ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-11-11005
DATE: 20120524

BETWEEN:

Windsor-Essex Children’s Aid Society
Appellant

– and –

D.M. and J.M.
Respondents

Tara Gatten, for the Appellant
Respondents not present and unrepresented
Kristen Hales, for the child and on behalf of the Office of the Children’s Lawyer

HEARD: May 1, 2012

On appeal from the order of Justice S.S. Bondy of the Ontario Court of Justice
dated May 16, 2011.

Thomas J.:

I. - introduction

[ 1 ] This is an appeal by Windsor-Essex Children’s Aid Society (“the Society”) supported by Office of the Children’s Lawyer (“OCL”) counsel.

[ 2 ] The appeal is from the order of Bondy J. of the Ontario Court of Justice denying the summary judgment motion of the appellant seeking an order of Crown wardship with no access.

[ 3 ] On May 16, 2011, the motions judge heard the application for summary judgment. The Society sought a finding that the child A.T., born […], 2010, was in need of protection and relied upon s. 37(2)(b)(i) of the Child and Family Services Act (“ CFSA ”). It was alleged that there was a risk that the child was likely to suffer physical harm inflicted by the person having charge of the child or caused by that person’s failure to care for, provide for, supervise or protect the child adequately.

[ 4 ] No parent of the child disputed the application, appeared, or filed a proposed plan of care. In fact D.M., the mother of the child, had with the benefit of counsel, executed a consent to the order being sought. Ms. Hales, OCL counsel for the child, supported the Society motion and, as mentioned, supports this appeal.

[ 5 ] The motions judge was concerned about the nature and quality of the affidavit evidence filed by the appellant to support summary judgment. She dismissed the application.

II. – TRANSCRIPT ON APPEAL

[ 6 ] The appeal book contains a two page transcript of the reasons of the motions judge.

[ 7 ] I inquired of counsel as to whether a further fuller transcript of the proceedings before Bondy J. might prove helpful. I was advised that, although requested, the motions judge had refused to release a transcript regarding the balance of the proceedings on May 16, 2011. Having now had the benefit of argument and with the appeal book materials including copies of the original affidavits of Brandy Holmes, an employee of the Society, I am content that I am able to dispose of this appeal without further filings.

[ 8 ] I am anxious to move this matter forward considering the age and circumstances of the child.

III. – FRESH EVIDENCE

[ 9 ] At the outset of this argument I granted leave to OCL counsel to file fresh evidence. That evidence amounts to the affidavit of Tammy Smith describing the present circumstances of A.T. and impacts upon any concerns regarding the proposed plan of care of the appellant Society and the “adoptability” of the child. The motions judge did not have this material.

[ 10 ] In accepting the fresh evidence I rely upon s. 69(6) of the CFSA and the decision of the Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.) , 1994 83 (SCC) , [1994] 2 S.C.R. 165 at 166-167:

Although it might be more in line with usual procedures for a court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires a sufficiently flexible rule where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance.

[ 11 ] The fresh evidence affidavit discloses that A.T. is healthy with no special medical or health needs. He has consistently met his developmental milestones. He was placed in a Society resource home on February 23, 2012, with a family that wishes to adopt him. The Society has approved the adoptive home and A.T. appears happy and secure in that environment.

IV. - BACKGROUND

[ 12 ] The affidavit evidence supports the following context.

[ 13 ] D.M. is the mother of the child A.T. and resides in Windsor, Ontario. The father of the child is J.M. The couple were not married, however the pregnancy was planned and unfortunately he left the relationship immediately upon finding out that D.M. was pregnant. D.M. has had no contact with J.M. since that time. It is suggested that J.M. is heavily involved in drug use.

[ 14 ] D.M. has a history of depression, mental and emotional illness, and of chronic drug use.

[ 15 ] D.M. has had intermittent involvement with the Society since the birth of her first child in 2001. D.M. has three other children, none of whom are in her care. All three children are in the custody of extended family members.

[ 16 ] The Society had contact with D.M. prior to the birth of the child and there were discussions at that time about placing this child for adoption. A.T. was born on […], 2010. Following his birth the child remained in hospital for several weeks due to health issues. His mother D.M. failed to attend hospital to see the child after […], 2010, and has not had access to the child since.

