Simcoe Muskoka Child, Youth and Family Services v. L.V., 2019 ONSC 1208
CITATION: Simcoe Muskoka Child, Youth and Family Services v. L.V., 2019 ONSC 1208
DIVISIONAL COURT FILE NO.: 1010-16
DATE: 20190225
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, MYERS and SHEARD JJ.
B E T W E E N:
SIMCOE MUSKOKA CHILD, YOUTH and FAMILY SERVICES
Applicant / Respondent on Appeal
Rachel Leck, lawyer for SMCYFS
- and -
DH
Respondent / Appellant on Appeal
S. Steven Sands, lawyer for DH
- and -
LV and OFFICE OF THE CHILDREN’S LAWYER
Respondents / Respondents on Appeal
Jason Herbert, lawyer for LV
Ian Ross, for OCL
Heard at Oshawa: January 25, 2019
W A R N I N G
This is a case subject to the Child, Youth and Family Services Act, 2017, and specifically to the publication prohibitions in subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deal with the penal consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(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.
BY THE COURT:
REASONS FOR JUDGMENT
Overview
[1] In two incidents during the summer of 2014, the 11 year old daughter of the appellant father, DH, and the respondent mother, LV, in states of great emotional distress, threatened suicide:
On July 16, 2014, “[the child] was emotionally distraught [during an access visit] and told [him] she wanted to just kill herself.” The father did not take the child to see a medical professional, call the child’s therapist, the hospital, the police or the mother. Instead, the father wrote to the child’s therapist and to the child’s counsel and litigation guardian in the action he initiated against the Society;
… on August 18, 2014, the child became agitated early in the day. The father contacted some medical professionals and continued “off and on” through the day to try to “reach” the child. At his cross-examination, the father testified that he had been talking to the child about P[arental] A[lienation] S[yndrome] that day in a “lengthy discussion” and that he tried to explain to the child “that her bad behaviour and expressions of hatred were not real, but something that was being put on her…there was a name for it… PAS.” The child wrote a note that said, “I am not PAS”. The father acknowledged that the child was aware of his conversations about having her institutionalized. During dinner, the child became hostile and told the father how much she hated him. The father told the child to show him and she punched him in the face a number of times. When she finished, the father asked the child if he should call the police: he told her it was wrong to assault people and that she had assaulted both he and his wife that weekend. The child went to the knife rack, removed a “razor sharp knife” which she wielded at the father’s wife, telling her she hated her. The child then pointed the knife at her own chest/throat area, started crying and said she was going to kill herself. The father called 911. The father appended a photograph to his affidavit showing him tackling the child to get the knife away from her. The police and emergency services personnel took the child to the hospital (Reasons, para. 22(d) and (f)).
[2] Following these incidents, the child has said consistently that she does not want to return to her father’s care:
The parties agreed that the child’s counsel could provide evidence on this summary judgment motion. The child stated that she was feeling constant stress and pressure in her relationship with the father and having unsafe feelings in his care. She reported that the father would say bad things about the mother. She stated that on August 18, 2014 the father invited her to hit him. He then told her she would be charged with assault and that the police would take her and she would be “institutionalized”. She put a knife to her throat. The father tackled her and she went to the hospital. Since that day, she has not wanted to have anything to do with the father. She was clear and consistent that she did not want to go back to the father’s care. The child stated that even if the father said he would change, he would only “do it for show” and “then he would go back”.
The child’s counsel advised the court that from his first meeting with the child in April 2011, the child has clearly and consistently closely identified with the mother and raised concerns about her relationship with the father. Although the child has been clear and consistent in her wish to have no physical contact with the father, the child would agree that they could communicate in writing (Reasons, paras. 20-21).
[3] On November 14, 2016, for reasons reported at 2016 ONSC 7039 (the “Reasons”), Quinlan J. granted summary judgment in this child protection proceeding, finding the child in need of protection and placing her in the custody of the respondent mother. Quinlan J. granted access to the appellant father only by written communication not exceeding once per month.
[4] The appellant father has not availed himself of the access granted by Quinlan J.: he has not seen or communicated with his daughter since August 2014, 4.5 years ago.
