COURT FILE NO.: FS-9-12 & FS-13-12
DATE: August 31, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
K. S.
Respondent/ Appellant on Appeal
– and –
The Children’s Aid Society of the Regional Municipality of Waterloo
Applicant/Respondent on Appeal
In person
Ms. Smith, for the Applicant/Respondent on Appeal
-and-
C. B.
Respondent/Respondent on Appeal
-and-
Office of the Children’s Lawyer
Respondent on Appeal
In person
Mr. Shields, for the Respondent on Appeal
HEARD: August 21, 2012
The honourable Madam Justice C. Lafreniere
Matter before the court
[1] For ease of reference I will identify the Appellant, Ms. S. as “the mother”; Mr. B as “the father”, The Children’s Aid Society of the Regional Municipality of Waterloo as “the Society” and Mr. Shields, representative of the Office of the Children’s lawyer as “the children’s lawyer”.
[2] The mother appeals two orders made by the Honourable Justice Lynch: his temporary order on December 16, 2011 and his final order on December 23, 2011.
[3] The father did not file any material in response to the appeals nor did he attend at the hearing before me.
[4] The matter before Justice Lynch on December 16, 2011 was a motion for summary judgment (“MSJ”) brought by the Society with respect to its Status Review Application (“SRA”) dated May 31, 2011 regarding the final order made by the Honourable Justice Hardman dated July 14, 2010. On December 16, 2011 Justice Lynch denied the mother’s request for an adjournment of the MSJ and allowed the motion to proceed. On December 23, 2011 he released his decision with respect to the MSJ. Justice Lynch granted the MSJ.
Background facts and history of the litigation
[5] I make the following findings with respect to the facts and the history of this litigation at paragraphs [5] through [26] below.
[6] The subject children are C.B. born […], 1999 and M.B born […], 2001.
[7] The mother and father are the biological parents of the children. The mother was born […], 1974 and the father was born […], 1969.
[8] The children were apprehended on August 10, 2006 from the mother’s care. The mother and father were separated at that time and the mother had custody of the children. The Society commenced a Protection Application (“PA”) at that time.
[9] On August 23, 2006, the children were placed in the care of the father under terms of supervision pursuant to a temporary order. The children have remained in their father’s care since that time, subject to the Society’s supervision.
[10] The mother had supervised access from December 29, 2006 to April 30, 2007.
[11] A Parenting Capacity Assessment (“PCA”) conducted by Dr. Diane Benoit was released in May 2007. Dr. Benoit diagnosed the mother as having significant mental health issues and recommended that her access to the children be terminated until she received treatment.
[12] On May 5, 2007, the Society suspended the mother’s access as a result of the concerns raised in the PCA.
[13] On May 23, 2007, the Honourable Justice McSorley made a temporary order providing that the mother not have access to the children until she had received successful mental health treatment.
[14] On July 20, 2007, the Honourable Justice Epstein heard a MSJ brought by the Society with respect to the PA commenced in August 2006.
[15] Justice Epstein granted the MSJ and found the children in need of protection pursuant to s. 37 (2) of the Child and Family Services Act (“CFSA”). Justice Epstein placed the children in the care of the father subject to the Society’s supervision for a period of 8 months. Justice Epstein’s order is dated August 3, 2007. Justice Epstein found there was a triable issue with respect to the mother’s access and ordered that issue to proceed to trial.
[16] The mother appealed Justice Epstein’s order to the Superior Court. On December 14, 2007, the Honourable Justice Ramsay confirmed the protection finding and the order placing the children with the father subject to the Society’s supervision, but, found Justice Epstein had erred in finding the mother’s access was a triable issue. Justice Ramsay held the evidence of the mother’s conduct at access visits demonstrated the access to be harmful to the children and made a final order that the mother have no access to the children.
[17] The Society brought a SRA dated February 19, 2008 with respect to the August 3, 2007 order. The Society sought a continuation of the children’s placement with the father; further 8 months supervision; and an order that the mother have no access.
[18] The trial relating to the SRA began in November 2008 and concluded in February 2010 before the Honourable Justice Hardman. Justice Hardman reserved her decision at the conclusion of trial. Her decision is dated July 14, 2010. She placed the children in the care of the father subject to 12 months supervision with no access to the mother. The order provides at paragraph 1 that the children are placed with their father for a period of twelve months society supervision on the following terms:
a. C.B. and M.B. will attend an assessment regarding their emotional needs and the issues identified in the parenting capacity assessment including, but not limited to, any possible post-traumatic stress disorder.
b. C.B. and M.B. will attend and complete any supportive and therapeutic counselling or treatment designed to assist them with their emotional needs and where appropriate, to provide support regarding any relationship and attachment issues they may have with their mother and father.
c. [the mother] and [the father] will refrain from contact with one another in the presence of the children unless previously arranged with The Children’s Aid Society of the Regional Municipality of Waterloo.
d. [the mother] will attend an appointment with a physician to discuss mental health symptoms, at an Agency approved by The Children’s Aid Society of the Regional Municipality of Waterloo, and will follow all recommendations for further assessment and/or treatment. [the mother] will obtain a Psychiatrist to meet with her regularly and deal with the issues identified in the parenting capacity assessment.
e. [the mother] and [the father] will attend and successfully complete individual and/or group counselling with regard to personal issues at an Agency approved by The Children’s Aid Society of the Regional Municipality of Waterloo, and will follow through with treatment recommendations offered by the service provider.
f. [the father] will ensure that the children consistently attend school; will ensure that their educational needs are met; and will attend all required school meetings.
g. [the father] will provide adequately for the basic needs of the children (including: adequate nutritional food, clothing and shelter) and ensure that they regularly visit a dentist and medical checkups.
h. [the mother] and [the father] will co-operate with The Children’s Aid Society of the Regional Municipality of Waterloo.
i. [the mother] and [the father] will allow a worker from The Children’s Aid Society of the Regional Municipality of Waterloo to have access to their homes and to C.B. and M.B. (the children) at home and at school on both a scheduled and unscheduled basis.
j. [the mother] and [the father] will meet with a worker from The Children’s Aid Society of the Regional Municipality of Waterloo at the home, agency and/or community as requested by the worker.
k. [the mother] and [the father] will sign consents to release information to allow The Children’s Aid Society of the Regional Municipality of Waterloo to communicate with service providers and vice versa.
l. [the mother] and [the father] will advise The Children’s Aid Society of the Regional Municipality of Waterloo in advance of any change in address and/or telephone number.
m. [the father] will ensure [the mother] has no unauthorized access to the children and will contact The Children’s Aid Society of the Regional Municipality of Waterloo and Waterloo Regional Police Services immediately if she attempts to do so.
n. [the father] to attend any counselling recommended to assist him in addressing the children’s emotional needs.
