COURT FILE NO.: 12-170
DATE: 2012-09-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bruce Grey Child & Family Services
Respondent
Helen Trentos, for the Respondent
Augusta Tribe, for the Office of the Children’s Lawyer
- and -
D.N.
Jill Gamble, for the Appellant
Appellant
HEARD: August 31, 2012,
at Owen Sound, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] C.J., who turned three years old last month (born […] 2009), faces permanent separation from his nineteen year old mother, D.N. (Ms. D.N.), as a result of a summary judgment made by Justice R.S.G. MacKenzie of the Ontario Court of Justice on May 15, 2012, making C.J. a Crown ward without access to his mother. Justice MacKenzie’s reasons were not provided to this Court. The Society’s counsel states that they were brief, delivered from the Bench on the date of the hearing.
[2] Ms. D.N. has appealed from Justice MacKenzie’s judgment. She now seeks a stay of the Order, pending the hearing of her appeal, so that she can exercise access to her son in the interval. She is currently living with her mother, has been employed through a temporary placement agency for the past three months, and is willing to co-operate with any conditions the Court may impose for her access.
[3] The Society opposes Ms. D.N.’ motion, arguing that if she resumes access to C.J., he will be confused by the fact that his care is being shared by his mother and his foster parents, who wish to adopt him, and further, that he will be distressed if she misses access appointments with him as she sometimes has done in the past, or is unsuccessful in her appeal and is permanently separated from him.
[4] The motion raises the following issues that must be addressed:
a) Does Ms. D.N.’ appeal raise a serious issue?
b) Is it in C.J.’s best interests for Ms. D.N.’ access to C.J. to be resumed pending the hearing of her appeal?
BACKGROUND FACTS
[5] C.J. was born three years ago, on […], 2009. His mother’s custody of him was supervised by the Society for reasons not set forth in the evidence on this motion. The evidence describes the chronology of the Society’s supervision as follows:
(a) On January 27, 2010, C.J. was placed in the temporary care of his mother, subject to the Society’s supervision. Ms. D.N. was then living at Ramoth House, a co-operative living residence for young women and their children up to the age of one year. Ramoth House offers instruction in parenting and life skills to its residents on a twenty-four hour basis. The programs include public health, infant development, and Ontario Works.
(b) On May 19, 2010, shortly after leaving Ramoth House with his mother, and again for reasons not set out in the evidence, C.J. was apprehended and again placed in the temporary care of the Society on a without prejudice basis. That order was confirmed on August 4th. On April 6, 2011, C.J. was returned to his mother’s care, subject again to the supervision of the Society.
(c) On October 7, 2011, the Society re-apprehended C.J. when the Owen Sound Police Services arrested Ms. D.N. for being intoxicated in a public place. The Society states that when it apprehended C.J., it determined, based on facts not set out in the evidence, that C.J. had been left in the care of an “inappropriate caregiver.” The Society placed C.J. in the temporary care of the Society on a without prejudice basis and then applied for summary judgment for Crown wardship without access, which Justice MacKenzie granted on May 15, 2012.
POSITIONS OF THE PARTIES
[6] Ms. D.N. has appealed from MacKenzie J.’s Order on the grounds that:
(1) Justice MacKenzie shifted the evidential burden onto her to prove that there was a genuine issue for trial.
(2) He made his determination based solely on the affidavit evidence of Society workers, some of which was hearsay.
(3) She will seek to introduce fresh evidence at the hearing of her appeal, concerning her steady employment, residence with her mother, and attendance at counseling programs, to address the Society’s concerns about her past unstable residence, alcohol abuse, and irregular attendance at access visits.
[7] Ms. D.N. submits that there is reason to doubt the correctness of Justice MacKenzie’s Order. She further submits that based on the progress she has made in the past three months, it is in C.J.’s best interests that her access to him be restored pending the hearing of her appeal so that she can demonstrate that she is now capable of caring for him.
[8] The Society submits that there is no merit in Ms. D.N.’ appeal. It points to the following sources of potential harm to C.J. if Ms. D.N. resumes her access to him:
(a) The time that C.J. has spent in the Society’s care will be extended;
(b) Ms. D.N.’ past alcohol abuse;
(c) Ms. D.N.’ past unstable accommodation;
(d) Ms. D.N. allegedly leaving C.J. with an inappropriate care-giver (although, as noted above, the details have not been provided to the court);
(e) Ms. D.N.’ past irregular attendance at appointments for access to C.J.
