WARNING The court hearing this matter directs that the following notice should 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.
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2023 01 20 COURT FILE No.: Sault Ste. Marie 94/20
BETWEEN:
CHILDREN’S AID SOCIETY OF ALGOMA Applicant,
— AND —
N.J. and L.L. Respondents
Before: Justice Heather-Ann Mendes
Heard on: October 31, 2022 Reasons for Judgment released on: January 20, 2023
Counsel: Ryan Lindenbach........................................................... counsel for the applicant society Eric McCooeye.................................................................. counsel for the respondent N.J. L.L.................................................................................................................. on his own behalf
Mendes J.:
Overview
[1] This is the decision of a motion for summary judgment brought by the Children’s Aid Society of Algoma (hereinafter “the Society”) on a child protection application commenced on August 21, 2020, regarding the child G. born […], 2018.
[2] The mother of the child is the respondent, N.J. and the father of the child is the respondent, L.L.
[3] On August 19, 2020, the child was removed from the mother’s care, with a warrant, and brought to place of safety, namely the maternal grandmother’s home, as her home was designated as a place of safety.
[4] The protection application commenced by the Society sought a finding pursuant to section 74(2)(b)(i) and 74(2)(b)(ii) of the Child, Youth and Family Services Act (hereinafter “CYFSA”) that there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by the person’s failure to care for, provide for, supervise or protect the child adequately and pattern of neglect in caring for, providing for supervising or protection the child.
[5] The Society also sought a finding under section 74(2)(h), that there is a risk that the child is likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.
[6] The application sought a 12-month supervision order placing the child in the care of the maternal grandmother with supervised access provisions to the mother and father in the discretion of the Society.
[7] At the five-day removal hearing on August 24, 2020, the child was returned to the temporary care and custody of the mother subject to the supervision of the Society on an interim without prejudice basis, with access provisions for the father subject to supervision. The without prejudice term of the order of August 24, 2020, was removed on October 6, 2020.
[8] The Society amended the protection application on October 12, 2021 and sought a deemed custody order in favour of the mother and that the father have access to the child supervised by a mutually agreed upon third party. Failing agreement between the parents, access will be at the supervised access facility.
[9] The Society brought a summary judgment motion on September 28, 2022 seeking a final order regarding a finding pursuant to section 74(2)(b)(i); a deemed custody order in favour of the mother; that the father have reasonable access to the child supervised by a mutually agreed upon third party, failing which, supervised at the supervised access facility and that all outstanding child protection orders be terminated.
[10] The summary judgment motion was heard on October 31, 2022. The mother is in agreement with the order regarding the finding and signed an agreed statement of fact on December 7, 2021. The mother is also in agreement with both the deemed custody order in her favour and access provisions to the father.
[11] The father did not oppose the finding being made as well as the deemed custody order in favour of the mother, but sought that his access to the child simply be supervised at the mother’s discretion only and not at the supervised access facility.
Background & Evidence
[12] The parties were involved in an on-again-off-again relationship. The mother is from in and around Sault Ste. Marie and the father is from in and around Barrie. The parties separated in or about December 2019.
[13] The parties’ relationship involved domestic violence and the father was charged on December 27, 2019, with three counts of assault; one count of sexual assault and one count of utter threat, all involving the mother.
[14] Despite the father being under conditions not to communicate with the mother, the parties continued to communicate and contact each other, and the mother facilitated parenting-time for the father with the child in the Barrie area.
[15] The mother arranged a visit with the father and the child on July 27, 2020. The mother returned to Sault Ste. Marie with the child on August 4, 2020 and advised the maternal grandmother that she planned to relocate with the child to Orillia, Ontario. The mother returned to southern Ontario to secure a residence on August 15, 2020.
[16] Due to the pattern of domestic violence between the parties and continued breaches of the father’s release orders, the Society sought and was granted a warrant to bring the child to a place of safety on August 19, 2020. The child was placed in the care of the maternal grandmother as her home was designated as a place of safety.
[17] The mother has previously struggled with her mental health wellness. The mother was hospitalized for self-harming behaviours on August 21, 2020, when she cut her wrist with a knife. The mother was released from the hospital on August 22, 2020. The mother has not had any challenges with her mental health since August 2020.
[18] At the removal hearing on August 24, 2020, the child was returned to reside in the care of the mother with specific provisions that the mother and child reside in the home of the maternal grandmother or another residence approved of by the Society or the court. In addition, the child could not be removed from the District of Algoma without the written approval of the Society or by further court order.
[19] In November 2020 the Society approved a plan for the mother to relocate from the maternal grandmother’s home in Echo Bay to her own residence in Sault Ste. Marie. The mother secured an apartment for January 1, 2021 and moved.
[20] Since the child was placed in the mother’s care on August 24, 2020, she has cooperated with the Society and met all of the child’s needs such that the child has met or exceeded her developmental milestones. There have been no concerns with respect to the mother’s ability to meet the child’s needs or appropriately protect the child.