[19] Paragraph 2 of Justice Hardman’s order provides: No right of access by [the mother] to C.B. and M.B.
[20] The Society commenced the SRA with respect to the existing order on May 31, 2011.
[21] A Settlement Conference was held before Justice Epstein, on September 14, 2011. The SRA was adjourned to be spoken to on October 5, 2011.
[22] The Society served its MSJ with respect to the SRA in September 2011.
[23] The mother brought a motion dated October 4, 2011 and returnable October 5, 2011. In the motion, the mother seeks: transcripts as requested in her Answer and Plan of Care dated July 8, 2011; instructions for an Assessment; disclosure of the Society’s file, the Supervising Society’s file, all service provider’s files regarding the children; disclosure of any and all assessments and an order striking paragraphs 1-21 of the SRA.
[24] On October 5, 2011, Justice McSorley made a temporary order providing:
a. [the mother] to serve and file her 14B motion and supporting affidavit on or before October 31, 2011;
b. Society to serve and file response to motion on or before November 10, 2011 by 4:30 p.m.;
c. [the mother]’s motion to be heard on November 16, 2011;
d. Motion for Summary Judgment adjourned to December 16, 2011 at 10:00 a.m (all day);
e. Mother to serve and file her response to the motion for Summary Judgment on or before December 9, 2011 by 4:30 p.m.;
f. Society and OCL to serve and file any reply material on or before December 14, 2011.
[25] The mother’s motion was heard by Justice Hardman on November 16, 2011. Justice Hardman released her decision dismissing the mother’s motion in its entirety on November 23, 2011. Justice Hardman provided her reasons in a 5 paged typewritten endorsement.
[26] The MSJ on the SRA came before Justice Lynch on December 16, 2011. The mother had filed a Form 14B motion seeking an adjournment of the MSJ. She did not file an affidavit in support of her motion. Her motion was served on the Society and Children’s Lawyer the morning of December 16, 2011.
Material filed on this Appeal
[27] I have reviewed all of the material filed:
a. The Appeal Book which includes:
i. The two Notices of Appeal;
ii. The Temporary Order of Justice Lynch dated December 16, 2011;
iii. Justice’s Lynch’s endorsement dated December 16, 2011 setting out his reasons for the Temporary Order;
iv. The Final Order of Justice Lynch dated December 23, 2011;
v. Justice Lynch’s written reasons with respect to his Order dated December 23, 2011;
vi. The mother’s Motion Forms dated December 16, 2011 and October 4, 2011;
vii. The Final Order of Justice Hardman dated July 14, 2010;
viii. The Answer and Plan of Care of Ms. S. dated July 8, 2011; and,
ix. The mother’s Affidavits dated October 31, 2011 and November 14, 2011.
b. The Respondent Society’s Appeal Record which includes:
i. The Affidavit of Jenna Wehrle sworn November 9, 2011 and
ii. The Endorsement of Justice McSorley dated October 5, 2011.
c. The Children’s Lawyer’s Appeal Record which includes:
i. The SRA dated May 31, 2011;
ii. The Affidavit filed in support of the SRA dated May 30, 2011;
iii. The Society’s Plan of Care dated July 13, 2011;
iv. The Affidavits of Jennifer Wehrle dated September 26, 2011 and December 1, 2011 in support of the Society’s MSJ;
v. The Notice of Motion for Summary Judgment first returnable October 5, 2011;
vi. The reasons for judgment of Justice Hardman dated July 14, 2010; and,
vii. The endorsement from the Ontario Court of Appeal dated December 12, 2011 dismissing the mother’s appeal from the Order granting summary judgment. The court also held that the proposed fresh evidence would not affect its conclusion.
d. The Facta filed by the mother, the Society and the Children’s Lawyer.
e. The Book of Authorities filed by the Children’s Lawyer.
f. The mother’s motion record dated August 14, 2011 which included her Notice of Motion seeking to admit new evidence on the appeal and her affidavit in support of her motion and setting out the new evidence.
g. The Transcript of the hearing before Justice Lynch on December 16, 2011.
Mother’s motion to file further evidence
[28] The mother brought a motion returnable at the hearing of the Appeal seeking an Order permitting her to present further evidence. She filed an affidavit sworn August 14, 2012 setting out the evidence she wish to submit to the court. The consultation report of Dr. Vijay Kumar dated July 12, 2011 is attached as Exhibit A to the affidavit.
[29] The mother submitted that the affidavit she wished to file as further evidence is the evidence she would have filed before the judge hearing the MSJ, if Justice Lynch had allowed her the adjournment to enable her to put her material together.
[30] She set out in her affidavit sworn August 14, 2012 at paragraphs 129-135 the reasons she did not meet the timelines set down by Justice McSorley on October 5, 2011 with respect to filing her affidavit in response to the Society’s MSJ.
[31] The mother relied on a case at Tab 7 of the Children’s Lawyer’s Book of Authorities.
[32] The Society’s position on the mother’s motion was that the evidence was all available to the mother at the time the MSJ was argued and that she has not adequately explained her failure to comply with the timeline established for the filings with respect to it. She had two months notice of the Society’s MSJ.
[33] The Society submitted the evidence, even if it had been before Justice Lynch, would not have changed the result because the information was not relevant to the issue before the court on the MSJ, for the most part.
[34] The Society pointed out that the case cited by the mother deals with a MSJ where the request was for crown wardship without access. Here, the request was for continued placement with the father and a further supervision order. The Society also pointed out that there will be a new SRA before the court in a matter of months as the existing order will expire in December 2012.
[35] The Society pointed out that Justice Lynch gave the mother many opportunities to file the medical report of Dr. Kumar and referred the court to the transcript at page 10. The mother was asked if she wished to file the report and she answered she did not want to file it by itself but with her affidavit.
[36] Despite these submissions the Society stated it would not object to the court receiving the mother’s affidavit.
[37] The Children’s Lawyer adopted the Society’s submissions with respect to the case relied upon by the mother and that the evidence the mother wished to submit was all available at the time the matter was before Justice Lynch and even if he had received it, the result would not have changed.
[38] He did object to the court receiving the affidavit as it did not meet the fresh evidence test.
[39] I allowed the mother to file the evidence. I agree that the affidavit does not meet the fresh evidence test but allowed the mother to file it because the Society did not object.