[5] The father appeals the decision of Quinlan J. and asks that we send this case back for trial before a different judge.
Summary and Disposition
[6] This child was in need of protection. The parents’ family law conflict caused that need. The father’s acknowledged and inappropriate conduct towards his daughter was a clear and obvious cause of her great distress. The father did not establish that his daughter was suffering parental alienation syndrome. Thus, on the record before the motions judge, the situation was clear and the motions judge made no reversible error in deciding as she did.
Fresh Evidence on Appeal and Adjournment Request
[7] The Office of the Children’s Lawyer (“OCL”) moved to admit fresh evidence on appeal about the current wishes and circumstances of the child. The appellant sought to adjourn the appeal to respond. This court denied the adjournment request and admitted the fresh evidence for handwritten reasons endorsed at the hearing.
[8] Updated evidence concerning the child who is the subject of the proceeding is generally admissible and welcome in child protection appeals. Subsection 69(6) of the Child and Family Services Act (now s.121(6) of the Child, Youth and Family Services Act, 2017, S.O, 2017, c.14, Sch. 1 (the “CYSFA”)) contemplates it, and in a case such as this, where the child is nearly 16 years old and the appeal has taken more than two years to reach this court, the need for current information is obvious.
Jurisdiction and Standard of Review
[9] An appeal from a child protection decision made by a judge of the Superior Court lies to this court under s.121(1) of the CYFSA and s. 21.9.1 of the Courts of Justice Act, RSO 1990, c. C.43. The standard of review is correctness for questions of law and palpable and overriding error for questions of fact (Housen v. Nikolaisen, 2002 SCC 33).
Summary Judgment
[10] The motions judge did not have the benefit of this court’s decision in Kawartha-Haliburton Children’s Aid Society v M.W., 2018 ONSC 2783, which applies the Supreme Court of Canada’s decision in Hryniak v Mauldin, 2014 SCC 7, to motions for summary judgment in child protection cases. Instead, the motions judge used the more onerous test for summary judgment that pre-dated these decisions. Applying this more onerous test, she was satisfied that summary judgment should be granted.
[11] The appellant opposed summary judgment on the basis that he required a trial to bring forward further evidence and to cross-examine further witnesses. It is not an answer to a motion for summary judgment to say that further evidence may be available at trial. The motions judge correctly referred to the established principle that the court is entitled to assume that all available evidence has been put before the court in some form: a responding party must put his or her best foot forward (“lead trumps”) on a motion for summary judgment, and cannot rest on allegations that he hopes to prove later, at trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200; aff’d 2014 ONSC 878; leave to appeal denied 2015 39803 (SCC).
[12] The appellant was also concerned with some of the evidence, which he felt should not be admissible or should be given little weight because it was hearsay. The motions judge found that she was able to reach her decision based on the evidence of the child that was admitted on consent, the appellant’s own admissions, and evidence upon which the appellant relied (Reasons, para. 30). The motions judge approached the motion with appropriate caution recognizing the high stakes involved for the parties. She noted the court’s enhanced fact-finding powers under Rule 16(6.1) of the Family Law Rules. She saw no need to invoke those powers in light of her ability to resolve the matter on the uncontested evidence upon which she relied.
[13] In summary: the motions judge erred in applying the more stringent pre-Hryniak test for summary judgment, rather than the test set out in Kawartha-Haliburton Children’s Aid Society v M.W. But this error did not affect the result. There was no need for a trial to establish that the child was in need of protection. In determining the appropriate placement for the child, the motions judge proceeded on the basis of evidence that did not engage hearsay concerns, found that the father was the proximate cause of the child’s acute distress on the basis of a record that supports those findings, and properly rejected the father’s allegations of parental alienation. The trial judge did not err in deciding the matter on a motion for summary judgment.
The Appellant’s Arguments
[14] The appellant bears the onus of establishing that the motions judge made a palpable and overriding error of fact or mixed fact and law in reaching her findings. He argued that, although the judge said that she was relying on only evidence that he gave, relied upon, or consented to being admitted, she was affected by inadmissible hearsay contained in the extensive record. He pointed to a number of findings of fact made by the motions judge that, he argued, show that the motions judge relied upon inadmissible hearsay or incorrectly used historic narrative, beyond the three sources of evidence to which the judge had confined herself. Oral argument was focused on the appellant identifying what he said were these problems.