[ 17 ] The Society has made numerous attempts to contact D.M. and was recommending that she undertake several programs to assist her in any potential care of this child including a parenting program, a psychiatric assessment and drug testing. D.M. did not participate in any of the above suggested services or assessments. Throughout the next few months after the birth of the child the Society attempted by telephone and letters to contact the mother D.M. The Society did not receive any response to those attempts.

[ 18 ] On April 1, 2011, D.M. attended before duty counsel and executed a consent as to a finding of protection in relation to A.T. and a consent to an order that he be made a ward of the Crown with no access.

V. – THE DECISION OF THE MOTIONS JUDGE

[ 19 ] The concern of the motions judge centred on the hearsay nature of the evidence presented in support of the protection findings. She, as well, found a lack of satisfactory evidence related to her necessary consideration of ss. 56(e), 57(2), and 57(4) of the CFSA . I will review those concerns and the position of the appellant below.

[ 20 ] The following are the reasons provided:

This is what I have said. After two attempts to provide satisfactory affidavit material to support the summary judgment motion for Crown wardship without access, I am not confident this matter can proceed on affidavit evidence. There is no rule of law, at common law or statutory, that allows the wholesale reception of hearsay material on a Crown wardship application. Moreover, the Plan of Care file does not address s. 56(e) of the Act. Sections 57(2) and (4) of the Act must be specifically addressed to support this most serious of orders, Crown wardship. Adjourned for a half day hearing. Trial coordination to set a date.

I am not going to spend any more time educating people on what hearsay is, and is not. This is not satisfactory evidence. I will allow some leeway. As I say, when it’s a doctor’s report, when it’s a service provider’s report, even then there is no reason on Crown wardship that you’re not getting the evidence directly from the witness. Whether it is a trial or whether it is a summary judgment motion, if you want the order to withstand the test of being set aside, Courts act on evidence. Hearsay is inherently unreliable evidence because the idea is that the person doesn’t have an opportunity to fairly cross-examine the individual. The person in this case isn’t the mother or father. The person in this case is me.

This affidavit, as I say, doesn’t even address where the information comes from and what is reliable and trustworthy about it that I would even be able to allow for its admission.

You have to start from the premise that you get the evidence directly and then you need to address the sections of the legislation, so I suggest that you – Mr. Brown will set a date and we will have to deal with it that way. That is unfortunate because this is a matter that we should be able to resolve by way of an affidavit.

VI. – ANALYSIS

1. The Appropriateness of Summary Judgment

[ 21 ] In appropriate circumstances summary judgment is available in child protection cases. Rule 16(1),(2),(4),(5), and (6) of the Family Law Rules state the following:

16.(1) When Available – After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(2) Available In Any Case Except Divorce – A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

(4) Evidence Required – The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(5) Evidence Not From Personal Knowledge – If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) No Issue For Trial – If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[ 22 ] The following two cases provide the practical considerations on summary judgment motions in child welfare proceedings as well as the level of scrutiny to be applied by the presiding judge.

[ 23 ] In the Catholic Children’s Aid Society of Toronto v. F.B. and S.G. , 2001 28231 (ON SC) , [2001] O.J. No. 1586 (S.C.J.), at paragraphs 27 and 28 , Himel J. commented upon the narrow scope of the judge’s role:

In ruling on a motion for summary judgment, the court is not to assess credibility, weigh evidence, or find the facts. The court’s role on such a motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial: Aguonie v. Galion Solid Waste Material Inc., supra. The court, however, has the duty to take a hard look at the merits of an action at this preliminary stage: Vaughan v. Warner Communications (1986), 1986 2533 (ON SC) , 56 O.R. (2d) 242 (H.C.J.).

In family law cases of Crown wardship, the same principles apply as those articulated in Irving Ungerman Ltd. v. Galanis, Aguonie v. Galion Solid Waste Material Inc., and Vaughan v. Warner Communications. The court must review all the evidence to determine if there is a basis for the final order sought. A proper consideration of “a full evidentiary record” is necessary for a “good hard look” at the evidence on the motion. Then the court must determine whether there are specific facts to support a triable issue. The court may then dismiss the motion, rule that there are only certain issues that require a full hearing or determine that there are no triable issues regarding the entire application: see Children’s Aid Society of the Regional Municipality of Waterloo v. R.S., supra, at paras. 22 and 23. Rule 16 of the Family Law Rules provides that on a motion for summary judgment, the evidence which may be considered by the court is “affidavit or other evidence that sets out specific facts showing that there is no genuine issue for trial.”