Mother’s submissions on the appeals
[40] The mother submitted that the order she seeks is set out in her factum at part 5, which provides:
a. The Motion for Summary Judgement set for December 16, 2011 should have been adjourned or set down to permit [the mother] to file Evidence and Respond on behalf of [the mother’s family]. The motion is returned to the Ontario Court of Justice.
b. Return the Children, in their best interest, home to their Mommy. C.B. and M.B. returned to [the mother’s] care. (under the Family court Order, which granted [the mother] Full Custody, or under Supervision)
c. Interim Order for C.B. and M.B. to have access with their Mommy, [the mother].
d. The children, C.B. and M.B. to attend counselling with their mother, [the mother].
e. [the father] to be assessed by a psychiatrist seen individually and together with [the mother].
f. [the father] and [the mother] attend cooperative counselling Services together and individually.
g. Or, the Status Review-02 is returned to the Ontario Court of Justice for Trial.
[41] It was difficult to follow the mother’s submissions but I did discern a number of themes or points that she emphasized. I summarize them below.
[42] With respect to the appeal of the temporary order she submits:
(a) Justice Lynch erred when he found that she had not filed an affidavit in support of her motion for an adjournment. She submits the motion for an adjournment was a procedural or uncomplicated matter and pursuant Rule 14 of the Family Law Rules (“the Rules”), she is not required to file an affidavit in support of her motion.
(b) Justice Lynch erred when, he did not grant the adjournment because he could not conduct a full hearing on the merits without her affidavit and she was seeking an adjournment to file it.
(c) Justice Lynch should have adjourned the MSJ in any event because the Children’s Lawyer had not yet met with the children and updated their instructions. Further, the Children’s Lawyer had not advised the child C.B., who turned twelve on […], 2011 about 6 weeks earlier of her right to attend the motion and file material pursuant to the CFSA.
(d) Justice Lynch erred when he found that the issue of the disclosure and transcripts the mother was seeking to prepare her response to the MSJ had been determined by Justice Hardman on November 16, 2011. The mother was seeking certain parts of the transcripts of the evidence before Justice Hardman and not a transcript of the whole 45 day trial.
(e) Justice Lynch misapprehended or failed to put due weight on the evidence before him in her affidavit sworn October 31, 2011, in which, she states that she seeks disclosure from the Society. The mother states in her affidavit that Justice McSorley instructed the Society, on October 5, 2011, to provide a copy of the entire Society file to the mother. The mother states, “She told them, what you do is show up on the day with it.”
[43] It is important to review the material filed on the motion brought by the mother returnable October 5, 2011 to fully appreciate the submission the mother was making with respect to her need for disclosure to respond to the MSJ.
[44] The mother states at paragraph 8 of her affidavit sworn October 3, 2011, that at the end of the trial before Justice Hardman, which the mother says spanned 504 days, she requested transcripts “(K.S.’s witnesses etc.)”. She states that Justice Hardman did not order production of the transcripts as she requested because it would not be available in time for the mother to do her submissions. Instead, Justice Hardman ordered that any transcript already prepared at the request of the court or the Society be copied to the mother. The mother says she was provided “only portions of mine and portions of Dr. Benoit’s testimony. . .”. She continues that she requested an excerpt during the trial and was told by the reporter that excerpts are not allowed. She concludes this paragraph stating, “The transcripts are now required to respond and dispute the current claim and to support mine.”
[45] The mother’s motion for disclosure was heard by Justice Hardman on November 16, 2011. The motion was dismissed. Justice Hardman states in her endorsement:
The mother has asked that the court order the transcripts identified in her Answer and Plan of Care. The mother has relied on the primary objective of the Family Law Rules as set out in sub-Rules 2 (2) to 2 (5) to deal with cases justly, sub-Rule 20 (5) regarding disclosure, and the Canadian Charter of Rights and Freedom section 11 (proceedings in criminal and penal matters) and 15 (equality under the law).
Certainly disclosure is always an element of dealing with a matter fairly, be it a criminal matter or a family matter. However, in this matter before the court the transcripts sought are not relevant to the issue before the court by way of status review. The transcripts relate to evidence before this court in the hearing of the last status review. The court has already made findings of facts and a decision regarding that status review application more than a year ago. The current status review will be examining primarily what has happened since that order and applying the law to those circumstances.
In her submissions, it was evident that the mother’s focus is to re-litigate the entire proceedings from the apprehension forward, something that would not be appropriate.
[46] Later in her endorsement (the paragraphs are not numbered) Justice Hardman states:
A third point should be noted. During the trial of the last status review, the court allowed the mother to make an audio recording of the proceedings pursuant to an order under sub-section 136(2)(b) of the Courts of Justice Act subject to certain terms. That recording was in part to assist her in preparing for her cross-examinations of witnesses and certainly was not intended to be the official record of the proceedings. Nevertheless, such a record would be available to her to review at least some of the evidence should she wish,
[47] Justice Hardman concludes her reasons regarding the transcripts with the statement:
The information sought by the mother is not necessary for her to have a fair trial in this proceeding.
[48] The mother also requested an assessment in her notice of motion. Justice Hardman dismissed this request as well stating it was impossible for the court to understand who the mother wanted assessed and why. She stated:
There have been numerous orders in this matter over the years to ensure that the society had the mandate to arrange counseling for the children. The last Parenting Capacity Assessment noted concerns about these children being adversely affected by raising the history of matters with them repeatedly. There is no evidence that any assessments are warranted based on the mother’s information before the court. Certainly there is no explanation about how any assessment would
• Assist the court on the outstanding status review or
• Be in the best interests of the children.
When the court mentioned the issue of the mother’s access to the children during the hearing of this motion, the mother made it quite clear that her access to the children was not the issue before the court but rather it was the children returning to live with her. Therefore I presume that the mother feels that the assessment would be to provide guidance on that issue. Given the issues before the court, it is not possible at this time to see that an assessment would be required by the court or even assist the court in its determination pursuant to the status review application.
[49] The mother requested disclosure of the materials upon which Dr. Benoit relied. She served requests for information on the father and the Society to secure this material. Justice Hardman stated:
In the affidavit, the mother raises the issue of disclosure regarding the materials upon which the last assessor relied. I have to agree with the society that that was dealt with at the time of that trial and in the decision. Once again, it is hard to see the relevance of such disclosure in these proceedings given the previous findings of the court.
[50] Justice Hardman dealt with the mother’s request for disclosure of the Society’s file:
(a) Despite her refusal to acknowledge it, the mother has not even sought disclosure of the society’s file since the commencement of this status review. She has been well aware of the society protocol regarding disclosure of the file and access to copies, a protocol applicable to parties and counsel seeking access to the file. The protocol is designed to protect the privacy of families while at the same time allowing parties to access the information kept by the society.