[15] The respondents took the court to the evidentiary support for each of the findings to which the appellant objected. Each comes from the appellant himself, the evidence of the child admitted on consent, or a nurse’s hospital admission note that the appellant used as part of his argument (and which was therefore available for the motions judge to use). All but one of the pieces of evidence to which the appellant objected were anchored in the record and were relied upon properly by the motions judge.
[16] In respect to the one piece of evidence that may have been misinterpreted, the appellant took strong objection to the motions judge’s finding that he discussed his concerns with his daughter about her suffering from PAS as early as February 2013. He argues that the motions judge put an errant interpretation on an email that the appellant wrote in February 2013 and then blamed him for pressuring the child for more than a year, when his argument was that it was the mother who was pressuring the child by continually involving police, CAS workers, and third-party medical professionals in the child’s life.
[17] The February, 2013 email is capable of interpretation for and against the appellant’s position. There is merit in the appellant’s argument that, during a trial, any ambiguity in the email should have been exposed and explained during cross-examination. However, the appellant is not correct in his view that resolution of this ambiguity in the appellant’s favour would lead to a different result in the case: it is clear that it would not.
[18] The child expressed threats of suicide while with the appellant and his wife in July and August, 2014. One need not look behind August 18, 2014, to see that the father’s repeated efforts to “reach” or pressure the child that day culminated in her writing a note saying that she did not suffer PAS and then reaching for the knife. The judge accepted the appellant’s argument that the child was “bluffing” when she threatened suicide. She found that, even so, the father was then, in August 2014, so fixed on pressuring the child to concede that she had PAS as to put the child at serious risk of physical and emotional harm and therefore in need of protection from him. It was clear that this pressure did not arise for the first time in August, or in July, 2014. The trial judge found that the process went back at least to February 2013, on the basis of the impugned email. If she was in error in her reading of the impugned email – and she may well have been – that would not affect the overall conclusion that the father had been pressuring the child on an ongoing basis, leading to the crises in July and August 2014. The suicide threats were culminating events: whether the process that led to this culmination started in February 2013, or at some later time, is not material to the overall result.
[19] With or without the impugned email from February 2013, the motions judge’s conclusions are well supported on the record before her:
Based on the arrangement between the parties pursuant to the joint custody order, at the time the protection issues arose the father had charge of the child. If there is no finding that the child is in need of protection, the parties would revert to the joint custodial arrangement that was in existence in August 2014 and the father would remain a person in charge of the child, continuing to put the child at risk. I find that the father has done nothing to address the protection issues. He remains obsessed with his view that the mother has alienated the child. He has no insight into the physical danger in which he put the child. He has no insight into the emotional harm he has caused the child by repeatedly trying to get her to acknowledge his belief that she is the subject of PAS. He has no insight into the emotional harm that would result from revoking his consent for her counselling.
Based on the father’s admissions, there was significant conflict between the father and the child that escalated to the point that the child was threatening self-harm. His obsessive focus on his belief as to the genesis of the conflict between them has resulted in his inability to act in a way that would foster a positive and safe relationship with the child. His fixation on proving that the child suffers from PAS has placed the child at risk of physical and emotional harm and caused her emotional harm. The father has been unable to consistently provide for the child’s physical safety and emotional well-being during the time the child is in his charge. He has been unable to control the child and keep her safe. The child cannot be adequately protected in the care of the father due to the conflict between the child and the father
The father alleged that the protection concerns arise from the mother and the PAS she has fostered in the child. I reject that contention. The father has led no evidence from any independent agency, medical practitioner or the child’s counsel to support that the child suffers from “PAS” or that the actions of the mother have caused any protection concerns. The evidence is that the child is doing exceptionally well. Contrary to the father’s submissions, the report from the child’s counsellor and the notes from the child’s doctor do not support that the child suffers from “PAS”. As with much of the evidence, the father’s perceptions are distorted by his belief that the mother is alienating the child. I find that is it reasonable to infer that the actions of the mother have been attempts to protect the child from a toxic situation. I find no concerns with respect to the mother’s care of the child. (Reasons, paras. 34 – 36).
