Court File and Parties

CITATION: N.B. v. Kawartha-Haliburton Children’s Aid Society, 2019 ONSC 5594

DIVISIONAL COURT FILE NO.: DC-18-1112

DATE: 20191011

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, Morgan and Raikes JJ.

B E T W E E N:

N.B.

Appellant

• and -

Kawartha-Haliburton Children’s Aid Society

Respondent

COUNSEL:

Christopher Spear, for the Appellant

Joan Tigert, for the Respondent

Heard at Oshawa: September 23, 2019

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.

ENDORSEMENT

Raikes J. :

[1] This is an appeal by the biological mother from the judgment of Roswell J. dated June 29, 2018, made on a motion for summary judgment, that:

a.) the child, GB, born […], 2017, is in need of protection pursuant to s. 74(2)(b)(i) and (h) of the Child, Youth and Family Services Act, 2017 (Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14) (hereafter “CYFSA”); and

b.) the child be placed in the extended care of the Society without access for the purpose of adoption.

[2] The motion proceeded as a hybrid hearing. The mother’s counsel was permitted to cross-examine the psychologist and social worker who authored the assessment report. All other evidence was filed including various records from police and CAS, and the affidavits filed by and on behalf of the mother. No other viva voce evidence was heard. The hearing took place over three days with one day devoted to the three older children.

[3] The mother, her father and her current companion filed affidavit evidence opposing the Society’s motion for summary judgment. She also prepared a lengthy dispute to the parenting assessment relied upon by the motion judge to find that GB was in need and no access was warranted. That dispute was not part of the mother’s affidavit filed for the motion but was marked as an exhibit to the cross-examination of the experts.

[4] In that dispute and in her affidavit filed, the mother took issue with the facts surrounding her former relationships, what she did or did not do, and her ability/willingness to protect the children from the risk of exposure to violence. Moreover, she deposed to counselling and education in domestic violence since her relationship ended with AV. There was no suggestion that there was violence or concern for violence in her current relationship.

[5] With respect to the finding that the child is in need of protection, the motion judge wrote at para. 33:

[33] It is clear that the test for summary judgment motion was met when the parties established that there is no material fact that requires resolution. NB failed to recognize the harm caused to her children and the risk her male partners have exposed her children to. GB has been disrupted too long due to NB’s inability to put the children’s needs first. That issue does not require a trial. The Society has established a prima facie case that there is no genuine issue requiring a trial on the issue of a finding in need of protection, and on the issue of disposition.

[6] There is no question that there was evidence to support the Society’s position that the mother had been in violent domestic relationships, had persisted in those relationships while with her older three children and thereby put those children at risk. (The child, GB, was apprehended at birth and was not similarly exposed to domestic violence.)

[7] It is undisputed that the mother was a victim of domestic violence. However, she clearly did not agree with the facts stated by the assessors or the conclusions that they reached concerning her parenting capabilities. She points to the CAS visitation notes that are positive concerning her access visits with GB. She does not agree that she and GB have not bonded. She indicated that through counseling and education largely done after the children were apprehended, she learned how to recognize behavior likely to lead to such conduct, how to get away from that situation and how to protect her children.

[8] Thus, there were material facts in issue. She contends that the assessors and motion judge ignored her evidence that some of her relationships, particularly the ones that lasted longer, had no domestic violence and that her older children were found to have attributes of children who have been properly parented. She has actively taken steps before and since 2016 to address her experiences as a victim of abuse.

[9] I do not agree with the motion judge’s finding that there are no material facts requiring a resolution. There are material facts in dispute which, in my view, raise a genuine issue that require a trial. That finding is a palpable and overriding error that informed his analysis of the merits of the summary judgment motion.

[10] Following release of his decision, the Ontario Court of Appeal in Kawartha-Haliburton CAS v. M.W., 2019 ONCA 316 clarified the principles applicable to a motion for summary judgment in a child protection proceeding, particularly as it relates to the test for access to a child in extended society care. It is conceded by counsel for the Society that the language used by the motion judge on the issue of access reflects the prior approach taken by this Court which the Court of Appeal overturned.