Despite being aware of the system, the mother has failed to make an appointment and attend to review the file. Therefore, no order is necessary as she may have the disclosure whenever she takes the necessary steps to make an appointment to attend at the society to access the file.
(b) The mother did not serve a motion seeking the release of their records on the “supervising society” presumably the society where the children live. Those records are not the records of this society. Should the mother bring such a motion, the society will have an opportunity to respond to any position that the mother may take.
There was no information to suggest that the name of the society was being withheld.
It should be clear that a court hearing the status review application may or may not consider the information sought as relevant in the consideration of this application.
[51] With respect to the appeal of the final order the mother submits:
(a) Justice Lynch erred when he made the finding that the mother was not cooperative; refused to work with the Society; and, there was no evidence of her attempting to meet with the Society.
(b) It is the Society that did not cooperate with the mother and refused to meet with her.
(c) Justice Lynch erred when he found that she had not completed the requirements set out in Justice Hardman’s order because she had obtained a psychiatric assessment (the report of Dr. Kumar) which is the further evidence admitted at the appeal and with respect to the counseling requirement on the mother because she did attend counselling and she did so on her own without any assistance from the Society because they refused to help her.
(d) Justice Lynch erred when he focused on the terms of Justice Hardman’s order she had not completed and did not focus or emphasize the terms not completed by the father and the Society. The father was to have participated in counseling and it had only just begun when the MSJ came before Justice Lynch. The Society was to arrange counselling for the children with respect to post traumatic stress disorder and it had not yet been arranged. The Society was supposed to arrange an assessment of the children and it, too, had not yet been arranged.
(e) Justice Lynch erred when he found that the relief that the Society was seeking on the SRA before him was a further supervision order with terms identical to those terms in the existing order because the order made by Justice Lynch does not contain identical terms. The provision at paragraph 1 (e) that both parents attend counselling in Justice Hardman’s order has been changed in Justice Lynch’s order to provide only the mother must attend counselling.
(f) Justice Lynch erred when he relied on the decisions and findings made by Justice Epstein and Justice Hardman.
(g) Justice Lynch erred because he did not undertake a full review of all of the evidence that was before the court when, Justices Epstein and Hardman made their decisions. He should have made his own findings of fact.
(h) Justice Lynch erred because he did not consider where the best interests of the children lay at the present time.
[52] The mother submits that Justice Lynch should not have placed the children with their father. He should not have made an order based on conflicting evidence that the mother had not followed the terms of Justice Hardman’s order.
[53] The mother submits she has complied with the term of securing a psychiatric assessment. She relies on Dr. Kumar’s report which is attached to the affidavit she filed on the appeal before me and the report referenced in her submissions to Justice Lynch on December 16, 2011.
[54] The mother submits her family doctor would not refer her to a psychiatrist because the family doctor did not find that she required any psychiatric treatment. The family doctor told her that, if she wanted a report from a psychiatrist for court purposes, she was going to have to pay a lot of money for it and she cannot afford to do so.
[55] The mother states at paragraph 130 of her affidavit, sworn August 14, 2012, she has attended counselling with Gabriella Zazzarino, however, Ms. Zazzarino left the counseling agency and she is waiting for a new counsellor.
[56] In her affidavit sworn October 31, 2011, the mother states at paragraph 11:
The parties and Counsel have refused to provide disclosure of their assessment by Diane Benoit. Parties and Counsel have refused to cooperate so that I, Ms. S., could have the desired assessment done for this review. OHIP does not cover court ordered assessments – particularly when the doctor does not assess a need for one. An individual cannot feasibly afford an independent assessment report of this, non-medical, nature Also, C.B. needs to be assessed by a psychiatrist seen both individually and with myself, Ms. S. I am willing to attend cooperative counseling services with C.B.
[57] The mother relies on her affidavit sworn August 14, 2012 as evidence of her parenting and the best interests of the children.
[58] The mother submits that it is not appropriate to bypass a hearing because it is more convenient to dispose of the matter by way of summary judgment motion.
[59] She submits that Justice Lynch should have directed a trial with oral evidence on the SRA.
[60] The mother submits that her request for an adjournment should have been allowed but acknowledged that if she is successful on her appeal of that order denying the adjournment, a possible result would be that the MSJ is remitted for argument. That is not the result the mother is seeking. The mother asks this court to set aside Justice Lynch’s order on the MSJ and substitute the order she seeks at Part 5 of her Factum.
[61] The mother submits that the issues she outlined in her Answer and Plan of Care constitute triable issues and precluded Justice Lynch from granting the Society’s order for summary judgment. Justice Lynch should have allowed for a full hearing.
[62] The mother also relies on the fact that the Court of Appeal dismissed her appeal on December 12, 2011 and then she had to appear before Justice Lynch on December 16, 2011. She suggests there was some unfairness in her having to prepare for both hearings at the same time and relies on this fact to explain her failure to comply with the filing timelines set on October 5, 2011.
Submissions of the Society
[63] The Society submits there is no evidence of an error in law or in fact by Justice Lynch. Nor is there any evidence that he misapprehended any of the evidence.
[64] It is important to bear in mind that the appeal is not to be a re-hearing of the matter before Justice Lynch and that his decision deserves deference and respect.
[65] The Society submits the mother has not adequately explained her failure to file her material within the timeframes (by December 9, 2011) set on October 5, 2011.
[66] It is noteworthy, the Society submits, that mother served her motion requesting an adjournment on the morning of the hearing before Justice Lynch, December 16, 2011.
[67] The Society submits Justice Lynch did not err when he found the mother should have filed an affidavit in support of her request for the adjournment. This motion was not procedural or uncomplicated. The adjournment of the MSJ was not an uncomplicated issue given the facts that the date had been scheduled two months in advance and delay was not in the children’s best interest.
[68] The Society submits that despite the fact the mother had not provided evidence by affidavit, Justice Lynch offered her the opportunity to advise the court why she had not be able to file material on time. A review of the transcript at pages 4 through 10 shows that Justice Lynch asked the mother 9 times to explain the delay and no cogent reason was provided by the mother.
[69] The mother submits she could not prepare her material without the disclosure she was seeking. The Society submits Justice Hardman carefully considered the mother’s request for disclosure. The issue of the disclosure had been determined by Justice Hardman. Justice Hardman also found the mother was aware of the Society protocol with respect to disclosure.
