Court File and Parties

Court File No.: Toronto DFO-16-14236 A3 Date: 2020-06-04 Ontario Court of Justice

Between:

D.E. Applicant father

— AND —

S.L. Respondent mother

Before: Justice Sheilagh O'Connell

Heard on: November 29, 2019

Reasons for Judgment released on: June 4, 2020

Counsel:

• Michael Weissenborn, counsel for the applicant
• S.L., on her own behalf
• Douglas Millstone, counsel for the Office of the Children's Lawyer, legal representative for the children

O'CONNELL J.:

Part One: Introduction

[1] The applicant father has brought a summary judgment motion seeking, among other relief, a final order for sole custody of the children of the parties' relationship and a final order that the mother have no access, or alternatively a final order that the mother have supervised access at a supervised access centre.

[2] In the further alternative, the father supports an order that access between the mother and the children be at the father's discretion, as requested by the Office of the Children's Lawyer.

[3] The children, J. and M., both girls, are now almost 12 years and 11 years old. The applicant and the respondent are the biological parents of the children. This litigation started in 2016.

[4] Counsel for the children from the Office of the Children's Lawyer supports the order for final custody to the father, as set out in the summary judgment motion, however, he submits that access to the mother should be at the father's discretion, rather than be terminated or at a supervised access centre.

[5] The mother was served with the father's motion on October 10, 2019, which she acknowledged. She did not attend the first hearing date scheduled for November 12, 2019, for reasons unknown.

[6] Out of an abundance of caution, the court adjourned the motion to November 29, 2019 with notice to the mother of the new court date.

[7] The motion proceeded before me on November 29, 2019. The mother attended on that day and participated. She spoke to duty counsel who remained in court during the hearing.

[8] Initially, the mother advised that she was not opposed to the relief being sought, but then later advised that she was seeking an adjournment of the hearing. However, when questioned for what reason she was seeking an adjournment, the mother advised that she did not intend to serve or file any responding materials to the father's motion or to participate in the process. She wanted the court process to end.

[9] It was the mother's position that she did not intend to participate in the court process or file any responding materials. She wanted the court process to end. However, she wanted the children to be returned to her home with visitation to the father. If the children are not returned home, then she will not see the children.

[10] The court therefore permitted the mother to give evidence and make submissions without filing any response and the mother agreed that the hearing would proceed.

[11] As the mother was self-represented, I was mindful of the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23. See also Catholic Children's Aid Society of Toronto v. C.G. and D.S., [2018] O.J. No. 1612, 2018 ONCJ 193, per Justice Stanley Sherr at paragraph 15, and the decision of Justice Laura Fryer in Gray v. Gray, 2017 ONSC 5028.

[12] The court made every effort to ensure a fair and impartial process for the mother and gave her every opportunity to speak and make submissions.

[13] In addition to the oral submissions made at the summary judgment hearing, the court reviewed the following materials in reaching my decision:

1. The father's notice of motion for judgment, dated October 10, 2019;
2. The father's supporting Affidavit dated October 7, 2019, and all exhibits attached, including the children's school records, medical records, child protection records, and supervised access notes from the supervised access centre (APCO);
3. The Affidavit of U.L., the mother's adult daughter of a previous relationship, dated October 9, 2019;
4. The Affidavit of Marcy Urbas, OCL clinical investigator assisting Mr. Millstone in his representation of the children, dated October 30, 2019;
5. The mother's Answer and 35.1 Affidavit (Affidavit in Support of Claim for Custody or Access), dated June 29, 2016.

[14] The court sincerely apologizes to the parties for the delay in releasing these reasons for judgment, as a result of a number of intervening events.

Part Two: The Issue

[15] The main issue for me to decide in this case is whether there is a genuine issue requiring a trial of the issues of custody and access in this case.

[16] If there is not a genuine issue or issues requiring a trial, then the final orders sought by the father should be granted.