[21] The reports regarding the mother’s care of the child and her interactions with the child are appropriate and genuine. The mother’s home is clean, and she has all the required amenities for the child. The mother is working full-time, and she is attending appropriate counselling services to address her mental wellness. The mother has cooperated with the Society and signed consents when requested.
[22] The mother appears to have also gained and demonstrated insight regarding the concerns that gave rise to the protection application being commenced namely stemming from her volatile relationship with the father.
[23] The father’s access with the child has been limited due to the COVID-19 global pandemic and given the distance to travel to exercise access. In-person visits were arranged for the father in Sault Ste. Marie for September 2020, however the father was arrested for impaired driving as well as driving while prohibited when he travelled to Sault Ste. Marie for his visit with the child.
[24] As such, virtual access visits were arranged for the father as of December 2020 given the issue with the father’s transportation. The father has exercised virtual visits with the child initially once per week but has progressed to twice per week facilitated through the maternal family. The virtual visits with the child have proceeded consistently and without incident.
[25] In April 2021, the paternal grandmother was approved to supervise the father’s visits with the child in-person once the COVID-19 measures were lifted and the father could travel to Sault Ste. Marie.
[26] In person visits for the father occurred in September 2021; January 2022 and May 2022; During the visits, which were supervised by the Society, as the paternal grandmother had not attended in Sault Ste. Marie, the child appeared comfortable with the father, and they interacted appropriately and played together throughout the visit. The mother is supportive of the father’s access with the child.
[27] The father has resolved all his outstanding charges including both the impaired driving and domestic violence charges regarding the mother. The father is presently subject to a 24-month probation order made on March 10, 2022. The probation order prohibits the father from contacting and communicating with the mother as well as remaining 200 metres away from the mother expect pursuant to a valid family court order or for the purpose of making arrangements through a third party for the purpose of having contact with the child.
Law
[28] The court has jurisdiction to deal with a child protection matter by way of summary judgment. The test is found at Rule 16 of the Family Law Rules. The Rule requires that the moving party demonstrate by way of affidavits or other evidence that there is no genuine issue requiring a trial.
[29] The general principles applicable to summary judgment motions are well established by the Supreme Court of Canada in [Hryniak v. Mauldin][1], that there is no genuine issue requiring a trial when the judge can reach a fair and just determination on the merits of a motion for summary judgment. In Hryniak, the court provided the following direction to determine whether summary judgment ought to be granted:
66 On a motion for summary judgment under rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable, and proportionate procedure, under rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest 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.
67 Inquiring first as to whether the use of the powers under rule 20.04(2.1) will allow the dispute to be resolved by way of summary judgment, before asking whether the interest of justice requires that those powers be exercised only at trial, emphasizes that these powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution. As well, by first determining the consequences of using the new powers, the benefit of their use is clearer. This will assist in determining whether it is in the interest of justice that they be exercised only at trial.
68 While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action. This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate. There is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense. In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment, without engaging in the full inquiry delineated above.
[30] The Court of Appeal has held that the summary judgment test applied in child protection cases is, at its core, the same as in other cases. [2] However, the test must be applied with a view to the specific context and to the particularly high stakes and Charter rights of parents and children in child protection proceedings. [3] The Court of Appeal has maintained a consistent approach, both before and after the Hryniak decision, that summary judgment in child protection cases remains cautionary.
[31] This does not mean that summary judgment is not appropriate in certain child protection proceedings, provided that summary judgment can “ensure a fair and just determination in a prompt and proportionate manner”. [4]
[32] The proper approach to summary judgment in child protection proceedings was summarized by the Court of Appeal in [Kawartha-Haliburton Children’s Aid Society v. M.W.][5] as follows:
Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. Although, Rule 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
Analysis
[33] The court must first determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in Rule 16 (6.1).
[34] The parties all agree regarding the issue of a finding, as does the court, that the child was in need of protection pursuant to section 74(2)(b)(i) given the events that occurred at the time the child protection application was commenced as detailed above and as set out in the signed statement of agreed facts.
[35] Further, the parties are all in agreement regarding a deemed custody order in favour of the mother as the child has resided in the care of the mother since August 24, 2020 without any issue. The child is well settled in the care of the mother and the mother has met all of the child’s needs and ensured that her milestones are being achieved.
[36] Based on the evidence filed and that there have been no issues with the mother’s care of the child since August 2020, the court is in agreement with granting the deemed custody order in favour of the mother.
[37] The contentious issue is that of the father’s access with the child. The parties agree that the father shall have reasonable access and parenting-time with the child on reasonable notice to the mother, supervised by a third party to be agreed upon between the mother and father.
[38] The matter not in agreement is what should occur if there is no mutually agreed upon third party to supervise the father’s access. The Society and the mother seek that failing agreement, the father’s access occur at the supervised access centre.
[39] The father seeks that his access simply be supervised by a third party as agreed between him and the mother and that there be no mention of the supervised access centre.
[40] The father feels that access at the supervised access centre does not need to be mentioned in the final order as he is confident that he and the mother are able to agree upon a third party.
[41] That being said, there is a history of domestic violence between the parties and given the current probation order which will remain in effect until March 2024, there needs to be a default solution regarding a supervisor for the father’s access in the event that the parties are not able to agree upon a third party supervisor.