[70] The Society submits there is nothing in the Society’s file or the transcripts of the trial before Justice Hardman that would assist the mother in showing the steps she has taken since the last order. The information would be coming from her not the Society. She has not provided consents to the Society to allow it to confirm the counseling she says she has taken.
[71] Justice Lynch did not allow the mother to give oral evidence but he did allow her to make submissions.
[72] The mother now has put before the court the evidence she says she would have put before Justice Lynch. The Society submits had Justice Lynch received the evidence it would have made any difference to his decision. There is no evidence in the affidavit which would allow the court to make any finding that the mother’s circumstances are different than they were in July 2010.
[73] The mother submits the MSJ should have been adjourned because the Children’s lawyer had not met with the children. Even if this is accurate, it would not have been a reason to adjourn the MSJ because the real issue is whether or not the mother has made efforts to comply with Justice Hardman’s order. The views and preferences of the children would not assist in determining that issue.
[74] In any event, Justice Lynch found that the children’s views and preferences were before him because they were set out in the Society’s material.
[75] Further, the children’s lawyer did tell Justice Lynch that the children wished to see their mother. It was, however, not in their best interest to have access to their mother because the primary issue of her lack of compliance with the existing order had not been addressed.
[76] In absence of compelling evidence to explain why she could not get her material before the court, Justice Lynch’s denial of the mother’s request for an adjournment was appropriate.
[77] With respect to the decision on the MSJ, there is no evidence of any error in law or fact by Justice Lynch.
[78] On a SRA, the evidence starts at the date of the last order. The court does not look behind the order but rather the focus is on what has transpired since the order.
[79] Justice Hardman found that the mother has mental health issues and for that reason made the specific provisions in her order – actions she expected the mother to undertake before the no access provision could be reviewed.
[80] Justice Lynch found there to be no evidence that the mother had complied.
[81] The further period of supervision was needed, the Society submits because the mother refused to meet with the workers and to provide consents to allow the Society to assess her progress with respect to the psychiatric assessment and counseling.
[82] The Society submits the bulk of the mother’s evidence of requests to meet with the worker pre date the order made by Justice Hardman. The only reason that Jennifer Wehlre refused to meet with the mother was because the trial before Justice Hardman was on-going at that point.
[83] The worker invited the mother to meet with her in April 2011 in anticipation of the impending SRA. The mother did not do so.
[84] The mother was to be meeting regularly with a psychiatrist. Today she has provided evidence of one consultation in July 2011. This consultation does not satisfy the requirements set out by Justice Hardman.
[85] The mother submits she could not get an appointment with a psychiatrist for months but the Society submits she should have been making arrangements sooner. Further, she has not provided any independent evidence of her assertions.
[86] The mother has offered no evidence of counselling she has undertaken, other than her statement she has done so.
[87] The mother has relied on the fact that the father and the children’s counseling had just gotten underway when the matter came before Justice Lynch. The Society submits it is not its responsibility to set up the counseling. The order made by Justice Hardman did not put the responsibility on the Society but on all parties. The Society will assist if it is requested to do so.
[88] The fact that the counseling had just started was a factor considered by Justice Lynch and a reason the Society was seeking a further order of supervision.
[89] Society counsel stated she is not aware of the reasoning the counseling requirement for the father was not continued in the order made by Justice Lynch, however, whether or not there should be a term that the father participate in individual counseling is insufficient to set aside the order.
[90] Society counsel advised the court she will review the issue with the case managers at the Society and the issue can be addressed in the next SRA, if necessary.
[91] The Society submits at paragraph 27 of Justice Lynch’s reasons, he makes it clear his decision is not based only on the findings of fact made by his predecessors Justices Epstein and Hardman:
As the task of this court, on this motion, is to determine whether or not a triable issue exists, that determination is relatively straightforward. A supervision order is in place which focuses on concerns related to K.S. Ms. S. has not sought to establish that circumstances have changed in any way since the making of that order and in particular she has provided no evidence of compliance on her part with respect to the terms of that order. For that reason it is the determination of this court that no triable issue exists and these children remain in need of protection as found by Justice Hardman. Further that they should remain in the care and control of the respondent father subject to the supervision of the Society for a further period of twelve months. For the same reasons, that is no evidence of progress on the part of Ms. S. the existing order which prevented access by her will continue.
[92] The Society submits the mother’s suggestion that Justice Lynch did not consider the current situation but rather relied on the findings made previously is without merit. He found the children continued to be in need of protection.
[93] The Society submits the mother’s submission that the hearing was not fair and there are Charter issues as a result is also without merit. The same rules apply to all litigants whether or not they are represented. It is clear on a reading of the transcript that Justice Lynch conducted the hearing a fair and just manner.
[94] The mother emphasizes that this proceeding is to be focused on the best interest of the children. The Society submits it would not have been in the best interest of the children to delay the MSJ in circumstances where no good reason for the delay was offered by the mother. The children were entitled to have the SRA finalized at the earliest date. The Society submits Justice Lynch did not err when he denied the mother’s request for an adjournment.
[95] The Society submits that Justice Lynch correctly found that the mother had not followed the Society’s protocol regarding disclosure of its files. The mother could have seen the file much earlier than the day before the hearing before Justice Lynch had she followed the protocol.
Submissions of the Children’s Lawyer
[96] Mr. Shields submitted the emphasis the mother places on his role and whether or not he had met with the children is misplaced. He advised the court that the children wished to see their mother. He has never on behalf of the children supported the Society’s position the mother have no access, rather, he has not opposed the Society’s request. The issue of the children’s wishes would not have determined the matter. The issue was still going to be that the mother had not followed through on the terms of the order of Justice Hardman.
[97] There was no issue with respect to whether or not the Children’s Lawyer had met with the children raised at the hearing before Justice Lynch. This fact is confirmed by the transcript. The mother did not raise it as a reason for an adjournment before Justice Lynch.
[98] The Children’s Lawyer submits that he has no obligation to account to any of the parties with respect to whether or not he has met with the children. His obligation is to his clients.
[99] He advised he has been the lawyer for the children since November 2006 and been involved continuously through the many proceedings that have taken place.
[100] The children’s views may be presented to the court in a number of ways: an affidavit from a social worker assisting the Children’s Lawyer; from the counsel table with the court and parties’ consent and by other material such as affidavits from Society workers who have met with the children.