Part Three: Background Facts and Summary of the Evidence

[17] The father is 54 years old. He lives in Toronto with the two children, his mother and brother. They live in the house that the father grew up in, owned by his mother.

[18] The father is a licensed plumber, steam and gas fitter and has worked in this field for over 30 years. He was employed by the Hospital for Sick Children for approximately 25 years and for the past 13 years, he has been employed as a service foreman for a large company.

[19] The father was previously divorced and has no other children, other than the two children before the court.

[20] The mother is 44 years old. She lives in Thorold, Ontario (near St. Catherine's in the Niagara Region). The mother was a nursing assistant and was working at the Hospital for Sick Children several years ago, but her current source of income is unknown. According to the father's evidence, the mother has received a disability pension for a number of years.

[21] The mother has four children from three relationships. The two older children are now adults. One of them, U.L., who is now 26 years old, has filed an affidavit in support of the father's summary judgment motion.

[22] The parties met in 2007 when they were both working at the Hospital for Sick Children. They had an "on and off again" relationship for several years. They never lived together, although the father would stay over at the mother's home on a regular and frequent basis.

[23] The two children were born during the parties' relationship, J. in 2008, and M. in 2009. Up until March of 2016, the children primarily resided with the mother, first in Whitby, Ontario, and then in the Niagara region.

[24] The children are biracial. Their mother is Jamaican Canadian and their father is Italian Canadian.

[25] Once the parties' relationship ended, the evidence demonstrates that the father continued to have regular and extended contact with the children, both at the mother's home and at his own home.

[26] The father started taking the children to his home in Toronto, where they would stay for three or four days a week, every other weekend, starting when the children were very young. The paternal grandmother would assist with their care on those days during the weekend that the father had to go to work.

[27] On or about 2012, the Children's Aid Society of the Niagara Region apprehended the mother's two older children, U.L. and T.L. from the mother's care and sought a supervision order with respect to J. and M.

[28] The father was a party to this child protection proceeding in the Superior Court (Family Court) in St. Catharines and led extensive evidence regarding the child protection proceedings in this hearing. The child protection proceedings lasted approximately two years until 2014.

[29] According to the evidence filed, the child protection concerns concerned the mother's physical and emotional abuse of the older two children, U.L. in particular, the mother's inability to control and regulate her anger, and her parenting skills regarding all four children. The evidence of physical and emotional abuse towards her two older children was extensive.

[30] T.L. was eventually placed in her father's care and U.L. became a Crown Ward. At the conclusion of the child protection hearing in 2014, U.L. was 16 and T.L. was 13 years old. They declined access with their mother, as they had done throughout the proceeding.

[31] At the time the mother's two older children were apprehended, J. and M. were 4 and 3 years old. There was no evidence that the mother had physically abused the younger two children. There was undisputed evidence however that the two younger children witnessed the violence and conflict between the mother and the older children and were subject to frightening outbursts from the mother.

[32] It is the father's evidence that the Society did not apprehend J. and M. because he was extensively involved with both children and had access at least three or four days each week. The father gave detailed evidence of occasions when he intervened and protected the children from the mother's outbursts. The Society had no concerns about the father's care and access to the children.

[33] Given that the father was actively involved with the children and working cooperatively with the Society, the younger children remained with the mother subject to a supervision order, with access to the father as agreed upon between the parties.

[34] The father continued to remain extensively involved with the children and was seeing them approximately three or four days each week. He describes a number of very specific concerns that he had regarding the mother's parenting, and in particular, her ability to control her anger. The mother denied these concerns in her submissions at the hearing.

[35] Further, because the mother was estranged from her two older children, the father was responsible for facilitating the sibling access between J. and M. and U. and T. and he and one of the other fathers would assist by driving the children back and forth for sibling visits.

[36] At this time, according to the evidence filed, the children were now staying with the father in Toronto at least three or four days every week or every other week.

