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 one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.-(7) Order excluding media representatives or prohibiting publication –

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

Where the court is of the opinion that … publication of the report, …, 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.

(8) Prohibition: 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 or a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Idem: order re adult. – 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.

85. – (3) Idem – a person who contravenes subsection 45(8) or 76(11) (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.

COURT FILE NO.: FS-12-00017797-0000

DATE: 20120703

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s Aid Society of Toronto, Applicant (Respondent in appeal)

A N D:

T.H. (Mother), and R.A.R. (Father), Respondent (Appellant in appeal)

BEFORE: MESBUR J.

COUNSEL: Patrick DiMonte, for the Appellant father

Martha Chamberlain, for the Respondent Society

No one appearing for the mother

HEARD: June 18, 2012

E N D O R S E M E N T

The appeal:

[ 1 ] On December 2011 Justice Scully of the Ontario Court of Justice granted the Children’s Aid Society of Toronto’s summary judgment motion, and made the child AJHR, born […], 2007, a Crown Ward with no access so he could be adopted. AJHR has been in foster care since August 9, 2010. His foster parents wish to adopt him. The father appeals from the decision granting the Society summary judgment.

AJHR’s history with the Society:

The first apprehension

[ 2 ] AJHR was born on […], 2007. He was apprehended at birth. At that time his parents acknowledged that they were unable to care for him because of their untreated cocaine addictions. On December 21, 2007 AJHR was found in need of protection and was made a Society ward for a period of six months, with supervised access to his parents. The parents were to abstain from drug use, attend for regular urine screens and counselling and maintain a regular access schedule. [1]

[ 3 ] Although the parents initially did reasonably well, after mother relapsed and father tested positive for cocaine, the Society changed its position about AJHR’s future. The Society sought an order of Crown wardship with no access when the matter eventually came on for a status review before Jones J in early 2009. The parents sought AJHR’s immediate return to them, and were prepared to consent to a supervision order. After an eight–day trial, Jones J determined that since the case was a status review application, she could only make one of the dispositions listed under section 65 of the Child and Family Services Act, (CFSA). She decided that a further order was necessary to protect AJHR in the future, and therefore concluded that she could only make a further order under section 57. [2]

[ 4 ] Since AJHR was under six at the time, and had been in care for a period well in excess of twelve months, Jones J did not have the option of ordering a further period of society wardship. She could either return the child to the parents either with or without a supervision order, with or without terms, or make an order for Crown wardship. [3]

[ 5 ] After a careful review of all the circumstances, Jones J decided that the most appropriate order to make was to place AJHR in the care of his father, subject to a 12 month supervision order. She ordered that AJHR was to be released into his father’s care under the Society’s supervision. This occurred in late June of 2009. Terms of supervision required father to abstain from cocaine use, not to leave AJHR alone with the mother, submit to regular urine screens, enrol AJHR in day care if advised to do so by the Society, and grow his hair over the term of the supervision order and submit to hair strand testing as and when required on one or more occasions.

[ 6 ] Both parents were subject to additional supervision terms. These included advising the Society of any change in residence, cooperating with a child management worker if one were sent into their home, cooperating with drug counseling as arranged or agreed, and signing such releases of information as required by the society directed to his or her treatment provides or to services providers to the child in order to ensure compliance with the terms of the supervision order.

[ 7 ] In coming to her conclusion to return AJHR to his father’s care, Jones J was satisfied that “his parents have established a stable lifestyle and have come such a long way down the road to recovery ... For clarity, provided the parents continue to manage their drug addictions, I find the parents have the ability to meet [AJHR’s] needs and to raise him to maturity in a stable, nurturing and loving home.” [4]

[ 8 ] The parents’ drug use was clearly a significant concern for Jones J in terms of AJHR’s best interests. Her finding that the parents were able to meet AJHR’s needs was subject to their ability to continue to manage their drug addictions. From this finding I infer that if the parents were not able to manage their drug addictions, they would not have the ability to meet AJHR’s needs, and therefore it would no longer be in AJHR’s best interests to remain with them. No one appealed Jones J’s decision.

AJHR is apprehended again

[ 9 ] AJHR remained in his father’s care until a hair follicle analysis revealed father’s very high, frequent, intensive use of cocaine. Although father denied drug use, he provided no evidence to suggest the analysis was incorrect. On August 9, 2010 the Society apprehended AJHR who was placed in foster care. He has remained in foster care since then. His parents have had the right to have supervised access to him.

[ 10 ] AJHR’s mother initially participated in access, but stopped sometime along the way. She has not seen him, and did not participate in any further proceedings. Father came to the access visits, but often was late, cancelled, or did not attend at all. From August 2010 to December 2010, father missed 15 of his 39 scheduled visits. In January 2011 he missed 6 of 7 visits, and in each of February and March of 2011 he missed 3 visits.