[ 24 ] Lane J. in R.A. v. Jewish Family and Child Services , [2001] O.J. No. 47 , spoke of the special duty in child protection cases:

In my view, as Hardman J. suggested, the enactment of Rule 16 has made summary judgment more widely available than before. It is no longer necessary that every case be the clearest of cases. The rule does not so provide and, given the procedures in place to make such rules, the omission cannot be unintentional. The test is whether there is an issue of fact requiring a trial for its resolution. By analogy, the case law under Rule 20 is persuasive and useful, but regard must be had to the special duty of a child protection court to place the best interests of the child foremost. The court cannot be unaware of the fact, as Chapnik J. pointed out, that the making of an order that a child become a Crown ward without access is a very serious step having profound effects on child and parents alike. The court must ensure that the best interests of the child are adequately addressed on the available evidence. Caution is thus called for. Nevertheless, if the evidence does not raise a triable issue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the child’s future.

[ 25 ] Ultimately the motions judge must decide if there is “a genuine issue requiring a trial” and if a full appreciation of the matters in issue can be acquired from the materials filed or whether that understanding can only come from a trial. ( Catholic Children’s Aid Society of Hamilton v. M.A. , 2012 ONSC 267 () , [2012] O.J. No. 223 (S.C.J.) at para. 34 ).

[ 26 ] For a motion for summary judgment to be successful, the presiding judge must be content that the matters in issue, including any statutory requirements, can be satisfied on material presented. However, the level of requisite detail will vary depending on context. That context includes a consideration of whether there is an active dispute and indeed whether there may be consent.

[ 27 ] If the circumstances permit, summary judgment in protection proceedings is an invaluable tool allowing for timely final orders in instances where no triable issue exists.

2. Hearsay

[ 28 ] Upon the hearing of the motion the appellant Society argued for a finding of protection pursuant to s. 57(2)(b)(i) of the CFSA . As previously mentioned, the motion’s judge was concerned about the hearsay portions of the supporting material particularly where the information may not have been attributed to a specific source.

[ 29 ] Rule 16(5) allows for the use of hearsay evidence and offers the following caution:

Evidence Not From Personal Knowledge – If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

[ 30 ] Again the concerns about the effect of adverse inferences or undefined sources must be viewed in the context of the proceeding and the importance of the information.

[ 31 ] The following are some of the paragraphs of the affidavits of Brandy Holmes presented by the appellant Society in support of the proposed protection finding:

D.M. has had involvement with the Society on an intermittent basis since the birth of her first child in 2001. Ms. M. has three other children, none of which are in her care. All three children are in the custody of extended family members.

On April 22, 2010, Society Intake Worker, Shelley Gignac met with D.M. I have reviewed the notes of Shelly [Shelley] and based on my review, I verily believe it to be true that Ms. M. reported that:

i. the pregnancy was planned and J.M. is the father, however he left her when she found out she was pregnant;

ii. she currently was having no contact with Mr. M. and that he is not likely going to be involved;

iii. Mr. M. is heavily involved in drug use and dating a teenage girl and that she heard he was living with her ex-husband, F.M.;

iv. she suffers from depression and recently had been cutting herself, however she was not currently receiving treatment or taking medication;

v. she is struggling with her mental/emotional health at this time and feels she would benefit from treatment;

vi. she had been hospitalized historically for psychiatric concerns, stating the last time was a few years ago for anorexia;

vii. she admitted to chronic and daily marijuana use prior to her separation from J.M., whom she indicated is a “dealer.”;

viii. her usage had been much less recently, however she does still occasionally drink a beer or smoke a joint “to stop thinking about stuff.” She stated she was using marijuana every 2-3 days;

ix. her parents are supportive, but mostly only financially;

x. she was currently enrolled at St. Clair College in Pre-Health Science and living in residence, all of which was being funded by her parents, including her food;

xi. she wanted to get her education, however she felt isolated on campus and had dropped many of her courses;

xii. her relationship with her father is very strained at this time, which she felt is due to her pregnancy;

xiii. she had no supplies for the baby;

xiv. she expressed a desire to raise the baby however stated she did not see how this would be possible, given her current circumstances;

xv. she expressed being totally financially dependent on her parents and that she could not apply for welfare until she was finished school.