[37] The father described several incidents of violence by the mother in his affidavit materials, some notable examples are:

a. In February of 2016, during an access exchange in a parking lot, the mother flew into a rage and started screaming at the father, which was not unusual. However, on this occasion, she threw her phone onto the ground. When the father bent down to pick it up, the mother hit him so hard on the head that she broke his left ear drum. The father is now hearing impaired in that ear.

b. Following this assault, in March of 2016, the father met the mother at a gas station in Burlington for an access pick up. His brother was in the car with him given what had occurred in February of 2016. Prior to this exchange, the mother had also threatened to cut the father's face, beat him, and ensure that he would be sent to jail. After the exchange, with the children in the back of the father's car, the mother ran towards the father and struck him in the head repeatedly, cutting him in the process. The father's brother intervened and pulled the mother away from him.

[38] Following the March 2016 incident, the mother was charged with two counts of assault and two counts of uttering death threats to the father.

The Father's Application for Custody dated May 20, 2016

[39] It was after the March 2016 assault that the father, for the first time, sought custody of the children. The children remained with the father after the March assault and he brought an application for custody. The father was not represented when he first brought the application.

[40] Although a temporary custody order was not made, the children remained with the father and the mother was granted access in a series of orders. Initially, on consent, the mother was granted unsupervised access on alternating weekends, from Saturday to Sunday.

[41] The mother's access was gradually expanded to Friday to Sunday, as well as other blocks of holiday access. The first three access orders all proceeded on consent of the parties.

[42] On June 13, 2017, the mother pleaded guilty to the March 2016 assault and after completing a PARS program, she received a conditional discharge.

[43] The father described many concerns with the mother's access in his evidence, including the continuation of angry outbursts, repeated questioning and interrogation of the children.

[44] The father also described great difficulties in communicating with the mother, including receiving dozens of angry and harassing messages at home and at work from the mother.

[45] On two separate occasions, the father sought an order that all communication between the parties occur through "Our Family Wizard". The court ordered, on consent, on both occasions that the parties were to restrict their communication to Our Family Wizard. The father agreed to pay for the costs of the program on both occasions.

[46] The mother has never signed up for Our Family Wizard and she has returned the cheques that the father has sent her to pay for the program and sign up fees. The mother acknowledged this in her submissions.

[47] In June of 2018, following an incident with the mother which visibly frightened the children, the father sought an order that all future visits be held at a supervised access centre.

[48] According to the father's evidence, on Friday, June 22, 2018, the mother picked up the girls for an access visit and in the course of the drive to her home the mother verbally abused the children, including calling them "rats" for speaking to their OCL lawyer and social worker. The mother threatened them with harm if they spoke to the OCL again, and she threatened to come to the father's home and kill him.

[49] When the children returned, the father observed that both children were visibly and badly shaken by their mother's conduct and they expressed fear of their mother.

[50] Following this incident, the father brought a motion, this time with counsel's assistance, that all future visits be supervised at a supervised access facility.

[51] The motion was argued on August 15, 2018 before Justice Brian Scully. The OCL supported the father's position for supervised access.

[52] Justice Scully ordered that the mother have supervised access to the children at an APCO supervised access facility every Sunday and that the parties communicate through 'Our Family Wizard", to be paid for by the father.

[53] The undisputed evidence is that the mother continues to refuse to sign up for Our Family Wizard. There is no means of communication between the parties, with the exception of regular letter mail, because the mother will now not communicate with the father by telephone or email.

The Mother's Supervised Access

[54] The supervised access between the mother and the children took place from September of 2018 to December 9, 2018 at an APCO supervised access site. Copies of all of the observation reports prepared by the access supervisors were filed as evidence in this proceedings.

[55] The Observation Reports were filed in this proceedings. The Reports confirm that the children were happy to see their mother and that the visits generally went well, although on several occasions, it is noted that the mother continued to question the girls and pressure them to tell the OCL or the access supervisor that they wanted to live with her.

[56] On December 9, 2018, the mother advised the supervised access staff that she would no longer be attending access visits. She stopped attending the supervised access visits after that time.