[ 11 ] Although the initial order of Jones J had required father to attend for regular urine screens, he did not. From August of 2010 until the hearing before the motions judge in August 2011, father failed to provide any urine screens or hair strand analysis.

[ 12 ] When AJHR was apprehended, father asked that his sister be assessed for a kin placement. The sister withdrew her plan. Then father asked the Society to assess Ms. N.S. as a kin caregiver. He said they were in a relationship. Since Ms. N.S. had an active file with the Durham Children’s Aid Society, the Society declined to assess her.

[ 13 ] On March 21, 2011 the Society initiated a status review, returnable March 23, 2011. In it, the society sought an order that AJHR be made a Crown ward with no access so that he could be adopted.

[ 14 ] On the first return of the status review, the mother did not attend and had filed neither a Plan of Care nor an Answer. As a result, she was noted in default. She has not participated in any of these proceedings since then.

[ 15 ] Father had not yet filed an Answer or Plan of Care. He sought, and was granted, an extension until May 9, 2011 to do so. At Assignment Court on May 9, 2011 the case was scheduled for a summary judgment hearing on June 27, 2011. Father had still filed no material. He asked for a further extension of time to do so and also asked that the summary judgment motion be adjourned. The presiding judge adjourned father’s motion to June 27.

[ 16 ] Finally, on June 23, 2011 father filed his Answer and Plan of Care, together with an affidavit with attached urine screens. On the return of the motion on June 27 the court gave father an additional 10 days to file any material he wished to rely on in response to the Society’ summary judgment motion. The summary judgment motion itself was adjourned to August 10, 2011.

[ 17 ] August 10, 2011 was the date the summary judgment motion was argued. At the start of the motion, the motions judge allowed father to file a Supplementary Summary Judgment Motion Brief. After hearing submissions from counsel for both the Society and the father, the motions judge reserved his decision. He delivered lengthy written reasons in December of 2011. He granted summary judgment and made AJHR a Crown ward with no access for the purpose of adoption. Father appeals from that disposition.

The standard of review:

[ 18 ] The standard of review on a pure question of law is that of correctness. [5] With respect to findings of fact, the Supreme Court of Canada held that “...there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge – that of palpable and overriding error.” [6] On questions of mixed fact and law, the palpable and overriding error standard applies, unless there is an extricable error of law. [7]

[ 19 ] This standard of appellate review applies in child protection cases on appeals from a motion for summary judgment. [8]

The law of summary judgment generally and in child protection cases in particular:

[ 20 ] On December 5, 2011 the Ontario Court of Appeal released its decision in Combined Air Mechanical Services Inc. v. Flesch . [9] . In that decision, the court articulated what has become known as “the full appreciation test” on motions for summary judgment under the amended rule 20 the Rules of Civil Procedure . By this, the court stated that in order to grant summary judgment, the motions judge must ask the following question: “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?” [10]

[ 21 ] The earlier rule under the Rules of Civil Procedure required the court to grant summary judgement if satisfied “that there is no genuine issue for trial with respect to a claim or defence.” The amended rule now requires the court to grant summary judgment if satisfied “that there is no genuine issue requiring a trial with respect to a claim or defence.”[emphasis added] Under amended rule 20, the court shall consider the evidence submitted by the parties, and may weigh the evidence evaluate the credibility of a deponent and draw any reasonable inference from the evidence unless it is in the interest of justice for such powers to be exercised only at a trial. [11]

[ 22 ] The Rules of Civil Procedure do not apply in child protection proceedings; rather, the Family Law Rules apply. Summary judgment is governed by rule 16 of the Family Law Rules. Rule 16(6) provides:

If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[ 23 ] While rule 16 does not contain provisions identical to rule 20.01(2.1) under the Rules of Civil Procedure, permitting the court to weigh evidence, evaluate credibility of a deponent and draw reasonable inferences from the evidence, the Family Law Rules do provide in subrule 16(5)

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.

[ 24 ] It is not entirely clear if this new “full appreciation test” applies to summary judgment under the CFSA. In any case, the motions judge did not have the benefit of the Court of Appeal’s decision, since his reasons were released within days of Combined Air .