[101] The Children’s Lawyer stressed to the court there has never been any question that the children want to see their mother. The core issue at hand is best set out by Justice Hardman in the last paragraphs of her reasons dated July 14, 2010:
If in the future there is evidence that the children are emotionally well enough and strong enough to have contact with their mother, then a court may of course reconsider the issue. However, without that information, there cannot be any consideration of access. Given the evidence, it is in the best interests of the children for the order to be as long as possible to accommodate counseling and treatment. In my view an order of twelve months society supervision with the children with their father provides the time needed to re-assess the emotional needs of the children and provide the support and therapeutic intervention required to perhaps support a future access order. Further there was some evidence that it would be worthwhile having the mother enter into regular treatment with a psychiatrist. While it is not hopeful that the mother will acknowledge her issues sufficiently to be successfully treated, there should be a term requiring her to attend with a psychiatrist to deal with the issues identified in the PCA.
[102] The evidence before Justice Lynch was consistent with Justice Hardman’s finding. The mother has not offered evidence of even a shred of recognition of her need to seek mental health treatment. She continues to strive to re-litigate the same issues over and over again resulting in an on-going impasse.
[103] The Children’s Lawyer responded to the mother’s allegation that he did not inform C.B. of her rights. He points out that on October 5, 2011 C.B. was not yet 12 years of age. She turned 12 on […], 2011.
[104] The Children’s Lawyer submitted not enough is being done regarding the counseling and on-going assessment of the children as provided in Justice Hardman’s order. If the Society or the father or both of them are deficient in this regard, it is an area of concern, but, any such deficiency in and of itself would not make a difference to the decision made by Justice Lynch. The court had no other option but to continue the supervision order.
[105] The Children’s Lawyer echoed this submission with respect to the issue raised by the mother that the Society refused to meet with her or cooperate with her or assist her in any way. If the Society is at fault as the mother would have the court believe, the important fact is that there have been no meetings between the mother and the Society since Justice Hardman’s order was released in July 2010.
[106] The Children’s Lawyer stated that the most encouraging thing he has seen the mother do in many years is her attendance at Dr. Kumar’s office. However, she must acknowledge she needs a psychiatric assessment and treatment, if she is going to be successfully treated. A pro forma attendance at a doctor’s office is not enough to satisfy the requirements established by Justice Hardman.
[107] All of the issues before Justice Lynch are the same issues that were before Justice Hardman, nothing had changed. There was no triable issue with respect to changes made by the mother since Justice Hardman’s order.
[108] The Children’s Lawyer pointed out, as the Society counsel did, that a new SRA is coming within 4 to 5 months.
Mother’s Reply Submissions
[109] The mother reiterated that her delay in preparing material in response to the MSJ is adequately explained in her affidavit.
[110] She submitted that the Children’s Lawyer has not fulfilled his obligation to the children. She submitted their views have been consistent throughout this proceeding.
[111] The mother submitted she did seek to file the report from Dr. Kumar and she sought the adjournment in order to do so.
[112] The court has evidence of a change in circumstances in the report from Dr. Kumar.
[113] The mother submits she did the best she could to comply with the terms imposed by Justice Hardman and submits it is not fair that the terms regarding the children’s counseling and assessment are not complied with but the mother is expected to comply with the terms relating to her.
[114] The mother concluded her reply submissions by quoting from a transcript of a hearing in 2006, shortly after the apprehension. The mother quoted the worker who stated at that hearing that the issue has never been the mother’s parenting ability.
Law and Analysis
Test for Summary Judgment
[115] Rule 16 of the FLR permits the court on application by the Society to make a summary judgment where there is no genuine issue for trial with respect to the Society’s application.
[116] The Society, as the moving party, bears the onus of proving on a balance of probabilities that there are no genuine issues for trial.
[117] Once the moving party in a MSJ has made out a prima facie case, the onus shifts to the responding party to adduce evidence of specific facts that raise a genuine issue for trial. The responding parent has a positive obligation to put his or her best foot forward to defend the motion with affidavit evidence. The court must assume that the evidence put forward by the responding party is the best evidence they have to offer at that stage. See Children’s Aid Society of Hamilton v. C.R. 2006 CanLII 79342 (ON SC), [2006] O.J. No. 3442 (S.C.J.); Children’s Aid Society of Metropolitan Toronto v. A. (M.) 2002 CanLII 53975 (ON CJ), [2002] O.J. No. 2371 (OCJ); and Kawartha-Haliburton Children’s Aid Society v. Wendy M. et al., 2003 CanLII 2441 (ON SC), [2003] O.J. No. 3903 (Ont. Fam. Ct.).
[118] The court must review the evidentiary record to determine if there are any factual issues in dispute that give rise to a genuine issue for trial. The responding parent must put his or her best foot forward and not rely on a simple denial of the Society’s allegations. The respondent parent must set out the specific facts upon which he or she relies to establish a genuine issue for trial.
[119] Justice Chappel, in Children’s Aid Society of Niagara Region v. S.J.W. [2011] O.J. No. 4876 (SCJ) sets out the test with respect to triable issues of fact, at paragraph 67:
Not every disputed fact or question of credibility gives rise to a genuine issue for trial. A genuine issue for trial must relate to a material fact or facts. It must be an issue that is real and authentic, is not spurious to the case, and is substantial and sufficiently important to warrant a judicial determination. In addition, the issue must be relevant, in the sense that it must relate to material facts that are critical to the determination the court is called upon to make. Disputed facts, the existence or non-existence of which will not affect the outcome of the case, do not raise a genuine issue for trial. See Children’s Aid Society of Algoma v. E.W. 2001 CanLII 37515 (ON CJ), [2001] O.J. No. 2746 (OCJ); Children’s Aid Society of Toronto v. R.H. 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (OCJ); and, Kallaba v. Bylykbashi {2006} O.J. No. 545 (ON CA).
[120] The Society is not required to meet the test of “clearest of cases”. See R.A. v. Jewish Family and Child Service, [2001] O.J. No. 47 para 20.
[121] The question of whether there is a genuine issue for trial must be determined in the context of the overarching principles set out in s. 1 of the CFSA that is its primary purpose is “to promote the best interests, protection and well being of the children.”
[122] The court must ensure that the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay and the continued state of uncertainty for the child that would result if the matter was to proceed to trial. See R.A. v. Jewish Family and Child Service, supra.
[123] Rule 16 provides a remedy to contain and control a child’s drift in litigation and it’s meant to prevent a child being held in “limbo”.
