S.D.2 v. Children’s Aid Society of London and Middlesex, 2019 ONSC 2184

CITATION: S.D.2 v. Children’s Aid Society of London and Middlesex, 2019 ONSC 2184

DIVISIONAL COURT FILE NO.: 9/17

DATE: 20190405

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Wilton-Siegel, Fregeau and Ryan Bell JJ.

BETWEEN:

S.D.2 Appellant

– and –

The Children’s Aid Society of London and Middlesex

– and –

S.D.1 and N.C. Respondents

COUNSEL:

Tamra A. Mann, for the Appellant

Joseph F. Belecky, for the Respondent Children’s Aid Society of London and Middlesex

Leonard Reich, for the Respondent S.D.1

HEARD at London: April 2, 2019

REASONS FOR DECISION

Ryan Bell J.

[1] This matter proceeded as a motion for summary judgment before Henderson J. On March 10, 2017, the day the motion was heard, the parties agreed to the issuance of an order pursuant to s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11, placing the child E.L.D.-C. in the joint custody of her parents, S.D.1 and N.C., with primary care to the father, N.C. However, S.D.2 did not consent to the motion judge’s finding that E.L.D.-C. was in need of protection. S.D.2 appeals the March 10, 2017 finding.

[2] On April 6, 2017, the motion judge dismissed S.D.2’s motion for an assessment under s. 54 of the CFSA and ordered that S.D.2 shall have no access with E.L.D.-C. S.D.2 appeals from the order denying her access with the child. It is agreed that no appeal lies from the order dismissing the motion for a s. 54 assessment.

Background

[3] S.D.1 and N.C. are, respectively, the mother and the father of E.L.D.-C. S.D.2 is S.D.1’s cousin. S.D.1 was placed in the care of S.D.2 when she was young due to concerns in her birth home.

[4] E.L.D.-C. was born with gastroschisis, a condition in which her intestines and stomach developed outside her body. She spent the first five months of her life in the hospital and has experienced extensive hospitalizations and medical interventions.

[5] S.D.1 and N.C. were, respectively, 16 and 18 at the time of E.L.D.-C.’s birth. Shortly after E.L.D.-C. was born, and with the consent of both parents, E.L.D.-C. was placed in S.D.2’s care. S.D.2 assumed de facto custody of E.L.D.-C. in order to provide her with the care that S.D.1 and N.C., at the time, were unable to provide.

[6] Over time, medical and social work professionals overseeing E.L.D.-C.’s care became increasingly concerned that her condition was not as reported by S.D.2 and that there were discrepancies between the symptoms as reported by S.D.2 and the child’s actual physical state. These professionals were also concerned that the child was not developing as she should.

[7] These concerns were reported by the child’s medical team to the Children’s Aid Society of London and Middlesex and prompted the Society to commence a protection application on March 1, 2016. On March 3, 2016, McSorley J. made an interim interim order that the child remain in the temporary care and custody of the Society, subject to reasonable access by all parties, with the questions of supervision and, if so, the level of supervision, to be in the discretion of the Society.

[8] On July 25, 2016, a motion for temporary care and custody was heard. Mitrow J. ordered the child be placed in the temporary care and custody of N.C. and the paternal grandmother, subject to terms and the supervision of the Society. S.D.1 was granted access as requested. S.D.2 was granted supervised access to the child.

[9] Following E.L.D.-C.’s apprehension, her health care professionals reported that she gained weight, many of her health issues dissipated, and she began to meet her developmental milestones.

[10] Ultimately, each of S.D.1 and N.C. moved for summary judgment on the issue of whether E.L.D.-C. was a child in need of protection, and sought joint custody. S.D.2 opposed their motions and brought her own motion for a parenting assessment pursuant to s. 54 of the CFSA and for a “comprehensive list of programs and expectations” required in order for her access with the child to be unsupervised. At the hearing on March 10, 2017, the parties consented to an order pursuant to s. 57.1 of the CFSA placing the child in the joint custody of her parents, with primary care to N.C. and specified access to S.D.1.