LAW AND EVIDENCE
a) The Court’s jurisdiction
[9] The Child and Family Services Act,[^1] in section 69(4), gives the Court power, where a decision regarding the care and custody of a child is appealed, to make a temporary order for the child’s care and custody pending the final disposition of the appeal based on the child's best interests. The Act provides, in this regard:
b) The test to be applied
[10] Ricchetti J. recently articulated the test to be applied in motions to stay a no-access order pending appeal in Children’s Aid Society of the County of Bruce v. D.J. After reviewing the conflicting law on the issue, Justice Ricchetti concluded:
In my view, these motions should be approached in the following manner:
i. The appellants must show there is a serious issue to be determined in the appeal; and
ii. Based on a consideration of all relevant factors set out in the Act as to what is in the children’s best interests, what interim order pending the appeal would be in the children’s best interests?[^2] [Citations omitted]
c) The factors to be considered
[11] The Act sets out the factors the court should consider when making a determination as to what order would be in the child’s best interests. Section 37(3) of the Act Includes the following among those factors to be considered:
(a) the child's physical, mental and emotional needs, and the appropriate care to meet those needs;
(b) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family;
(c) the child's relationships by blood;
(d) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
d) Does Ms. D.N.’ appeal raise a serious issue?
[12] For the following reasons, I find that Ms. D.N. has appealed in good faith on grounds that, taken as a whole, raise serious issues, namely, whether Justice MacKenzie’s consideration of hearsay affected the result and whether fresh evidence about Ms. D.N.’ residence, employment and counseling, which Ms. D.N. will seek to rely on at the hearing of her appeal, will lead to a different conclusion as to whether her relationship with her son is in C.J.’s best interests.
(1) Shifting the evidentiary burden
[13] Ms. D.N. asserts that Justice MacKenzie erred in shifting the evidential burden onto her to prove that there was a genuine issue for trial. This would not amount to an error in law. Accordingly, this ground, standing alone, does not raise a serious issue for appeal.
[14] Rule 16 of the Family Law Rules permits the court to grant summary judgment in a child protection case. The onus was on the Society, as the moving party, to establish, in its affidavit evidence, that there was no genuine issue requiring a trial. Rule 16(4.1) then required Ms. D.N., as the party responding to the motion, to set out, in her affidavit evidence, proof of the specific facts that she said gave rise to a genuine issue for trial. The legal burden remained on the moving party, then, to show, based on all the evidence, that there is no triable issue.[^3]
[15] The Society was required to disclose its complete case to the court. If Ms. D.N. missed more than 13 appointments, the Society was required to prove this. On the other hand, Ms. D.N. was required to put her best foot forward in response to the Society’s evidence. If she had explanations for why she missed 13 appointments, she was required to put that evidence forward. Justice MacKenzie was then required to take a good, hard look at the full evidentiary record to determine whether there were any factual issues in dispute which created a genuine issue for trial.[^4] The court’s power to grant summary judgment is to be exercised cautiously, keeping in mind that it is in a child’s best interests to have issues resolved quickly and without unnecessary delays.[^5]
[16] If Ms. D.N. had pleaded before Justice MacKenzie that she had attended one out of 42 appointments to see C.J., and was therefore a good mother, and the Society, being the moving party, established that attending a single appointment wasn’t enough to make her a good mother, if she missed the other 41 appointments, then Mr. Justice MacKenzie could correctly have concluded that there was no genuine issue for trial, even if Ms. D.N. had attended the single appointment. In that case, the fact that she had attended a single appointment would not, in law, raise a triable issue as to whether she was a good mother, and she would have failed to meet her evidentiary burden of showing that she had attended more than a single appointment, which would have been necessary, in law, to raise the triable issue.
[17] If, on the other hand, Ms. D.N. had pleaded before Justice MacKenzie that she had, in fact, attended 29 appointments, and missed only 1, and that she had a good reason for missing the 1, based on a contagious illness that would have kept a prudent mother home, then Justice MacKenzie could have made an error in law in finding that even if she had attended most of her appointments, there was not a genuine issue for trial as to whether she was a good mother whose relationship with C.J. was in his best interests. If she missed 13 of the appointments, the issue might not be so clear cut. Even then, though, if she could produce fresh evidence on appeal that proved that what had caused her to miss the 13 appointments was that she suffered from an attention deficit disorder that has now been successfully treated, and she is now able to keep all but 1 of her next 42 appointments (and the one she misses will be because she has a contagious illness that would keep a prudent mother home), then she will be able to demonstrate that there is a genuine issue for trial as to whether she is a good mother, even if the evidence before Justice MacKenzie led him to conclude otherwise.
[18] Justice Morden, speaking for the Court of Appeal in Hi-Tech Group Inc. v. Sears Canada Inc., distinguished between the legal burden and the evidentiary burden in a more abstract way, in the following terms:
These two Ontario decisions, Dawson[^6] more fully than Irving Ungerman,[^7] make it clear that: (1) the legal or persuasive burden is on the moving party to satisfy the court that there is no genuine issue for trial before summary judgment can be granted (this is what rule 20.04(2) says); and (2), by reason of rule 20.04(1), there is an evidential burden, or something akin to an evidential burden (because the motions judge does not find facts), on the responding party to respond with evidence setting out “specific facts showing that there is a genuine issue for trial”. Failure of the responding party to tender evidence does not automatically result in summary judgment.
The short point is that the motions judge, having considered all of the evidence and the parties’ submissions on it, must be satisfied that there is no genuine issue for trial before he or she may grant summary judgment. This is the legal burden resting on the moving party and it never shifts.[^8] [Emphasis added]
[19] If the distinction between the legal onus and the evidentiary burden is correctly made, it did not necessarily amount to an error in law for Justice MacKenzie to hold that Ms. D.N. had not met her evidentiary burden, and to have concluded, having regard to all of the evidence from both parties, that there was no genuine issue for trial.