[57] The APCO observation reports reflect the mother's decision to discontinue the supervised access in December of 2018. The mother confirmed this in her submissions during the summary judgment hearing.

Events Following the End of Supervised Access Visits

[58] On February 5, 2019, the mother attended the father's home unannounced to see the children. The father was at work and not present however, the paternal grandmother and paternal uncle were present with the children.

[59] On this occasion, according to the evidence filed, the mother banged on the door, demanding to see the children. M. ran upstairs, but J. opened the door, whereupon she was "dragged' outside by the mother and brought to her car before the paternal uncle and grandmother could intervene.

[60] J. was kept in the car with the mother for approximately 20 minutes. During this time, the mother demanded that she tell the OCL that she wanted to live with her mother.

[61] When J. returned to the house, she was visibly crying, shaken and frightened. According to the OCL, this was a very frightening experience for her.

[62] The mother has chosen to have no contact with the children since February of 2019, according to the undisputed evidence heard at the summary judgment hearing.

[63] This was acknowledged and confirmed by the mother at the summary judgment hearing.

[64] The mother also confirmed her position at the hearing that she wants no contact with the children until both want to come and live with her, or the court orders that the children are returned to her care.

[65] The children have been in the father's continuous care and custody since March 4, 2016, more than four years.

The Evidence of U.L. the Mother's Oldest Daughter

[66] U.L., the mother's oldest daughter, also provided affidavit evidence in these proceedings. U.L. is the daughter of a previous relationship of the mother.

[67] U.L. is 26 years old. She is a full-time college student studying Early Childhood Education. She lives in London, Ontario.

[68] U.L. lived with the children, who are her half-sisters, after their birth until they were approximately three and four years old.

[69] U.L. was approximately ten years old when J. was born. U.L. met the children's father at that time. He would stay over at the mother's home approximately every weekend or second weekend.

[70] U.L. described her mother as a very angry, volatile and violent person. However, she does not recall her mother physically abusing her until U.L. was approximately 8 years old.

[71] U.L. did not see her mother physically abuse J. and M., who were much younger than her when they all lived together. However, U.L. observed her mother yelling at all of the children indiscriminately and often. Further, J. and M. witnessed their mother's violent outbursts and beatings of U.L. and T.L.

[72] As U.L. got older, she described her mother beating her with a broomstick until it broke, a belt, and her hands. She has been injured and physically scarred by her mother's beatings. U.L. gave detailed evidence of the physical abuse that she experienced and described specific incidents in her affidavit.

[73] U.L. would see the father on weekends when he came to visit J. and M. He did not witness all of the abuse, however, he did see some of the mother's violent outbursts and he would physically intervene to prevent further violence.

[74] At the age of 13, U.L. was apprehended by the child protection authorities after her biological father (not the respondent father) reported the abuse to child protection authorities following U.L.'s disclosures.

[75] U.L. did not want to see her mother after she was apprehended, nor did her half-sister, T.L., who was also apprehended.

[76] It is U.L.'s understanding, based on information provided, that her mother did not want to have contact with her until such time as U.L. wanted to come home to her. U.L. does not have a relationship with her mother to this day.

[77] After U.L. and T.L. were apprehended, the respondent father facilitated all of the access between them and the children at an access centre.

[78] U.L. continues to see J. and M. on a regular basis and often visits them at their father's home in Toronto. The children have also come to stay with her in London and for the past few years, the children stay with her for a week each summer.

[79] The children and U.L. are very attached to each other. According to U.L., their relationship and continued attachment would not have been possible if the children were still with their mother.

[80] U.L. has had an opportunity to observe the father as a parent to J. and M. for several years now. She describes the father as a kind and gentle person who is deeply engaged with the girls and attentive to their needs. She has never seen him lose his temper.

The Children

[81] The children have lived with the father in the family home for more than four years. The evidence demonstrates that they are well settled there and have a close relationship with their extended family.

[82] The girls have their own bedroom which their father has renovated so that it can accommodate three people, because their older sister U.L. visits and stays over often.