The Respondent mother, D.M.’s current partner P.L. has an extensive history with the Society. P.L. is a former crown ward of the Society, and remained involved as a youth until he was discharged at the age of 18. As a child he was a repeat sexual offender, having sexually abused multiple minors including his sister. P. came into Society care as his mother was unable to manage his behaviours and he required specialized treatment. P. was admitted into the Wallenburg Treatment Centre in London, Ontario for residential treatment. P. remained in Wallenburg for 3 years, in which he was discharged on his own “volition.” The discharge report advised that “the management and staff team at Wallenburg do not feel that P. has met the required program guidelines for graduation.” A report from Paediatric Psychiatrist Dr. Ralyea in March 2001 states that P. has made some gains in programming, however “I still would not be willing to allow him to go out into the community unsupervised”. P. returned to a Society group home after discharge, and began treatment at Windsor Regional Children’s Centre as an outpatient. Society records do not indicate any further updates following P.’s discharge from the Society’s care at age 18.

Following the subject child’s birth, he remained in hospital for a couple of weeks due to health issues. D.M. failed to attend the hospital to see the child subsequent to […], 2010. She has not had access with the child since that time.

D. has not maintained regular contact with me or the Society since the birth of the child and throughout the course of this litigation. At some point in the summer of 2010 D. and P. Moved without notifying the Society of new contact information and I was not able to make contact until September 2010 when I was able to obtain their new address from Social Services.

I have made a number of attempt(sic) to contact and engage D.M. with services since July 2010, including meeting with D.M. on June 29, 2010, June 30, 2010, September 9, 2010, November 1, 2010 and January 17, 2011. During those meetings, I advised D.M. that the Society was recommending that she participate in the following services and provided information with respect to parenting programs as well as offered assistance to connect with a psychiatrist and a drug treatment facility:

a. attend a Society approved parenting program to expand her knowledge of age appropriate parenting practices and shall follow the recommendations made by such service provider;

b. cooperate with a psychiatric assessment, and shall attend for appointments with her psychiatrist at a frequency recommended by the physician, and shall also follow all treatment recommendations made by the physician. This is inclusive of but not limited to D. taking her medication as prescribed by her physician;

c. D.M. shall abstain from the use of illicit drugs, and submit to hair follicle testing to a maximum of two(2) over the duration of the order as requested by the Society.

To date, D.M. has not participated in any of the above noted services.

In addition to the occasions wherein I was able to meet with D.M., I attempted to contact her by telephone on eight separate occasions and left a message each time. D.M. did not return my telephone calls. I sent letters to D.M. on July 12, 2010, July 21, 2010 and September 1, 2010 requesting that she contact me and did not receive a response to any of those letters.

D.M. has not demonstrated an interest in working with me, nor in participating in the services I have recommended for her. She has indicated to me that she is not seeking to have the child returned to her care and has not attended for access with the child since June 2010.

[ 32 ] The vast majority of the information in this section of the materials came from either the intake worker, Shelley Gignac, or the affiant Brandy Holmes. I have no concern that the hearsay nature of any of this material should have impeded a protection finding in these circumstances.

3. Section 56(3) CFSA Plan of Care

[ 33 ] The judge at the hearing also expressed a concern about absence of detail regarding the appellant’s proposed plan of care as it related to the child’s long-term stable placement.

[ 34 ] The material filed reveals the following information:

1. That the affiant worker was in Court on January 17, 2011 at which time the mother D.M. advised the Court that she was not opposed to an order for Crown wardship and knew the Society’s plan was for the child to be adopted.

2. That D.M. executed a consent to the order sought with the benefit of counsel, and

3. That Part 3 of the Plan of Care in Form 33B presented to the motions judge revealed that the Society plan was for a permanent removal of the child with efforts to develop a positive, secure and enduring relationship with a family through adoption.

[ 35 ] While absent detail it was clear that the appellant Society was committed to placing this young child for adoption. Again I would suggest that the limitations of the evidence provided on this point must be viewed in context. Adoption was an appropriate and viable plan with the mother’s consent and a lack of alternatives.