(2) Hearsay evidence
[20] Ms. D.N. asserts that Justice MacKenzie made his determination based solely on the affidavit evidence of Society workers, which contained hearsay.
[21] Gordon J., in Children’s Aid Society of Hamilton v. M.N., set out the evidentiary obligations of the parties in a motion for summary judgment[^9] as follows:
Of importance on this motion are the principles and standards of evidence required from the moving party. The following is a summary of some of those obligations as it relates to this case:
(a) A full and complete evidentiary record is required: see B.(F.) v. G.(S.), supra, at para. 28.
(b) only admissible evidence may be tendered: see Cole v. Hamilton (City) 2002 49420 (ON SC), (2002), 58 O.R. (3d) 584 (Ont. S.C.J.), aff’d. 2003 38165 (ON CA), 65 O.R. (3d) 156 (ON CA).
Hearsay evidence is to be avoided. The rules of evidence are relaxed in applications for temporary care and custody as s. 51 of the Act permits evidence the court considers “credible and trustworthy in circumstances.” While Rule 16(5) appears to be permissive as to hearsay evidence, there is the penalty attached of an adverse inference.[^10]
[22] At the hearing of Ms. D.N.’ motion to stay Justice MacKenzie’s Order pending the hearing of her appeal, the Society’s counsel stated that it had tendered only some of the evidence it had relied on before Justice MacKenzie. Lindsay Wilson, one of the Society’s Child Protection Workers, states in her affidavit that in its motion for summary judgment, the Society relied on the following:
(a) Three affidavits from Sacha Wagner;
(b) Affidavits of Karen Camer, Amy Peyton, and Tracy Hoskins, who were visit supervisors at various times;
(c) The affidavit of Jennifer Riesberry, who co-facilitated a parenting program;
(d) The affidavit of Shannon Winnington, the after-hours worker who received a call from Ms. D.N.’ younger sibling who wanted to be removed from her mother’s home.
Of that evidence, only two of the affidavits of Sacha Wagner, and the affidavits of Amy Peyton and Tracy Hoskins, were tendered in response to Ms. D.N.’ motion to stay Justice MacKenzie’s Order.
[23] The affidavits that the Society relied on before Justice MacKenzie and that it also tendered in response to Ms. D.N.’ motion to stay contain the following hearsay:
(a) The Child Protection Worker, Sacha Wagner, in affidavits sworn February 28 and April 5, 2012, refers to the following hearsay:
(i) Information she received from Ms. D.N.’ mother, P.G., including innuendo suggesting that Ms. D.N. may have stolen from her; no affidavit from Ms. P.G. was tendered.
(ii) Information she received from her colleague, Jennifer Blackmore, an After Hours Worker, concerning information Ms. Blackmore received from Cst. Pete Daniels of the Owen Sound Police Service concerning the incident on October 7, 2011, that resulted in Ms. D.N.’ arrest for public intoxication and C.J. being taken into care; no affidavit from either Ms. Blackmore or Cst. Daniels was tendered to substantiate this double-hearsay, notwithstanding that Ms. D.N., when asked, did not confirm the information that Ms. Wagner claims to have received from them.
(iii) Information she received from C.J.’s foster parents, an article on the Owen Sound Police Services web site, C.J.’s former day care provider, and a co-accused, concerning unproven criminal charges against Ms. D.N.; while Ms. D.N. disputed some of the information and stated that she intends to plead not guilty to the charges, no affidavits were tendered from the Owen Sound Police, or from the other sources, to substantiate the hearsay attributed to them.
(iv) Information she received from Ms. D.N.’ room-mate, Linda Heft, on November 22 and 29, 2011, concerning Ms. D.N.’ conduct; no affidavit from Ms. Heft was tendered.
(v) Information she received from Patti Payton of CHOICES Drug and Alcohol Counseling concerning appointments Ms. D.N. had reportedly made and not attended; no affidavit from Ms. Payton was tendered.
(b) Both Ms. Wagner and another Child Protection Worker, Lindsay Wilson, refer to information they received from C.J.’s foster parents concerning their access to C.J., medical and dental care they obtained for him, and their plans for his future care. No affidavit from the foster parents was tendered.
(c) The Society’s Family Resource Worker, Tracy Hoskins, refers to information she had obtained from her review of the Society’s file regarding Ms. D.N.’ attendance. She does not attach the records nor identify their authors and no affidavit from the authors was tendered.
[24] The hearsay evidence that the Society tendered in support of its motion for summary judgment may well have influenced the outcome. The admission of this evidence, by itself, raises a serious issue for the court’s consideration at the hearing of Ms. D.N.’ appeal from Justice MacKenzie’s judgment.
(3) Fresh evidence to be tendered by Ms. D.N.