[11] The case law is clear that caution must be used in determining that a child is in need and that the child should be placed for adoption.

[12] In Kawartha-Haliburton CAS v. M.W., Benotto J.A. wrote at paras. 76 and 77:

[76] Hyrniak emphasizes that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment: at para. 49. As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits. Interestingly, even the case the Divisional Court referred to as “the correct approach”, The Children’s Aid Society of Ottawa v. I.C. et al., 2016 ONSC 4792, aff’d 2017 ONSC 6935, speaks to this point. At para. 64 of I.C., MacKinnon J. said:

In determining whether there is a genuine issue for requiring a trial in this case, I am mindful of the need for the Court to be cautious in granting a summary judgment motion for Crown wardship in line with the principles of justice, fairness and the best interests of the children are at the heart of these proceedings.

[77] Significantly, MacKinnon J. did not alter the considerations for “genuine issue requiring a trial”. The cautionary approach applies as do the objectives of the CYFSA. Further, the court has an obligation to carefully assess the evidence.

[13] Earlier, at para. 68, Benotto J.A. stressed that courts must be mindful of the reality and material circumstances of those subject to child protection proceedings. Citing Justice L’Heureux-Dube in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, women and single mothers are disproportionately and particularly affected by child protection proceedings.

[14] It is not the case that merely because a parent disputes facts, summary judgment cannot issue – that a trial must ensue. Rule 16(6.1) of the Family Law Rules furnishes the motion judge with the power to weigh evidence, evaluate credibility and draw inferences unless it is in the interest of justice for such powers to be exercised only at trial.

[15] In this case, there are material facts in dispute. A cautionary approach is mandated. Here, the trial judge did not utilize the powers in r. 16(6.1) to assess whether he could resolve those disputes fairly and justly at this stage. Having found that there were no material facts in dispute and without analysis of the mother’s evidence, he made determinations.

[16] With respect to the issue of access to GB, the motion judge stated at para. 58:

[58] There is no indication that the child has a strong relationship with NB. NB has produced no evidence to demonstrate that an access order would be meaningful or beneficial to the child.

[17] At paras. 44 to 54 in Kawartha-Haliburton CAS v. M.W., Benotto J.A. sets out the significant change in approach to the issue of access under the new CYFSA. The approach taken by the motion judge in this case is the same as that taken by the Divisional Court in M.W. which was overturned. In fairness, the motion judge was bound by earlier Divisional Court decisions and could not have known that the Court of Appeal would change the analysis required.

[18] Justice Benotto wrote at para. 49:

[49] The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interest analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that the parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive: …

[19] Section 74(3) sets out a very detailed framework for the assessment of the best interests of the child. The motion judge did not undertake that analysis as contemplated by the section.

[20] For the foregoing reasons, I find that the judgment should be set aside and the matter remitted for trial on an expedited basis as per the hand-written endorsement of the panel on the hearing of the appeal.

[21] I observe that the motion for summary judgment took place far outside the time limits in the legislation for a child of GB’s age. That fact unquestionably influenced the decision to bring this matter to an early resolution. The appeal process has also taken longer than it should. GB will be 3 years old in […]. The pace of this litigation imperils GB’s well-being now and in future. Priority must be given to a trial in this case.

Raikes J.

I agree _______________________________

Morgan J.

I agree _______________________________

D.L. Corbett J.

Release Date: October 11, 2019

DIVISIONAL COURT FILE NO.: DC-18-1112

DATE: 20191011

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, Morgan and Raikes JJ.

BETWEEN:

N.B.

Appellant

– and –

Kawartha-Haliburton Children’s Aid Society

Respondent

ENDORSEMENT

Raikes J.

Released: October 11, 2019