[42] The father did not file any material in support of his position opposing the requirement for supervision at the supervised access centre. Further, he did not make any submissions as to why the default position of the supervised access facility would not be appropriate, especially in light of the history between the parties.
[43] The father cannot merely make broad sweeping statements or simply make allegations or bald denials. The father is to point to specific facts and evidence as to why there is a genuine issue for trial on this matter.
[44] The father has not consistently exercised in-person visits with the child and there has been a significant gap in time, at least five months at the time of the summary judgment motion hearing, since the father last saw the child in-person.
[45] The court does not accept or agree with the father’s position that there be no mention of access at the supervised access centre if there is no agreement between he and the mother, given the dynamics of the parents relationship.
[46] The parents have a history of having an on-again-off-again relationship which leads the court to believe that there are periods of time that they are able to get along and other periods of time that they are not able to get along.
[47] During the periods of time when the parents are not able to get along there needs to be a default for the father’s access such that there is no disruption to the times the father has access with the child.
[48] Further, there is a confirmed history of domestic violence, such that the father is presently under a probation order preventing communication with the mother. The father’s probation order will continue to in place for the next 13 months. As such, the court is concerned about the power imbalance between the parties and how this will impact decisions regarding a supervisor for the father’s access with the child if there is no default order regarding supervision in the event that the parents do not mutually agree upon a third party supervisor.
[49] As such, it is appropriate that if there is no agreement between the parents regarding a third party supervisor for the father’s access with the child, the father’s access shall be at the supervised access centre.
Conclusion
[50] It is in the interest of justice for the court to determine the issues in this case summarily. The summary judgment process allows the court to fairly and justly adjudicate this matter.
[51] In this summary judgment process, the court can make the necessary findings of fact, as set out above, and apply the law to the facts.
[52] The court finds that the summary judgment process in this matter is proportionate to the issues that are before the court, that being custody and access. The court is not being asked to terminate the parental rights of either parent in this case.
[53] As such, based on the above and the findings of fact made from the trial worthy evidence filed by the Society, the court is satisfied 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 there is no genuine issue requiring a trial of the matter.
[54] The only viable permanent placement for the child is with the mother as she has been the consistent and stable caregiver for the child since August 2020. The evidence confirms that it is in the child’s best interests that the mother be granted custody. If this matter were to proceed to trial, this would be the only possible outcome.
[55] Regarding the father’s access, the father agrees that he be entitled to reasonable access/parenting-time with the child, upon reasonable notice to the mother, supervised by a mutually agreed upon third party.
[56] For the reasons set out above, the court is satisfied that the father’s access with the child should include a provision that if the parties cannot agree upon a third party to supervise the father’s access, that the access shall occur at the supervised access centre.
[57] Based on the above, a final order shall issue as follows:
(1) The child G. born […], 2018, is a child in need of protection pursuant to section 74(2)(b)(i) of the Child, Youth and Family Services Act, based on the facts set out in the Statement of Agreed Fact filed December 14, 2021.
(2) Pursuant to section 102 of the Child, Youth and Family Services Act, the child, G., born […], 2018, shall be placed in the custody of the mother, N.J. The mother shall have full decision-making responsibility with respect to the child, G., born […], 2018.
(3) The father, L.L., shall have reasonable access, and parenting-time, including virtual visits twice per week, with the child, G., on reasonable notice to the mother, supervised by a third party to be agreed upon between N.J. and L.L. Should no agreement be reached, L.L.’s access shall occur at the supervised access centre.
(4) Any access shall occur in the district in which the child ordinarily resides, unless otherwise mutually agreed upon in writing by N.J. and L.L.
(5) N.J. and L.L. shall communicate in writing, via email, regarding the father, L.L.’s access with the child G. born […], 2018. All communications between N.J. and L.L. shall be child focused, civil and respectful.
(6) The Children’s Aid Society of Algoma shall be served notice upon the filing of any application or motion to change to vary this order.
(7) All outstanding child protection orders made in the application dated August 21, 2020, and amended application filed October 21, 2021 in court file 94/20 regarding the child, G. born […], 2018 are hereby terminated.
[58] Given that the final order has issued in this matter as set out above, the court date of February 1, 2023 at 9:30 a.m. via Zoom is hereby vacated and the matter struck from the Child Protection List.
Released: January 20, 2022 Justice Heather-Ann Mendes Ontario Court of Justice
Citations
[1]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (https://www.canlii.org/en/ca/scc/doc/2014/2014scc7/2014scc7.html) [2]: L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, paragraph 52 (https://www.canlii.org/en/on/onca/doc/2019/2019onca841/2019onca841.html) [3]: New Brunswick (Minister of Health & Community Services) v. G. (J.), 1999 SCC 653, [1999] 3 S.C.R. 46, paragraph 76 (https://www.canlii.org/en/ca/scc/doc/1999/1999canlii653/1999canlii653.html) [4]: Ibid at paragraph 51 [5]: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32 paragraph 80 (https://www.canlii.org/en/on/onca/doc/2019/2019onca316/2019onca316.html)