[25] Ms. D.N. states that she will seek to introduce fresh evidence at the hearing of her appeal concerning her current residence and employment and her attendance at counseling programs since the hearing before Justice MacKenzie. This evidence is intended to address the Society’s concerns about her past unstable residence, alcohol use, and irregular attendance at access visits.
[26] Under section 134(4)(b) of the Courts of Justice Act,[^11] the court hearing an appeal may receive further evidence by affidavit. Because the evidence Ms. D.N. proposes to tender relates to events since the hearing of the motion for summary judgment, it clearly could not have been adduced at the hearing. The evidence will likely be credible, as the Society did not, at the hearing of Ms. D.N.’ motion to stay the judgment, dispute the facts that Ms. D.N. proposes to prove. The facts are relevant to the issues under appeal, and could be decisive as to what disposition would be in C.J.’s best interests.
[27] Such evidence, being credible, relevant, and not capable of having been adduced at the hearing before Justice MacKenzie, will likely meet the test for fresh evidence. As the Divisional Court noted in Children's Aid Society of the Niagara Region v. J.C.,[^12] in 2007, it is important, in child welfare cases, for the court to have current and accurate information about the child. I therefore conclude that the evidence may well be admitted at the hearing of Ms. D.N.’ appeal, in keeping with such authorities as Sengmueller v. Sengmueller,[^13] Catholic Children’s Aid Society of Metropolitan Toronto v. C.M.,[^14] and Children’s Aid Society of Peel v. W. (M.J.).[^15] This evidence also raises a serious issue for appeal, as to whether there has been a material change in circumstances since the hearing of the motion for summary judgment that gives rise to a genuine issue for trial.
[28] Justice MacKenzie made his determination as to whether there was a genuine issue for trial in the context of the primary purpose of the Child and Family Services Act,[^16] which is to “promote the best interests, protection and wellbeing of children.” As Hambly J. noted in C.A.S. v. L.(V.), sections 57 and 70 of the Act impose narrow time lines which constrain court dispositions where there has been a finding that a child is in need of protection as defined by section 37(2). In affirming this decision, the Court of Appeal emphasized that “Time is an important consideration in [the Act] and a child is not to be kept in limbo while a parent having difficulties attempts to straighten out her life.”[^17] That said, a child’s interest in preserving his relationship with a biological parent who has demonstrated her resolve and ability to care for the child should not be overlooked. The parent’s right to have her appeal determined fairly should also not be foreclosed by prematurely depriving her of access to her child while her appeal is pending.
[29] A child’s need for permanency planning within a timeframe sensitive to the child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion, discernable from the parent’s evidence, that she faces some better prospects than what existed at the time of the society’s removal of the child from her care, and that she has developed some new ability as a parent.[^18] As Justice Alex Pazaratz stated in Children’s Aid Society of the Niagara Region v. S.C.,[^19] in 2008: “No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.”[^20] I will address the question of whether there is such a realistic possibility below, in my discussion of C.J.’s best interests.
e) C.J.’s best interests
[30] The Court must consider whether it is in C.J.’s best interests that his mother’s access to him be resumed pending the hearing of her appeal. The Court considers the interests of others, including those of Ms. D.N., of his foster parents, and of the Society, only to the extent that they coincide with or impact on C.J.’s interests.
[31] The Society relied chiefly on the following evidence to argue that it would not be in C.J.’s best interests that his mother’s access to him be resumed:
- Sacha Wagner, a Child Protection Worker employed by the Society, states in her affidavit sworn August 30, 2012, that:
(a) C.J. has spent a cumulative period of 322 days in care.
(b) C.J. was apprehended on October 7, 2011, after the Owen Sound Police arrested Ms. D.N. for being intoxicated in a public place and it was found that Ms. D.N. had left C.J. to be cared for by “an inappropriate caregiver.” He remained in temporary care of the Society on a “without prejudice basis” for the next seven months until Justice MacKenzie made the order appealed from on May 15, 2012.
(c) Between October 11, 2011, and May 14, 2012, Ms. D.N. was given 42 opportunities to exercise access to C.J. and missed or cancelled 13 of the visits.
(d) Ms. D.N. acknowledged to Ms. Wagner at a meeting with her on November 8, 2011, that she had a problem with alcohol and had the personality of a follower and gives in to peer pressure.
(e) At an access visit on January 17, 2012, Ms. Wagner observed that after C.J. and Ms. D.N. had coloured together, Ms. D.N. continued to colour on her own after C.J. finished colouring and tried to engage her in playing with other toys.
(f) When C.J. attended at Resource House, where access visits took place, he was aware that it was for the purpose of visiting with his mother and was disappointed when she did not arrive.
(g) On August 18, 2011, Ms. D.N.’ sister, T., who is reported to be not on speaking terms with her sister, reported to a child protection worker that on August 12th Ms. D.N. had left C.J. in the care of her mother and gone out with friends and consumed alcohol.
(h) On November 28, 2011, Linda Heft, whom Ms. Wagner evidently disapproves of as an unsuitable room-mate for Ms. D.N., and from whom Ms. D.N. reported that she was parting company because it was “like living with a grandmother,” reported to Ms. Wagner that she had asked Ms. D.N. to move out because she would leave for several nights in a row without informing Ms. Heft where she was going.