[83] Both girls are or have been involved in a number of extra-curricular activities, such as swimming, gymnastics, and ballet. The father gave detailed evidence about their daily routines.

[84] The children attend the same school, which is a very close walk from their home, and the same school that the father attended when he was young.

[85] The children have some special needs. Both children have suffered from anxiety regarding their parents' separation, the conflict between their parents, their relationship with their mother, and these court proceedings. The father is actively involved in the children's school and has arranged for the children to regularly see a social worker for counselling.

[86] M., the younger child, has been diagnosed with autism and may have some language development issues. The father has obtained a pediatrician for both children who has made appropriate referrals for a development assessment for M. M. also has the assistance of a special education teacher and a special, smaller classroom. Both girls also have resource teachers at school.

The Children's Views and Preferences

[87] The children have had counsel and a social worker from the Office of the Children's Lawyer since 2017.

[88] Ms. Marcy Urbas, a clinical investigator with the OCL filed an extensive Affidavit in these proceedings. Ms. Urbas has been a member of the provincial wide panel of clinicians for the OCL since 2002. She has conducted numerous custody and access investigations and reports and frequently assists counsel, such as in this case.

[89] Ms. Urbas was assigned to this case in 2017, to assist Mr. Millstone, counsel for the children.

[90] Both counsel and Ms. Urbas have conducted more than 14 separate interviews with the children (28 interviews in total) over the course of their involvement. All of the interviews have taken place at the children's school or Mr. Millstone's offices.

[91] In addition, they have interviewed the parents and numerous collaterals, such as the children's teachers, social workers, school principal, counsellors, and family doctor, on multiple occasions.

[92] It is Ms. Urbas' clinical opinion that each of the children have stated their views and preferences independently of each other and of their parents. Their views and preferences were age appropriate in strength. Their views were not always consistent and varied according to their circumstances over the period of time from January 30, 2018 to October 16, 2019, the last interviews that took place.

[93] The children's views and preferences have evolved. Initially, early on in the proceedings, the children expressed that they wished to spend time with both parents and that they wished the fighting between their parents would stop.

[94] However, throughout 2018 and 2019, the children consistently expressed that they wished to live with their father and visit their mother. The children's views about visits were different. M., who is younger, expressed at one point that she wished to visit her mother at her home, but J. expressed that she wished to visit her mother at the supervised access centre, what both children called "the daycare".

[95] Both children were aware that their mother had chosen to stop visiting with them at the supervised access centre because they were present on the day that she told the access supervisor that she would no longer be attending. Both children expressed that they enjoyed the visits at the supervised access centre. Both children are aware that their mother no longer calls them.

[96] At the time of the hearing, both children had not seen their mother for almost one year. Both children expressed that they missed their mother and would like to see her. They enjoyed it when their mother made them food or did their hair. The mother is able to braid and comb the children's hair and the children expressed that they missed this.

[97] However, in several interviews the children also expressed that they were also frightened of their mother when she got angry, or questioned them or yelled at them or others. At this time, both children expressed that they would prefer visits to occur at the supervised access centre.

Part Four: The Law and Governing Principles

Summary Judgment in Family Law Cases

[98] The father brings this motion pursuant to Rule 16 of the Family Law Rules, Ont. Reg. 114/99, as amended.

[99] On May 2, 2015, Rule 16 was amended to broaden the powers of the court on a summary judgment motion.

[100] The relevant provisions of Rule 16, including the court's expanded powers set out in subrules (6.1) and (6.2), are as follows:

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

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

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

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[101] The test on a summary judgment motion set out in subrule 16(6) is whether there is a genuine issue requiring a trial. If the court determines the answer to this question is no, then the rule provides that the court shall make a final order accordingly.

[102] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted, as well as other principles that govern the process.

[103] In A.E.A. v. F.A.H., 2015 ONCJ 339, Justice Stanley Sherr succinctly summarized those principles as follows at paragraphs 8 to 15 of his decision:

[8] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers. The legal principles set out in Bedard, above, would still apply at this stage.