The March 10, 2017 Endorsement

[11] In his March 10, 2017 endorsement, the motion judge found E.L.D.-C. to be a child in need of protection pursuant to s. 37(b)(i) and (ii) of the CFSA. He found:

…there is overwhelming evidence that the child is in need of protection. There is abundant independent evidence from the child’s medical team that the maternal grandmother [S.D.2] was providing inadequate medical care to the child causing her significant distress in the context of her serious medical issues.

[12] The motion judge observed that the considerable improvements in the child’s health since being placed in care and subsequently, in the care of her father confirmed the concerns of the child’s doctors and the Society.

The April 6, 2017 Endorsement

[13] In his April 6, 2017 endorsement, the motion judge:

• reiterated his earlier conclusion that “the medical evidence is overwhelming that the child was subject to abuse”;
• observed that since the child’s apprehension in early March 2016, she continued to improve and hit her developmental milestones to the point where her feeding tube was removed in early March 2017;
• found, based on the medical evidence, that “there is a clear causal connection between S.D.2’s care and the child’s declining health”;
• found that S.D.2 subjected E.L.D.-C. to abuse;
• observed that since E.L.D.-C. was apprehended, both S.D.1 and N.C. had matured, the child had continued to thrive under N.C.’s care with the support of N.C.’s mother, the mother had taken courses and sought counselling, and S.D.1 and N.C. had improved their ability to communicate;
• found that S.D.1 and S.D.2 are estranged and that S.D.1 feels insecure in S.D.2’s presence;
• referred to the Society’s long involvement with S.D.2 and her family, and S.D.1’s unchallenged evidence that until she reached 15 she had changed schools 11 times, and concluded that this evidence was consistent with some of the Society’s historical concerns;
• found that any continued involvement by S.D.2 would inhibit the mother’s development and would not, therefore, be in the child’s best interests;
• found that at best, S.D.2’s access time would have to be so severely curtailed “to a point where it should not be accommodated”;
• could conceive of no scenario in which supervised access would be recommended;
• found that there was no genuine issue for trial on the question of S.D.2’s access; and
• found it to be in the child’s best interests that S.D.2 have no access with E.L.D.-C.

[14] At the outset of the appeal, on the consent of S.D.1 and unopposed by S.D.2, the Society filed an affidavit of the child protection worker to provide the court with updated information concerning E.L.D.-C. It is reported that E.L.D.-C. exhibits good general health with no medical concerns. The Society has no current child protection concerns.

Analysis

[15] The central issue on appeal is whether the motion judge erred in proceeding by way of summary judgment in (i) finding the child to be in need of protection and (ii) denying S.D.2 access. S.D.2 submits that the motion judge failed to properly apply the law pursuant to Rule 16 of the Family Law Rules, particularly in the context of what S.D.2 describes as this “medically-driven” child protection application, and erred in admitting in evidence and relying upon the evidence of E.L.D.-C.’s treating physicians and health care professionals. S.D.2 also submits that the motion judge erred in failing to appreciate the importance of S.D.2 having had charge of E.L.D.-C. at the time the protection application was commenced and in failing to consider the impact on E.L.D.-C. of severing the relationship between the child and S.D.2.

[16] The parties agree that the standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235: for questions of law, the standard of review is correctness, for questions of fact, palpable and overriding error, and for questions of mixed law and fact, the standard varies. Where a legal principle can be extracted from the question of mixed law and fact, the standard for that question is correctness. Where the issue is the application of the correct legal principles to the facts, the standard is palpable and overriding error.

The Child in Need of Protection Finding

[17] The motion judge found E.L.D.-C. to be a child in need of protection. This is a question of mixed fact and law, involving the application of the correct legal principles to the facts. Accordingly, the standard of palpable and overriding error applies.

[18] Contrary to the submissions of S.D.2, the motion judge did not misapprehend the nature of the medical evidence in the record. That evidence was comprised of the medical records of the child’s medical team. As the motion judge correctly observed, “the specialists that comprise the team are those of the child and, hence, independent of all parties. Their only interest is the health of their patient.” The motion judge also noted that since E.L.D.-C.’s birth, the child’s medical team has had a close association with the child’s principal caretakers, her parents and S.D.2. The child’s medical team took no position in the legal proceedings.