- Sacha Wagner in an earlier affidavit sworn February 28, 2012, stated that:
(a) On June 1, 2011, Ms. D.N. informed her that:
(i) She had been kicked out of school;
(ii) She was not passing a parenting class due to poor attendance;
(iii) C.J. was not in daycare, contrary to the Society’s expectation that he would remain in daycare; and
(iv) C.J. was in pain because of a bad sunburn.
(b) On June 28, 2011, Ms. D.N. informed her that:
(i) She had been suspended from work for being late; and
(ii) She had not attended an appointment regarding a daycare subsidy and was therefore now responsible for paying the full fees.
(c) On the same date, Ms. Wagner observed red marks or scratches on C.J.’s face and left knee. This was explained on August 16, 2011, when Ms. D.N. informed Ms. Wagner that she had taken C.J. to a hospital where he had been diagnosed as having Impetigo and was prescribed medication.
(d) On September 22, 2011, Ms. Wagner attended at Ms. D.N.’ new apartment and observed that a living room window that was open with no screen could be reached by C.J. When she pointed this out, Ms. D.N. closed the window and said that she would keep it closed.
- Lindsay Wilson, another child protection worker employed by the Society, states in her affidavit sworn August 29, 2012, in addition to the concerns noted above, expressed by Ms. Wagner, that she also observed Ms. D.N. continue to colour at an access visit on November 29, 2011, after C.J. had finished and tried to engage her with other toys.
[32] Additionally, the Society seeks to rely on the following:
(a) Unproven criminal charges against Ms. D.N., arising from allegations that she texted an invitation to a person to attend at a location where the person was beaten and robbed. Ms. D.N. asserts that she is not guilty of the charges, is defending herself on them, and her account is supported by at least one of the co-accused.
(b) Suspicions voiced by Ms. D.N.’ mother, apparently unsupported by evidence, that her daughter may have stolen from her.
(c) Allegations that Ms. D.N. had sexual relations with her boyfriend in a stairwell while intoxicated on October 7, 2011, in the incident that led to her arrest and C.J. being taken into care.
[33] Ms. D.N. is not alleged to have a youth court record or a criminal record. She is entitled to the presumption of innocence in relation to the unproven charges against her.
[34] The evidence of the Society also discloses the following evidence that supports the view that Ms. D.N. was a competent mother for C.J.:
(a) Of the 42 appointments she was offered to exercise access, Ms. D.N. attended 29 of them. According to the Tracey Hoskins’ affidavit, of the 13 visits that Ms. D.N. missed:
i. On three of the occasions, she had called and explained that she was ill and did not want to risk spreading her illness to C.J.
ii. On one occasion, C.J. was sick and unable to attend.
iii. On at least six occasions, Ms. D.N. had attended and was told that the visit had been cancelled because she had failed to telephone at least one hour in advance to confirm that she would be attending.
iv. On February 8, 2012, an administrative error by the Society was to blame.
b. On October 25, 2011, Lindsay Wilson was informed by a nurse practitioner, after examining C.J., that she had no concerns about C.J.’s speech development, nutrition, or oral health.
c. On January 24, 2012, Ms. Wilson assessed C.J. using the Nipissing Developmental Scale and found that he was able to do most of the tasks on the scale.
d. Ms. D.N. consulted community services, including health care professionals, where appropriate, and was receptive to directions given to her by these professionals and by child protection workers. For example:
i. On July 22, 2011, she asked for support from the Society’s Family Resource Worker with budgeting and dealing with C.J.’s temper tantrums.
ii. On August 16, 2011, she reported that she had taken C.J. to the hospital regarding red marks on his skin, where medical staff had diagnosed them as Impetigo and prescribed medication for him.
iii. On July 22, 2011, she reported that she had attended a meeting with day care subsidy providers and that she now had C.J.’s day care fully covered.
iv. On September 22, 2011, when the danger of the open window in her apartment was pointed out to her, she responded by immediately closing the window and saying that she would keep it closed.
v. On September 22, 2011, when Ms. Wagner informed her that the Society would have concerns if she left C.J. in the care of Jennifer Coke, a woman she had met at the Women’s Centre, she replied that she was fine with this.
vi. On January 17, 2012, Ms. D.N. informed Ms. Wagner that she had attended an appointment with an alcohol counsellor at Choices, a local addiction counselling service.
e. On August 25, 2011, Ms. D.N., at the Society’s request, voluntarily provided a hair sample for drug analysis, and on September 29, 2011, the Society received the results, which were negative for cocaine, opioids, amphetamines, cannabinoids, and in fact, alcohol consumption.
f. The descriptions given in the Society’s evidence of Ms. D.N.’ visits with C.J. disclose, almost without exception, interactions that are positive, affectionate and constructive. These interactions demonstrate that, apart from her irregular attendances, Ms. D.N. is a capable mother. In particular,
i. On December 15, 2011, Ms. Wagner describes Ms. D.N. as being encouraging and supportive of C.J. and as engaging in play with him. No concerns were observed.