4. Section 57(2) CFSA – Efforts Made to Assist

[ 36 ] The motions judge found that the material filed failed to address this specific statutory concern, that is, what efforts had the Society made to assist the child before intervention.

[ 37 ] Paragraphs of the affidavit of Brandy Holmes, previously set out in these reasons, advise of attempts to assist D.M. with parenting programs, drug treatment facilities and contact with a psychiatrist to assist in mental health concerns. D.M. failed to participate in all Society attempts.

5. Section 57(4) – Potential of Family Placement

[ 38 ] The motions judge was concerned about the lack of evidence of the Society’s efforts to place this child with an appropriate family member, relative or member of the child’s community as is required by s. 57(4) of the CFSA .

[ 39 ] The affidavit material on that point states the following:

On May 6, 2010, I met with D.M. at her St Clair College residence room. Ms. M. advised me that she had been diagnosed with ADD, ADHD, OCD, depression, and Bi-polar disorder and that she was not currently taking medication. Ms. M. also advised that there were no other family placements available for her baby.

There are no viable alternative placements available from among the child’s relatives or from within the child’s community that would be in the child’s best interests at this time.

[ 40 ] In addition, no family member presented an alternative plan of care to the Society.

[ 41 ] It was unnecessary in these circumstances for the Society to undertake a broader search.

6. Standard of Review

[ 42 ] Whether the motions judge applied the proper test on a summary judgment motion is a question of law. The standard of review on a question of law is correctness.

[ 43 ] In Equity Waste Management of Canada v. Halton Hills (Town) , 1997 2742 (ON CA) , [1997] O.J. No. 3921 (C.A.), at para. 46 , Laskin J.A., writing for the court, stated that the standard of deference to be given to the judge in the court below when no oral evidence has been heard and there is a finding of fact is whether the judge “disregarded, misapprehended, or failed to appreciate relevant evidence, made a finding not reasonably supported by the evidence, or drew an unreasonable inference from the evidence.”

[ 44 ] A court to which an appeal is taken may make any order or decision that ought to have been made by the court appealed from. ( Courts of Justice Act , R.S.O. 1990 c. C.43, s. 134(1).)

[ 45 ] In the matter of an appeal in a child protection proceeding, a substitute order rather than a direction for a new trial should issue whenever reversible error is found. ( R.L. et al. and Children’s Aid Society of Metropolitan Toronto , 1995 5589 (ON SC) , [1995] O.J. No. 119 (Ont.Gen.Div.) per Walsh J. at p. 9.)

[ 46 ] In the circumstances of this motion for summary judgment, where there was no opposition, and the written consent of the mother and the OCL counsel, the relief should have been granted by the motions judge. I say that recognizing that obviously the fresh evidence was not available to her.

[ 47 ] I sense from the reasons of the Court below that the quality of the Society’s materials had been an ongoing concern for the presiding judge and had been the topic of previous discussions with counsel. Unfortunately, that may have clouded the judge’s view of the evidence in this case before her. There was ample evidence here to satisfy any concerns and to fail to grant this motion for the reasons given amounted to an error in law. The motions judge failed to appreciate the significance of the available evidence and as a result deference is not appropriate.

[ 48 ] I am able in this case to substitute the result I believe appropriate on the materials before me. I am anxious to do so in order to expedite the proposed adoption and provide some certainty to the future of A.T.

VII. - CONCLUSION

[ 49 ] I have found the motions judge in error and as a result allow this appeal.

[ 50 ] For the reasons set out above, and on the material before me, I make the following necessary findings required by s. 47(2) of the CFSA :

a) the name of the child is A.T.;
b) the date of birth of the child is […], 2010;
c) the child is of the Roman Catholic faith;
d) the child has no Indian or native status.

[ 51 ] In addition I find the child is in need of protection pursuant to s. 37(2)(b)(i) of the CFSA .

[ 52 ] Pursuant to the terms of s. 57 of the CFSA , with regard to disposition, I find it is in the child’s best interests that he be made a ward of the Crown without access.

Original signed “Justice Thomas”

Bruce G. Thomas
Justice

Released: May 24, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Windsor-Essex Children’s Aid Society Appellant – and – D.M. and J.M. Respondents REASONS FOR JUDGMENT Thomas J.

Released: May 24, 2012

WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)( c ) or subsection 45(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.