mr. Grant, provided significant services to the father by, for instance: advocating with TCHC (once the father provided the relevant information); advocating with OW; assisting him with applications; providing letters of support; attending potential residences to view them and to speak with administrative staff; providing referrals for credit counselling and housing workers.
[80] It is unreasonable for the father to expect the Society to continue advocating on his behalf and promote reunification when he has not done it for himself and he was not providing information or responding to calls from Mr. Grant.
Extended Society Care and Status Review
[81] In view of the length of time the Children have been in care and the fact that the only plan before the court is the Society’s plan, the only possible disposition is that the Children be placed in the extended care of the Society.
[82] The Society’s plan is for the Children to remain in the foster home where they have been in for the past five (5) years. The Society’s plan accords with the Children’s best interest as it provides continuity of care and ensures that their educational, physical and emotional needs will continue to be met.
[83] I will not order that the Society bring a Status Review Application one (1) month after the father secures housing. Securing suitable housing was only a starting point to expand access and for the father’s parenting to be assess. When the father secures housing, he can bring a status review application, if he wishes.
Flexible Access is in the Children’s Best Interest
[84] The mother’s access has been monthly at the Society’s office and no party is seeking to have that changed.
[85] I find that a flexible access schedule for the father is in the Children’s best interest. The access schedule should promote permanency and be able to accommodate the Children’s activities and appointments. Additionally, given the number of access visits the father cancelled, a flexible schedule enables the parties to agree to dates and times that accommodate the Children’s needs as well as the father’s challenges such his motion sickness and the need to care for his mother. This will reduce the number of cancelled visits.
ORDERS
[86] For the reasons set out above, the court orders:
a. The Society’s motion for summary judgment motion is granted; b. The children, A.C. born […], 2005 and S.C. born […], 2006 shall be placed in the extended care of the Society; c. Access to the mother shall be at the discretion of the Society as to frequency, duration, location and level of supervision, taking into consideration the wishes of the Children; d. Access to the father shall take place a minimum of once per week on days and times as agreed to between the father and the Society, and subject to the wishes of the Children; and e. Access between the Children, in the event that they cease to reside in the same home, shall take place in accordance with their wishes
Released: February 13, 2019
Signed: “Justice Maria N. Sirivar”
[^1]: Hryniak v. Mauldin, 2014 SCC 7 - paragraph 49 [^2]: See Rule 16(6) [^3]: C.M.E.M. v. Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612 at para. 35. [^4]: Children’s Aid Society of Toronto v. R.H. 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.) [^5]: See Hryniak v. Mauldin, supra [^6]: Catholic Children’s Aid Society of Toronto v. C.G. and D.S., [2018] O.J. No. 1612, 2018 ONCJ 193. Children's Aid Society of Toronto v. C.P., 2017 ONCJ 330; The Children's Aid Society of Toronto v. G.S., 2018 ONCJ 124 [^7]: 2012 ONCJ 646 [^8]: Catholic Children’s Aid Society of Hamilton-Wentworth v. G. (J) (1997), 23 R.F.L. 4th 79 [^9]: Children’s Aid Society of Toronto v. D.S., 2009 60090 (Ont. S.C.J.).