[9] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).

[10] If there are concerns about credibility or clarification of the evidence then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).

[11] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64).

[12] The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.

[13] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).

[14] The court also set out the following:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).

b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).

c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (paragraph 34).

d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).

e) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).

f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).

g) On a summary judgment motion, the evidence need not be equivalent to that at trial but must be such that the judge is confident that the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding (paragraph 57).

h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial (paragraph 58).

[15] The principles in Hryniak have been applied to summary judgment motions in family law cases since the amendments to rule 16 of the rules became effective on May 2, 2015. See: Children's Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378, per Justice Timothy Minnema and Children's Aid Society of Toronto v. A.G. and A.B., 2015 ONCJ 331, per Justice Roselyn Zisman.

[16] It is also necessary to consider subrule 2 of the rules to ensure that a case is dealt with justly by ensuring 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. A summary judgment motion is a tool that can contain and control a child's drift in litigation. This appears to also be in keeping with the process set out by the Supreme Court of Canada in Hryniak. See: Children's Aid Society of Toronto v. A.G. and A.B., supra.

Custody and Access Issues

[104] The determination of custody and access issues are governed by the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended ("the CLRA").

[105] Subsections 24(1) and 24(2) of the CLRA set out that the court must determine custody and access orders on the basis of the best interests of the child. A number of factors are set out in the legislation for the court to consider. These subsections state as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(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) any plans proposed 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.

Past conduct

(3) A person's past conduct shall be considered only,

a) in accordance with subsection (4); or

b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

a) his or her spouse;

b) a parent of the child to whom the application relates;

c) a member of the person's household; or

d) any child.

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[106] The best interests of the child must be ascertained from the lens of the child rather than from the parents' perspective. Parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child. See: Young v. Young, [1993] 4 S.C.R. 3, at paragraph 74; Gordon v. Goertz, [1996] 2 S.C.R. 27, at paragraphs 50 and 54.

[107] The best interests of the child have also been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. See: Pastway v. Pastway (1999), 49 R.F.L. (4th) 375.

[108] A child should have maximum contact with both parents so long as it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[109] A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.

[110] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946.

[111] A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access should only be ordered in extreme circumstances. See: Worthington v. Worthington.

Part Five: Analysis

[112] I find that I am able to grant summary judgment in this matter on all issues without using the expanded powers set out in subrules 16(6.1) and (6.2) of the Family Law Rules.

Custody

[113] There is no triable issue that the father shall have sole custody of the children for the following reasons, all of which is undisputed evidence:

a. The children have remained in the father's continuous care and custody since March of 2016, more than 4 years.

b. The children have settled well in their father's care and home and are doing well in their father's care.

c. The father has made responsible decisions for the children. He has been actively involved in the children's education, and in meeting their emotional and physical needs. He has arranged for counselling, additional resources and medical care for the children. He has been proactive in addressing the children's special needs.

d. The children have remained in stable and loving home environment and community with the father.

e. The children have had no contact with their mother since February of 2019, because the mother has chosen not to have any contact with the children unless the children are returned to her care. The mother confirmed this position at the summary judgment hearing.

f. The mother has made it very clear that "either [her] children return home and [the father] visits" because if she has to go and visit the children, she will not do so. The mother cut off all phone contact with the children and the father in 2019.

g. The mother refused to continue with the supervised access with the children and has stopped all supervised visits in December of 2018. The mother confirmed that she advised the APCO supervisors that she would not be returning in December of 2018.

h. There is no communication between the parties. The mother refuses to have contact with the father and expresses that she "hates him with a passion" and "wants him to die".

i. The mother also refuses to communicate through "Our Family Wizard", despite two court orders and the father agreeing to pay for the registration and fees. The mother has returned both cheques that the father delivered to her for this purpose.

j. The mother states that she will only communicate with the father through a "third party" yet she provided no third party that was willing and able to do so at the summary judgment hearing.