[19] Contrary to the suggestion made on behalf of S.D.2, neither the child’s medical team nor the motion judge made any finding regarding munchausen by proxy and S.D.2. The child’s medical team provided descriptions of the child’s health, both before and after her apprehension, and made recommendations based on their observations of the child and their interactions with the parties. Their evidence was with respect to the health of the child. The motion judge was entitled to conclude that “[t]heir recommendations are made only with the long-term health of the child in mind.” It was reasonable for the motion judge to conclude, based on the overwhelming medical evidence in the record that S.D.2 was not capable of providing the extensive and complex care the child required.

[20] As the motion judge committed no error in admitting and relying upon the medical evidence in the record, he was entitled to proceed and determine the issues before him on a summary judgment basis. The motion judge properly instructed himself as to Rule 16 of the Family Law Rules and the principles to be applied in the consideration of a summary judgment motion generally and in the child protection context. Relying on the decision of Vogelsang J. in McEown v. Parks, 2016 ONSC 6761, the motion judge observed that when applying the principles laid out in Rule 16, Rule 2 remains of considerable importance. Rule 2(2) provides: “The primary objective of these rules is to enable the court to deal with cases justly.” Dealing with a case justly includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in a way that is appropriate to its importance and complexity, and giving appropriate court resources to the case while, at the same time, taking account of the need to give resources to other cases (Rule 2(3)).

[21] The motion judge also recognized the role played by the CFSA in the context of a motion for summary judgment in a child protection matter. S.D.2 submits that the motion judge erred by incorrectly interpreting and applying the timelines set out in s. 70 of the CFSA. I find no such error. I agree with S.D.1 that the reference to s. 70 was part of the motion judge’s consideration of dealing with the case in a just manner as required by Rule 2. In determining that there was no genuine issue requiring a trial, the motion judge relied on Pazaratz J.’s observations in Children’s Aid Society of the Niagara Region v. S.C., 2008 52309 (Ont. S.C.J.), at para. 41: “In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protection procedure under the Child and Family Services Act, and also the best interests of the child.”

[22] I find no palpable and overriding error in the motion judge’s consideration of the medical evidence or in finding E.L.D.-C. to be a child in need of protection. The motion judge applied the correct legal principles on a summary judgment motion in a child protection context.

The Decision Regarding Access

[23] The motion judge found it to be in E.L.D.-C.’s best interests that S.D.2 have no access. This is also a question of mixed fact and law and the standard of review is palpable and overriding error. The motion judge considered the following:

• the overwhelming medical evidence that the child was “subject to abuse”;
• his finding that there was a clear, causal connection between S.D.2’s care and E.L.D.-C.’s declining health;
• the increased maturity of both S.D.1 and N.C. subsequent to E.L.D.-C.’s apprehension and the improvement in their ability to communicate with one another regarding E.L.D.-C.;
• the estrangement of S.D.1 and S.D.2;
• S.D.1’s insecurity in S.D.2’s presence and the “long history” of the Society’s involvement with S.D.2 and her family;
• his finding that S.D.2’s continued involvement would inhibit the mother’s development; and
• S.D.2’s current access schedule given the child’s changing needs as she approached school age.

[24] I find no palpable and overriding error by the motion judge in his consideration of these factors and the evidence before him. The motion judge correctly considered what would be in the child’s best interests and found it to be in the child’s best interests that S.D.2 have no access.

Disposition

[25] In summary, I find no palpable and overriding error in the motion judge’s consideration of the medical evidence, his finding that the child was in need of protection, or in ordering, in the child’s best interests, no access to S.D.2. For these reasons, the appeal is dismissed.

[26] The court was advised that no party seeks costs of the appeal. Accordingly, there will be no order as to costs.

“Justice R. Ryan Bell

Ryan Bell J.

I agree “Justice H. Wilton-Siegel

Wilton-SiegEl J.

I agree “Justice J. Fregeau”

FREGEAU J.

Released: April 5, 2019