[ 25 ] In proceedings under the CFSA , summary judgment using rule 16 of the Family Law Rules has a long history, and has developed its own particular jurisprudence arising from the special duty on a child protection court to place the best interests of the child foremost. In child protection cases, summary judgment is no longer considered an extraordinary remedy and the remedy is not limited only to the clearest of cases. If the evidence does not raise a triable issue as to where the child’s best interests lie, then those best interests themselves call for a speedy resolution without the delay associated with a trial, which only prolongs the state of uncertainty about the child’s future. [12]

[ 26 ] In my view, given the different wording of the summary judgment rule under the Family Law Rules, coupled with the extensive jurisprudence under that rule, I see no lacuna in the Family Law Rules that would require jurisprudence under the Rules of Civil Procedure to be imported into the Family Law Rules. I therefore would not apply the Combined Air full appreciation test to summary judgment motions under the Family Law Rules in child protection proceedings.

The grounds for appeal:

[ 27 ] In his factum, father takes the position that first, the “full appreciation” test from Combined Air applies, and should have resulted in the motions judge receiving oral evidence from the father, his father and sister, collateral sources and from the child directly. He suggests that the failure to do so resulted in the motions judge’s inability to fully appreciate the evidence. As a result, he says the motions judge should not have granted summary judgment.

[ 28 ] Second, in his notice of appeal, father says the motions judge erred in the following ways:

a) In deciding father had failed to put forward a plan of care, when he had;

b) In preferring an early resolution to a just solution;

c) In taking into account the alleged criminal background of the father;

d) In not being guided by the principal consideration of best interests of the child;

e) In incorrectly inferring that the father’s alleged drug use in any way affected the best interests of the child;

f) In failing to conclude it was contrary to the child’s best interests to be “divorced” from his biological father.

[ 29 ] These general themes set out the father’s grounds for appeal.

The motion judge’s decision:

[ 30 ] The motion judge correctly articulated the test for summary judgment in child protection cases when he said “the court is required to examine the merits of the case to determine if there is a genuine issue for trial. The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence.” [13] He went on to note that the court should proceed with caution on summary judgment. Nevertheless, he also noted that summary judgment is not limited to only the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. In this regard, he referred specifically to the court’s decision in JFCS v. A.R. [14]

[ 31 ] The motion judge also properly noted that in child protection proceedings, the genuineness of an issue must arise from something more than “a heartfelt expression of the parent’s desire to resume care of the child.” He said the parent’s evidence must show that he or she “faces some better prospects than those that existed at the time of the Society’s removal of the child from her care and has developed some new ability as a parent.” [15]

[ 32 ] Last, the motions judge correctly stated that a party answering a motion for summary judgment cannot just rest on bald denials; they must “put their best foot forward.”

Discussion:

[ 33 ] I have already addressed the “full appreciation” test and whether the Court of Appeal’s decision in Combined Air applies here. In my view, it does not. It seems to me, however, that the motions judge imposed a more stringent standard on himself than the “full appreciation” test.

[ 34 ] Father suggests that the motions judge should have adjourned for oral evidence from him, his father, his sister and collateral sources. I disagree completely. Father had the onus of putting forward the best evidence he could in response to the Society’s summary judgment motion. As rule 16(4.1) puts it:

In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[ 35 ] The motions judge noted in paragraph 56 of his reasons,

In his briefs filed for the hearing, [father] states that he will have the support of his father, [J] and his sister [S] with whom he will reside, as well as his sister [W]. However, none of these family members filed any affidavits or documents stipulating the support of [father’s] plan for [AJHR], nor did any of them attend the hearing.

[ 36 ] The motions judge noted that father proposed that a Ms. N.S. be considered as an alternate care giver for AJHR. Father acknowledged being a relationship with this woman, but did not provide any detail as to the nature of their relationship, or their plans for the future. The motions judge was properly critical of father’s failure to include an affidavit from Ms. N.S. in support of father’s plan, particularly where it was obvious she would play a significant if not primary role in AJHR’s life.

[ 37 ] It seems to me that before the motions judge could determine the necessity of oral evidence he needed to have an evidentiary basis to seek it. It is not enough for the father to say his family members are part of his plan of care. He needed to flesh out the evidence of that plan as the motions judge suggested. It is not enough for the father to simply deny the Society’s allegations against him. He needed to meet those allegations with concrete evidence. The father had had months and extensions within which to prepare his plan of care. In total, he had nearly five months to do so. He did not meet the evidentiary burden of putting his best foot forward. Having failed to do so, he cannot complain the motions judge did not wish to hear oral evidence from him or his collateral sources.

[ 38 ] In his factum, the father argues that for the hearing to be fair, the parent must have an opportunity to present his or her case effectively. He cites New Brunswick (Minister of Health and Community Services) v. G. (J.) [J.G.] [16] to support this proposition. No one argues with this principle. The fact is, however, the father had ample opportunity to present his case effectively. He had counsel throughout. He was given extensions to prepare his responding material. That his responding material was deficient has nothing to do with a lack of opportunity to respond effectively.

[ 39 ] This ground of appeal must fail.