[20] If the trial judge’s interpretation of the impugned email was an error, as it may have been, it was not overriding. The father’s inappropriate treatment of the child clearly pre-dated July 2014, and it mattered not to the final disposition of the case whether this inappropriate treatment could be traced all the way back to February 2013.
Delay
[21] The appeal fails on the merits. However the delay in this appeal also renders it impractical.
[22] The child was 13 years old when Quinlan J. released her decision in December, 2016. More than two years have passed. She is turning 16 in a few short weeks, in April 2019. The appellant father has not communicated with her since August 18, 2014.
[23] Even if we had allowed the appeal, we would not have granted the appellant the remedy he seeks. It would not be practical after so much time – 4.5 years since the events in issue and more than 2 years since summary judgment was granted. By the time a trial was held, the child would be more than 16 years old. Child protection cases must be approached with far more alacrity.
[24] The appellant bears the burden to ready the appeal for hearing. Rule 38 of the Family Law Rules specifically accelerates the timelines in child protection appeals due to the urgency and sensitivity of the subject matter.
[25] The appellant served his factum in May 2017. He did not perfect his appeal until January 2018, more than a year after judgment was rendered. Then the case was not scheduled for hearing until January 2019, another year’s delay. The appellant explained this delay, in part, because of difficulties obtaining transcripts. Transcript difficulties are no excuse for such a long delay in this case. First, this was a motion for summary judgment: almost the entire record was in writing. The only transcript was ten pages long, the OCL’s statement of the wishes and circumstances of the child. The appellant eventually filed this transcript, but made no reference to it in his written or oral arguments. It is not clear why the appellant thought it necessary to order a transcript to which he did not refer: Rule 38(12) of the Family Law Rules seeks to avoid this very thing. Absent this transcript, the appeal should have been perfected within six months under Rule 38(2)5 and should have been heard within 60 days thereafter, i.e. in 2017.
[26] Once the appeal was perfected, it still languished another year before coming on for a hearing. The appeal was to have been heard within 60 days of perfection under s. 38(24) of the Family Law Rules, O. Reg. 114/99. Both the Children’s Lawyer and the respondent LV delivered their materials late, on consent. However, this prevented the appeal from being listed for hearing in September 2018.
[27] The appellant was not solely at fault for the delays here. But it was his responsibility to push the appeal forward, particularly given the practicalities of the situation.
[28] The appellant understandably wishes to remove the “stain” of the summary judgment in which he was found to have acted inappropriately, putting his child at risk of serious harm. But the focus in child protection cases is the safety and well-being of the child: it could not possibly advance this child’s well-being to re-litigate child protection issues that arose 4.5 years ago.
[29] This does not leave the appellant with no way forward. He may avail himself of the written monthly access ordered by Quinlan J. to try to re-establish communication with his daughter. If he and his daughter can build rapport through this communication, perhaps the father-daughter relationship can be rekindled. However, the appellant must understand that the future of his relationship with his daughter now lies primarily with her, and the path to reconciliation does not cross the rocky terrain of his allegations of Parental Alienation Syndrome.
Order and Costs
[30] The appeal is dismissed.
[31] SMCYFS and the OCL do not seek costs. The mother seeks costs of $6,632.49 (substantial indemnity) or $5,349.37 (partial indemnity). If costs cannot be agreed, then the mother may deliver no more than three pages of costs submissions to the Registrar in Oshawa by the close of business on March 22, 2019. The appellant may deliver no more than three pages of responding submissions by no later than April 8, 2019.
D.L. Corbett J.
Myers J.
Sheard J.
Released: February 25, 2019
CITATION: Simcoe Muskoka Child, Youth and Family Services v. L.V., 2019 ONSC 1208
DIVISIONAL COURT FILE NO.: 1010-16
DATE: 20190225
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
SIMCOE MUSKOKA CHILD, YOUTH and FAMILY SERVICES
Applicant / Respondent on Appeal
- and -
DH
Respondent / Appellant on Appeal
- and -
LV and OFFICE OF THE CHILDREN’S LAWYER
Respondents / Respondents on Appeal
REASONS FOR JUDGMENT
Released: February 25, 2019