ii. On January 26, 2012 (after C.J. had been in temporary care for almost four months), an administrative support worker observed that when Ms. D.N. arrived at the Resource House and C.J. looked down and was unresponsive, she got down on her knees to greet him.
iii. On November 3, 2011, Ms. Wagner observed that Ms. D.N. interacted positively with C.J. during her visit, that C.J. was heard to call her “mom” and that she took him to the toilet when he started to play with his diaper. She also gave C.J. several hugs and kisses during the visit and told him that she loved him.
iv. On December 15, 2011, Ms. Wagner observed that Ms. D.N. was encouraging and supportive of C.J. and engaged in play with him. No concerns were observed.
v. On December 20, 2011, Ms. Wagner observed Ms. D.N. constantly talking to C.J. while colouring with him and interacting with him. No concerns were observed.
vi. On January 17, 2012, Ms. D.N. stated that if C.J. were adopted by his foster parents she would seek openness.
vii. On February 2, 2012, Ms. D.N., as well as her sisters and brothers and her mother, visited with C.J.. They played with a train set, did colouring and crafts, and made a puzzle. During the visit, C.J. got up and ran to the bathroom with Ms. D.N.’ 12 year old sister. Ms. D.N. followed them and later returned with C.J., praising him for using the “potty” and got out a sticker book and rewarded him with a special sticker, after which C.J. was observed to be happy and smiling as he shared his stickers with everyone.
viii. Later during the same visit, Ms. D.N. was observed to discipline C.J. appropriately. When he tried to get into a drawer, she told him “no” and when he began to throw a tantrum, she told him that he had to listen or he was going to get a “time out.” Although she did not give him a time out, she waited for him to calm down and then continued to play with him. The visit ended with Ms. D.N. giving C.J. hugs and kisses and saying good-bye to him.
ix. Ms. Wagner reported that at the access review meeting on February 15, 2012, she had advised Ms. D.N. of the strengths she had observed during her visits with C.J. She mentioned that:
(a) C.J. was always happy to see her and ran to her and hugged her at the beginning of every visit.
(b) She had been consistent with potty training and always asked and reminded C.J. about going to the bathroom.
(c) Good-byes had become more positive. During the first couple of visits, C.J. had not wanted to leave and Ms. D.N. had done a good job of telling him a few minutes before the visit ended that it would soon be time to get ready, and of doing things like putting her coat on and encouraging him to do the same.
(d) She was very affectionate with C.J. and was always giving him hugs and kisses and telling him that she loved him. Ms. Wagner advised Ms. D.N. that her concerns in relation to access were “mostly in relation to attendance”.
x. Lindsay Wilson stated in her affidavit dated February 27, 2012, that during Ms. D.N.’ visits with C.J., she had read to C.J. at each visit, taken him to the toilet at each visit, and been affectionate both physically and in words. She had also observed strengths in Ms. D.N.’ supervision and consequences. In particular, on November 10, 2011, when C.J. had tried to colour in the reading book, she had warned him not to, or she would take the book away. When he had continued, she followed through by taking the book away. When C.J. lay on the floor crying, she got down on the floor and explained to him that he could not colour in a reading book, whereupon he got up and retrieved the colouring book and Ms. D.N. returned his colours to him. During the same visit, C.J. attempted to stand on a toy and Ms. D.N. lifted him off the toy and told him he was not allowed to stand on it and helped him reach and use the item he was trying to reach himself.
f) C.J.’s “best interests,” with reference to the factors to be considered
(i) C.J.’s physical, mental, and emotional needs, and the appropriate care to meet those needs
[35] Ms. D.N. has met C.J.’s physical and mental needs, as appears from the information from the nurse practitioner who examined him, who reported that she had no concerns about his speech development, nutrition or oral health, and the evidence of Ms. Wilson, who found that he was able to do most of the tasks on the Nipissing Developmental Scale. Additionally, when C.J. developed a skin rash, Ms. D.N. took him to the hospital and secured a diagnosis and appropriate treatment.
[36] Ms. D.N. has also met C.J.’s emotional needs, as appears from the reports of her access visits with him, where she was described as being unfailingly affectionate, both in her words and physical interactions, and encouraging and supportive. She was also described to have attended consistently and appropriately to his toilet training and to have used appropriate discipline when he mis-behaved.
(ii) The importance for C.J.’s development of a positive relationship with his mother and a secure place as a member of a family;
(iii) C.J.’s relationships by blood
[37] On February 2, 2012, Ms. D.N., as well as her sisters and brothers and her mother, visited with C.J.Ms. D.N. proposes to tender fresh evidence at the hearing of her appeal to prove that she has been residing with her mother since June 2012 and has the support of her family.
(iv) The risk that C.J. may suffer harm through being removed from, kept away from, returned to, or allowed to remain in the care of his mother
[38] I have referred to the observations that C.J.’s foster parents have reported concerning the anger he has displayed toward his mother’s photograph since being separated from her. The Society’s counsel acknowledged at the hearing of the motion that this likely reflects C.J.’s feeling that he has been abandoned by his mother.