[ 40 ] The father says the motions judge erred in “preferring an early resolution to a just solution.” By this, I assume he refers to the motions judge’s reference to the principle enunciated in Children’s Aid society of Algoma v. P. And W.S. [17] , namely that the court must give paramount consideration to the best interest test, which includes, among other factors, as certain a future as possible.

[ 41 ] Here, the resolution for AJHR can hardly be characterized as “early”. At the time of the summary judgment motion he had already been in foster care for a year. He had been found a child in need of protection at his birth in 2007. He has now been in foster care for nearly two years. Permanency planning is vitally important for children in care. That is why the CLRA sets tight time lines for disposition. The motions judge quite properly considered the issue of delay as part of best interests. Where there is no triable issue, delaying resolution until a future trial which will certainly have the same outcome cannot be in a child’s best interests. I give no effect to this ground of appeal.

[ 42 ] Next, the father’s notice of appeal suggests the motions judge improperly took into account the father’s criminal background, “whereas there were no details of such criminal background, if any.” The father’s plan of care at paragraph 3 specifically says: “I have a criminal record. I also have criminal charges that are outstanding.” He provided nothing further in the way of any particulars. The motions judge says:

[Father] acknowledges that he has a criminal record and is subject to outstanding criminal charges. However, he does not provide any detail of his criminal history nor does he disclose the allegations or the circumstances that gave rise to the charges still outstanding against him.

[ 43 ] It seems to me it was father’s responsibility to provide particulars. If his criminal background was irrelevant, he should have given information about it to meet any concerns the motions judge might have had. Similarly, it was important for the motions judge to know the nature of the outstanding criminal charges against him. Without this information, the motions judge could only draw an adverse inference from father’s failure to provide the information.

[ 44 ] Jones J. also made reference to father’s “twenty year history of drug abuse and a lengthy criminal record which includes multiple drug offences, robberies and assaults, threatening, mischief and many fail to comply charges. His record begins in 1981 and his last entries are in 2007.” [18] This finding of fact has never been challenged on appeal. It was therefore open to the motions judge to comment on father’s criminal record, and his failure to address it in a meaningful fashion in his plan of care. Since he did not, it was reasonable for the motions judge to draw an adverse inference from this failure. This ground of appeal must fail.

[ 45 ] The father then suggests the motions judge was not guided by the primary principle of what is in the best interests of the child. To the contrary, the motions judge clearly addressed this issue when he reviewed father’s deficient plan of care and father’s lack of compliance with regular urine screens as ordered by Jones J and his unwillingness to cooperate and be candid with the Society. The motions judge concluded these factors would put AJHR at risk were he to be the father’s care. These were the very risks Jones J had identified when she first placed AJHR in his father’s care, subject to stringent conditions and supervision. These issues go to the heart of what is in AJHR’s best interests.

[ 46 ] The motions judge went on to comment that AJHR is flourishing in foster care, where he has resided since August 2010. His foster parents wish to adopt him and “provide him with the stability, nurturance and security that he deserves” [19] Stability, nurturance and security are factors that clearly bear on AJHR’s best interests. I cannot find the motions judge failed to address AJHR’s best interests.

[ 47 ] The father’s notice of appeal goes on to raise an issue regarding drug use. He suggests the motions judge incorrectly inferred father’s drug use affected AJHR’s best interests. I disagree with father’s submission. After a lengthy trial, Jones J clearly identified father’s (and mother’s) drug addictions as bearing directly on AJHR’s best interests. Her finding that father could care for AJHR was clearly conditional on his effectively dealing with his drug use and complying with the stringent conditions she imposed on him concerning urine and hair strand testing. Since father’s hair strand tests clearly showed long term, extensive and heavy cocaine use, the motions judge had no other option but to follow Jones J’s finding that this would have a catastrophic effect on father’s ability to parent AJHR and meet his best interests.

[ 48 ] Last, father suggests the motions judge was wrong to “divorce” AJHR from his father. He suggests this was contrary to AJHR’s best interests. Again, I reject this ground of appeal. The fundamental issue before the motions judge was whether AJHR should be made a Crown ward with no access so he could be adopted. That finding is effectively a “divorce” of parent and child. If I conclude, as I do, that the motions judge was right to grant summary judgment, that is the very judgment he was required to grant. I therefore cannot give any weight to this ground of appeal.

[ 49 ] The motions judge carefully considered the totality of the evidence, from both the Society and the father. He concluded the father’s evidence and plan were deficient and there would be no realistic possibility of an outcome, at trial, other than that sought by the Society, namely Crown wardship with no access. I agree with his conclusion.

Disposition:

[ 50 ] For all these reasons, the appeal is dismissed. There will be no order as to costs.

MESBUR J.

Released: 20120703