Access

[114] There is no triable issue that if access is to take place, it must continue to be supervised, either at a supervised access facility, or at the father's discretion. I make this determination based on the undisputed evidence and for the following reasons:

a. The mother has well-documented history of serious anger management issues, leading to a lengthy involvement of child protection agencies in the past. She is unable to regulate her anger and violent behaviour, which has significantly frightened her children.

b. The mother has a history of violent criminal behaviour. She has been convicted of assaulting the father. Her two older children were apprehended by the Children's Aid Society and permanently removed from her care.

c. The mother has taken no steps to address what appear to be serious anger management issues, unresolved trauma, and an inability to emotionally self-regulate, which has interfered with her ability to parent.

d. The overwhelming evidence in this hearing from the child protection proceedings, the evidence of mother's oldest daughter, and the father that the mother has some significant parenting deficits which she has refused to address.

e. The court saw this first hand at the hearing of the summary judgment motion. Even in a controlled setting, the mother was unable to regulate her anger and her emotions.

f. The court reviewed the observation reports of the supervised access centre carefully. Even in a supervised setting, there were several occasions when the mother questioned the children and asked them to tell the access supervisors who they wanted to live with and when they were going to return to her home.

g. The mother has no insight into the emotional harm that she is causing her children by refusing to see them unless they come to live with her.

h. The children's views and preferences have evolved over time but are now clear and consistent: they wish to continue living with their father and to see their mother, preferably at a supervised access facility.

i. There is no evidence that the children's views and preferences are influenced by the father, or that the children are "brainwashed", as the mother stated during the summary judgment hearing. If that were the case, then the children would not have told the clinical investigator on several occasions that they miss their mother, even though they have been frightened by her words and her conduct. They expressed missing her food and when she did their hair, which is important to them. They wished that they could have a "normal" relationship with her.

Travel and Obtaining Government Documents for the Children

[115] There is no genuine issue requiring a trial that the father should be able to travel with the children and obtain government issued identification documents for the children without the consent of the mother for the following reasons, based on the undisputed evidence at this hearing:

a. The parties do not communicate and the mother has refused to communicate with the father under any circumstances.

b. The mother has cut off all phone and email contact.

c. The evidence is clear that the mother would not readily cooperate with the father in his requests to travel with the children outside of Canada or to obtain government documents such as health cards or passports for the children.

d. There is no evidence that the father is a flight risk or would permanently remove the children from Canada. The father was born and raised in Toronto, and he has lived and worked in Toronto all of his life. The father and the children continue to live in the home where he grew up with extended family.

e. It is in the children's best interests to be able to travel with their father for vacation or other purposes.

Part Six: Conclusion and Final Order

[116] The father's motion for summary judgment is granted on the following terms and conditions:

1. The father shall have final custody of the children.

2. The father may obtain and renew all government issued documents for the children, including the children's passports and health cards, without the consent of the mother.

3. The father or a delegate of his choosing may travel outside of Canada with the children for vacation, school related, family or educational purposes, without the mother's consent required.

4. The mother's approval of the form and content of the draft final order is dispensed with.

[117] During this hearing, the court heard evidence of the mother's own very traumatic background and childhood. This trauma has gone untreated and it has impacted the mother's mental and emotional health and her ability to parent her children.

[118] The children miss their mother and would like to see her, but in a safe and secure setting. It is up to the mother now to obtain the professional help that will allow her to have a healthy and loving relationship with her children. The court urges her to do so, for her children's sake.

[119] If the father seeks his costs of this motion, he is to serve and file written submissions by July 31. The mother shall have until August 31 to respond. Written submissions shall not exceed three pages, not including any offers to settle or bill of costs and shall be delivered to the judicial secretary.

[120] The court wishes to thank counsel for the father and counsel for the children from the Office of the Children's Lawyer for their assistance and their professionalism throughout this hearing.

Released: June 4, 2020

Signed: Justice Sheilagh O'Connell