[39] While it is troubling that Ms. D.N. missed appointments for access in the past, her irregular attendance cannot be viewed in isolation. Seen in the context of the efforts she has made to improve her parenting skills, address her shortcomings, and care for C.J., they do not support a finding of general neglect or disinterest in C.J. They also were not limited to appointments for access. Rather, they included meetings to apply for day care subsidies, which were clearly in her financial self-interest. The inconsistency between the missed appointments and the overall pattern of Ms. D.N.’ parenting is more indicative of a discrete cause for the missed appointments. If the cause is immaturity, attention deficit, nutritional deficiency, environmental stresses, or alcohol dependency, it may subside with time or be amenable to a treatment that does not entail the loss of C.J.’s relationship with his mother or the benefits he has derived from it.
[40] The potential harm of not staying the no-access Order pending appeal includes the following:
a) It would extend Ms. D.N.’ absence from C.J.’s life and make their integration more difficult for C.J. in the event that Justice MacKenzie’s Order is set aside on appeal.
b) It would deprive C.J. of the positive and constructive interactions he enjoyed with his mother before the Order was made.
c) It would further strengthen the emotional bonds between C.J. and the foster parents, and the negative impact that separation from them will have on him if Ms. D.N. is successful in her appeal.
d) It would create the risk that C.J. may, in the future, come to believe that he was abandoned by his mother, with the permanent psychological damage that may do to him.
[41] The above noted concerns are supported by the following evidence:
a) C.J. has exhibited behaviour in his foster parents’ care, where, in Lindsay Wilson’s words, “he would be defiant and yell “No” or “Mine” and have a temper tantrum which included throwing toys and yelling. Ms. Wilson states: “These behaviours are not uncommon for a child of C.J.’s age ...” and “The family has reported that since those early days, this behaviour has almost completely been resolved”. The Society did not tender evidence from a child expert, either psychiatrist or psychologist, to support Ms. Wilson’s opinion or an independent assessment of the hearsay based on what the foster parents reported to the Society.
b) Ms. Wilson states that on August 23, 2012, when she arrived at the foster parents home the Adoption Resources Worker was already there and “everyone was sitting around the kitchen table.” The foster mother told Ms. Wilson that C.J. was waiting for her to come but when Ms. Wilson approached C.J. and said “Hi” to him, he acted shy, hid his face with his arm, and peeked out at the foster mother, who was sitting across the table.
c) Already, C.J. is calling the foster parents “Mommy” and “Daddy” and their son “my brother.” This is problematic, having regard to the possibility that the hearing of Ms. D.N.’ appeal and an eventual trial of the issues could result in C.J. being returned to his mother and permanently separated from his foster parents and their son.
d) Most of the information Ms. Wilson relates is what she was told by the foster parents. There is no evidence before me that efforts have been made to assess C.J. separately from them.
e) The foster parents reported that on March 6, 2012, C.J. threw a photograph of his mother onto the floor, so they put the photo away for a few days. A few nights later, C.J. mentioned that his mother had earrings similar to those on the foster mother. His foster mother asked him if he would like to see a photo of his mom, and he agreed. When she got it out, he immediately took it and threw it onto the floor again. His foster parents have since kept the photograph in C.J.’s top dresser drawer where they say “he can have access to it if he wants.” C.J., who just turned three, has not asked to see the photograph since. There is a striking contrast between C.J.’s response to his mother’s photograph now and the Society’s description of C.J. at numerous access visits, running happily to his mother and hugging her when she arrived at the access centre and appearing distressed when she left.
[42] The Society frankly acknowledged at the hearing of the motion that it has become invested in C.J.’s placement with the prospective adoptive parents and it is evident that the Society has become their advocates. It is premature for the Society to assume this role at this stage of the appeal process.
[43] Section 59(2) of the Act creates a presumption against access where a child is a Crown ward.[^21] Once there is an order for Crown wardship, the focus of the Child and Family Services Act shifts to establishing a permanent and stable placement – preferably through adoption. This is clear from the wording of section 140(1) of the Act, which requires the Society to make all reasonable efforts to secure a Crown ward’s adoption. Only Crown wards that are not the subject of an access order are eligible for adoption.[^22] Therefore, there is a presumption against court ordered access for a Crown ward in order to facilitate permanency planning through adoption.[^23]
[44] In the face of an order for Crown wardship, the onus is on the person seeking access to prove on a balance of probabilities that (1) the relationship between her and the child is meaningful to the child, (2) the relationship between the mother and the child is beneficial to the child, and (3) access will not impair the child’s future opportunities for a permanent or stable placement. These three factors must be proven on a balance of probabilities by the person seeking access before the court goes on to consider whether an access order would be in the best interests of the child.[^24]
[45] The last of these requirements, in particular (that is, that the access will not impair the child’s future opportunities for adoption), is virtually impossible for a biological parent to satisfy. If the section were applied while an appeal is pending from the Crown wardship order, there would be a substantial risk of permanently damaging a beneficial relationship between the child and his biological parent and of prejudicing the parent’s position at the hearing of the appeal by depriving the parent of the opportunity to demonstrate that there has been a material change of circumstances since the hearing.