[124] In the matter of Kawartha-Haliburton Children’s Aid Society v. Wendy M. et al., supra, the society brought a motion for summary judgment seeking a final order finding the children in need of protection and making them Crown wards with no access. Justice Barry G.A. MacDougall referred to a decision of Justice Susan G. Himel in F.B. v. F.G. (2001) 2001 CanLII 28231 (ON SC), 199 D.L.R. (4th) 554, (Ont. S.C.), and noted her reference to the following the decision of Justice Hardman in Children’s Aid Society of Waterloo Region v. Taryn S. and Eric P., 1999 CanLII 14252 (ON CJ), [1999] O.J. No. 5561 (Ont. C.J.):
[9] While it may not be appropriate in the face of a child’s best interests and the new rules to suggest that the parent’s position must be “untenable” in order to resort to summary proceedings, it is clear that the nature of the evidence to be before the court, the reasonableness of any potential plans and the statutory time frames all have a role to play in the determination of whether there is a genuine issue for trial.
[125] Justice MacDougall stated at paragraphs 52 and 53:
[52] In the summary judgment process in a child protection case, a responding party has moved beyond mere allegations and set forth facts in sufficient detail to show a genuine issue of trial. Therefore a bald allegation as to the existence of a parent-child relationship, in the absence of factual detail, is insufficient to raise a genuine issue for trial. Bruvels v. Guidon (2000), 2000 CanLII 22572 (ON SC), 5 R.F.L. (5th) 27, [2000] O.J. No. 558, [2000] O.T.C. 3, 2000 CarswellOnt 539 (Ont. Fam. Ct.).
[53] The party responding to a motion for summary judgment must put their “best foot forward” in moving beyond mere allegations and setting forth facts in sufficient detail to show a genuine issue for trial. The onus remains on the moving party to show that there is no genuine issue for trial, but the responding party must “lead trump or risk losing”. Trans-America Life Insurance Company of Canada v. Canada Life Assurance Company (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423, [1996] O.J. No. 1568, 2 O.T.C. 146, 1996 CarswellOnt 1699 (Gen. Div.)
[126] In Children’s Aid Society of Toronto v. R. H., supra, Justice Heather L. Katarynych dealt with a motion for summary judgment of a status review application seeking Crown wardship of the two year old child, without access for the purpose of adoption. Justice Katarynych stated at paragraph [14]:
[14] The adjudication of whether there is a genuine issue for trial must be undertaken with extreme caution. Under these rules, if the motion evidence does not disclose a genuine issue requiring a trial, the court must make a final order in the application. The motions judge has no discretion to do otherwise, even if the motions judge feels that a party should have his or her day in court.
[127] At paragraph [17], Justice Katarynych stated:
[17] The court’s function is very narrow in this motion. The task is not to resolve an issue of fact but to determine whether a genuine issue of fact exists. The issue must be germane to the judicial decision required in the case. A “genuine” issue of fact requires that the fact be material to the decision that must be taken in the main litigation. If the result of the proceeding does not turn on the existence or non-existence of the fact that is advanced as a genuine issue, then it cannot relate to a “genuine issue for trial”. See Irving Ungerman Ltd. v. Galanis (1991), 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545, 50 O.A.C. 176, 83 D.L.R. (4th) 734, 1 C.P.C. (3d) 248, [1991] O.J. No. 1478, 1991 CarswellOnt 370 (Ont. C.A.), at pages 550-552 [O.R.].
[128] In R.A. v. Jewish Family and Child Service, supra, at paragraph 19, Lane J. refers to the decision of Valin J. in C.A.S. of Nipissing v. M.M. 2000 CanLII 22922 (ON SC), [2000] O.J. No. 2541. The matter before Valin J. was an appeal of an order of Crown wardship without access made on motion for summary judgement. Valin J. dismissed the appeal, noting that the burden is on the moving party to show clearly that a trial is unnecessary: see Irving Ungerman v. Galanis (1991) 1991 CanLII 7275 (ON CA), 4 O.R. (3rd) 545 (C.A.) and that a motions judge is not to resolve issues of credibility, draw inferences from conflicting evidence or choose between two or more reasonable inferences from the evidence: see Transamerica Occidental Life Insurance Co. v. Toronto-Dominion Bank (1999) 1999 CanLII 3716 (ON CA), 44 O.R. (3rd) 97 (C.A.).
[129] At paragraphs 22, Lane J. refers to the decision in Bruvels v. Guindon 2000 CanLII 28163 (ON SC), [2000] O.J. No. 875, (S.C.J.):
[22] In Bruvels v. Guindon, a motion by the respondent to dismiss claims for chid support for the applicant’s children from a former relationship, the applicant asserted that the respondent stood in loco parentis to the children. Both parties filed affidavits, but the motions judge held that the applicant’s did not set out an evidentiary basis showing the existence of a genuine issue for trial. She had failed to address many of the pertinent points and her allegation alone could not fill the gap. The test of putting the “best foot forward” was adopted.
[130] At paragraph 23, Lane J. goes on to state:
[23] The inherent logic of the rule imposes on the parents the task of responding to the evidence of the society if they are to avoid an adverse decision. This could be done by delivering affidavit evidence themselves or of others on their behalf, showing a different state of facts from those relied on by the Society. It could be done by showing the Society’s evidence does not address a material fact at all, so there is a gap in the proof. But if the defence is a different state of facts, mere denial cannot be enough to raise a triable issue of fact.
[131] The court must rely on the evidence provided by the parents in their affidavits filed in response to the Society’s motion for summary judgment. It is not an option for the court to speculate as to possible evidence the parents may call at trial. To suggest that the Society’s evidence must be tested through cross-examination is not enough. This submission is akin to the “bald allegation” or “mere denial” referred to in the case law. The parents must put their “best evidentiary foot forward” to demonstrate that material facts are in dispute and/or there is an issue of credibility and thus, summary judgment is precluded.
The Standard of Appellate Review on an Appeal from the Order made on Motion for Summary Judgment
[132] Justice Lynch’s decision was made on the basis of affidavit evidence. He did not hear any oral evidence. The standard of review where the judge of first instance has not heard oral evidence is whether the judge erred in his appreciation of the evidence, in the inferences he drew from the evidence or in his application of the relevant legal considerations. An appeal is not a rehearing which takes place as though there were not already a decision of the merits of the case and the judge’s decision is entitled to due respect. See Carter v. Brooks, 1990 CanLII 2623 (ON CA), 2 O.R. (3d) 321.
[133] The standard of appellate review lies somewhere between palpable and overriding error and correctness. In Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321 (ON CA), Justice Laskin set out the standard of review where the entire record is in writing:
Therefore, although the entire record before a trial judge or a motion judge consists of documentary or written evidence, as it does in this case, the judge’s factual findings are entitled to deference on appeal. What standard of deference applies in such a case? It is not easy to articulate a standard less deferential than manifest error “but falling short of correctness”. I suggest that it may simply be a matter of weight or emphasis, or that, plausibly, a uniform standard of appellate review should be applied to trial judge’s findings of fact, whether the evidence is oral, entirely documentary, or, more typically, a combination of the two.
