Court File and Parties
CITATION: J. P. v. les services aux enfants et adultes de Prescott-Russell, 2010 ONSC 1218
COURT FILE NO.: 09-DV-1550
DATE: 20100216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, HENNESSY AND MARANGER JJ.
B E T W E E N:
J.P.
Appellant
- and -
LES SERVICES AUX ENFANTS AT ADULTES DE PRESCOTT-RUSSELL
Respondent
Derek Van Dusen, for the Appellant
Christine M. Lacasse, for the Respondent
Susan Galarneau, for the Children’s Lawyer
HEARD at Ottawa: February 16, 2010
Reasons for Judgment
Swinton J. (Orally):
[1] The appellant appeals from the judgment of Charbonneau J. dated August 31, 2009, in which he granted a motion for summary judgment and ordered that the child K be made a Crown ward.
[2] The motion judge determined that there was no genuine issue of fact requiring a trial. The evidence before him showed clearly that K continued to be a child in need of protection. Therefore, the real issue for him was what was the appropriate order, taking into account K’s best interests. The limited options were Crown wardship or return to the mother under Society supervision.
[3] The motion judge reviewed the entire continuing record, which showed the lengthy involvement between K’s family and the Society, K’s multiple problems and special needs, and the recommendations of psychological assessors that K not be returned to either parent’s care. While the appellant filed an affidavit in response, the motions judge concluded that it did not raise a triable issue with respect to whether it is in K’s best interests to return to the appellant’s care. Given the appellant’s own health issues, her inability to provide a stable environment for K, and her difficulty in working with the Society, he concluded that there was no evidence that she could care for K in the short or medium term.
[4] While the appellant argues that the motion judge failed to consider whether efforts had been made by the Society to assist the family in the home prior to the intervention sought, as required by s. 57(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11, there is ample evidence of years of effort by the Society to assist the family.
[5] Moreover, there was no evidence from the mother before the motion judge that she had an adequate plan to care for K.
[6] While the Society’s factum before the motion judge failed to pinpoint the evidence in the continuing record on which it relied, the appellant’s counsel filed a similar factum and raised no objection at the hearing about the Society’s factum. Both parties referred to the continuing record without pointing to particular points in the record. There was no procedural unfairness because the motion judge reviewed the record before reaching his decision.
[7] Both the Society and the appellant have filed fresh evidence in support of their positions on appeal. The appellant’s evidence does not raise a triable issue. Given K’s ongoing and grave problems, the appellant has not put forward any new evidence to show that there is a genuine issue for trial as to whether it would be in K’s best interests to be returned to her care.
[8] Therefore, the appeal is dismissed. No order for costs of the appeal.
Swinton J.
Hennessy J.
Maranger J.
Date of Reasons: February 16, 2010
Date Reasons Released: Click here - type date
CITATION: J. P. v. les services aux enfants et adultes de Prescott-Russell, 2010 ONSC 1218
COURT FILE NO.: 09-DV-1550
DATE: 20100216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
swinton, hennessy and maranger Jj.
B E T W E E N:
J.P.
Appellant
-and-
LES SERVICES AUX ENFANTS ET ADULTES DE PRESCOTT-RUSSELL
Respondent
REASONS FOR JUDGMENT
Swinton J. (Orally)
Released: Click here - type date