What is important for this appeal is the kind of error that justifies intervention by an appellate court. An error of law obviously justifies intervention. An appellate court may interfere with a finding of fact if the trial judge or motions 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.
[134] The mother submits she was treated unfairly. A similar fact situation was before Justice Mesbur in Native Child and Family Services of Toronto v. J.M. 2007 CanLII 4326 (ON SC), [2007] O.J. No. 605. In that matter the mother appealed a summary judgment order making her daughter a Crown ward with no access.
[135] The mother argued that she was denied due process when the motion’s judge refused to adjourn the matter and heard the motion for summary judgment without any written material from her and when she was not represented by counsel.
[136] Justice Mesbur found that the transcript replete with the motions judge asking the mother to tell him everything she wanted to. The motions judge pointed out to the mother she had the Society’s materials for two months.
[137] The mother, in the case before Justice Mesbur, was asked if she disagreed with the Society’s submissions about her mental health. The mother said she did but had no medical or psychiatric evidence to support her position.
[138] Justice Mesbur concluded that the hearing was fair and that the motions judge had made every effort to permit the mother to make every submission she wished. Justice Mesbur found it noteworthy that the mother did not attempt to submit her handwritten material.
[139] In the matter before me, it is clear from the transcript of the hearing before Justice Lynch that he gave the mother many opportunities to explain why she required an adjournment. The mother did not provide any reasonable explanation or offer any cogent reason as to why the hearing should be delayed.
[140] The mother was not treated unfairly. On October 5, 2011, Justice McSorley set out the timelines for filing of material for the MSJ. The mother had two months to file her material.
[141] This court received the evidence the mother says she would have filed on before Justice Lynch. The affidavit does not provide any evidence that would give rise to a triable issue. There is no evidence now and there was no evidence before Justice Lynch that the mother has complied with any of the terms imposed on her by Justice Hardman in her order dated July 14, 2010.
[142] Whether or not the Society worker cooperated with the mother is beside the point. The evidence would only come from the mother. It would be in the form of a report from a treating psychiatrist, not a consultation report such as the report from Dr. Kumar. Justice Hardman was very clear in her order. The mother was to be seen regularly by a psychiatrist to deal with the issues raised in the PCA. There is no evidence the mother provided the PCA to Dr. Kumar or to her family doctor. This is not surprising because the mother does not accept the findings in the PCA.
[143] Justice Lynch found that the mother had not cooperated with the Society. There was evidence before which allowed him to make this finding.
[144] Whether or not the Children’s Lawyer had fulfilled his mandate is also beside the point. Even if I could find he had not, it would not change the end result. The change in circumstances had to be a change in the mother’s circumstances to justify a change to the existing order.
[145] In any event, I find there is no evidence upon which the mother’s allegations against the Children’s Lawyer can be justified. It is clear in the transcript before Justice Lynch, the Children’s Lawyer fulfilled his mandate.
[146] On page 35 of the transcript at line 19, Mr. Shields stated:
I am prepared at this point to actually convey, with the consent of [the mother] my position with respect to the expressed wishes and the preferences of the children briefly. Again there will be no surprise to her I would expect. . .
[the mother]: I do not consent to him.
Mr. Shields: . . . but if she doesn’t consent to that then I won’t do that.
The Court: That is fine.
[147] The inquiry on a SRA begins at the date of the last order. The mother offered virtually no evidence (in the affidavit filed before me) of any change since the date of the order. She is focused on re-litigating the PA and the earlier SRA.
[148] I find that Justice Lynch did not make any errors in fact or in law. He did not misapprehend the evidence before him. He did not rely on the earlier decisions of Justices Epstein and Hardman but rather assessed the evidence before him and made findings of fact.
[149] The mother offered no evidence of any changes in her circumstances from the date of the last order other than her one consultation with Dr. Kumar. The conditions imposed on the mother by Justice Hardman’s order are clear:
[the mother] will attend an appointment with a physician to discuss mental health symptoms, at an Agency approved by The Children’s Aid Society of the Regional Municipality of Waterloo, and will follow all recommendations for further assessment and/or treatment. [the mother] will obtain a Psychiatrist to meet with her regularly and deal with the issues identified in the parenting capacity assessment.
[the mother] and [the father] will attend and successfully complete individual and/or group counselling with regard to personal issues at an Agency approved by The Children’s Aid Society of the Regional Municipality of Waterloo, and will follow through with treatment recommendations offered by the service provider.
[150] The mother has not complied with Justice Hardman’s order. In that regard, nothing has changed since the last order. There is no triable issue with respect to the mother’s access, let alone return of the children to her care as she seeks.
[151] The facts that the father has not completed counselling and the counselling and assessment have not been organized for the children are not an answer to what the mother has failed to do.
[152] Justice Lynch did not err by denying the mother’s request to adjourn the MSJ. The mother had 3 months notice of the MSJ. She knew from October 5, 2011 she had to file her material by December 7, 2011 and that a whole day of December 16, 2011 had been set aside to deal with the MSJ. Yet the mother served a 14B motion the morning of December 16, 2010 without an affidavit to offer evidence of her need for the adjournment. Despite the fact she did not have an affidavit Justice Lynch invited her to tell him why she needed an adjournment. It would not have been in the children’s interest to have the matter delayed.
[153] I reject the mother’s submission that there were disclosure issues outstanding on December 16, 2011 and for that reason her request for adjournment should have been allowed. The disclosure issues raised by the mother were determined by Justice Hardman in her decision dated November 23, 2011.
[154] Nothing in the transcripts of the earlier proceedings or in the Society file would give rise to a triable issue with respect to the changes in the mother’s circumstances which would lead to a consideration of her claim for access or return of the children to her care. The required evidence could only come from the mother.
[155] The mother’s efforts are all directed at re-litigating the issues determined by Justices Epstein and Hardman. She wants to revisit the apprehension itself and establish that her children should never have been removed from her care. She has had no contact with her children since May 2007 yet she asks this court to set aside Justice Lynch’s order and substitute an order returning the children to her care and allowing their father to have only supervised access to them.
[156] The mother’s appeal of Justice Lynch’s temporary order dated December 16, 2011 is dismissed. The mother’s appeal of Justice Lynch’s final order dated December 23, 2011 is dismissed.
[157] If the Society or the Children’s Lawyer seeks costs, submissions may be made in writing.
C. Lafreniere J.
Released: August 31, 2012