[46] These consequences are especially undesirable in circumstances when Crown wardship is sought at a motion for summary judgment, especially, as in the present case, when it was based on evidence replete with hearsay. Resort to a summary judgment motion should be the rare exception, limited to exceptional cases.[^25] It is a procedural remedy designed, in part, to promote a child’s best interests.[^26] The test is intended to be sufficiently stringent to ensure that a hearing is not dispensed in circumstances where one is needed to establish the material facts necessary for determining the child’s best interests.
CONCLUSION AND ORDER
[47] The evidence on this motion, on its face, supports the second and third grounds that Ms. D.N. has raised in her Notice of Appeal. It raises a serious question as to the evidence the Society relied on at the hearing of its motion for summary judgment. It also raises a serious question as to whether severing Ms. D.N.’ access to C.J. is in his best interests, having regard to her competencies as a parent that the Society’s own evidence discloses, the benefit that C.J. appears to have derived from his relationship with her, and the progress she appears to be making toward developing a meaningful parent-child relationship with him.
[48] The evidence also satisfies me on a balance of probabilities that it is in C.J.’s best interests that Ms. D.N.’ access to him be restored pending the hearing of her appeal. Accordingly, it is ordered that:
The Order of Justice MacKenzie dated May 15, 2012, terminating Ms. D.N.’ access to her son, C.J., is stayed pending the hearing of her appeal.
The Society shall forthwith facilitate counseling for C.J. and Ms. D.N. with Dr. Gerard Kimmons of Toronto/Woodbridge, or a similarly qualified professional if one is agreed upon by Ms. D.N. and the Society by September 30, 2012, with a view to achieving the re-integration of C.J. and Ms. D.N.. To this end:
a) The foster parents shall forthwith obtain a referral from their family doctor or walk-in clinic for themselves and C.J. to Dr. Kimmons or the other professional agreed upon by Ms. D.N. and the Society, and Ms. D.N. shall obtain a similar referral for herself.
b) My reasons shall be provided to the professional consulted.
c) The access shall be open, and either party has leave to obtain a letter from the professional consulted for use at the hearing of Ms. D.N.’ appeal.
d) The Society shall provide to the professional consulted, at their expense, a complete copy of their records for C.J.
e) The foster parents shall make themselves available, as may be requested, to participate in the process.
Ms. D.N. shall have supervised access to her child, C.J., on a reasonable basis, and at a minimum of twice per week, at a time which Ms. D.N. shall appoint, within the times available, at the visitation centre. If the professional consulted recommends a change in the access, either the Society or Ms. D.N. may apply to this Court for directions, which motion may be in the form of a letter from counsel, on notice to the other party, with appropriate attachments, addressed to my judicial secretary, for hearing by teleconference between 9 and 10 a.m. on a date when I am sitting.
There shall be no order as to costs.
Price J.
Released: September 18, 2012
COURT FILE NO.: 12-170
DATE: 2012-09-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bruce Grey Child & Family Services
Respondent
- and –
D.N.
Appellant
REASONS FOR ORDER
Price J.
Released: September 18, 2012
[^1]: Child and Family Services Act, R.S.O. 1990, c. C. 11
[^2]: Children’s Aid Society of the County of Bruce v. D.J., 2011 5493 (ONSC), [2011] O.J. No. 4762, para. 33.
[^3]: C.A.S. Halton Region v. A.(K.L.), 2006 33538 (ON CA), [2006] O.J. No. 3958 (C.A.) at para. 19.
[^4]: C.A.S. v. L.(V.), 2006 32610 (ON SC), 2006 CarswellOnt 5729 (S.C.J.), aff’d 2007 CarswellOnt 908 (C.A.).
[^5]: B(F) v. G.(S.), (2001), 2001 28231 (ON SC), 16 R.F.L. (5th) 237 (Ont. S.C.J.) at paras. 23, 54.
[^6]: Dawson v. Rexcraft Storage and Warehouse Inc., 1998 4831 (ON CA), (1998), 164 D.L.R. (4th) 257 at 267-268.
[^7]: Irving Ungerman Ltd. v. Galanis, (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545 at 550-51.
[^8]: Hi-Tech Group Inc. v. Sears Canada Inc., 2001 24049 (ON CA), (2001), 52 O.R. (3d) 97, 11 B.L.R. (3d) 197, 4 C.P.C. (5th) 35, [2001] O.J. No. 33, 2001 CarswellOnt 9 (Ont. C.A.), at paras. 30 and 31.
[^9]: Children’s Aid Society of Hamilton v. M.N., 2007 13503, 2007 13503, 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 CarswellOnt 2453 (Ont. Fam. Ct.), per Justice Donald J. Gordon.
[^10]: Children’s Aid Society of Hamilton v. M.N., 2007 13503, 2007 13503, 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 CarswellOnt 2453 (Ont. Fam. Ct.), per Justice Donald J. Gordon, at paras. 28 and 29.
[^11]: Courts of Justice Act, R.S.O. 1990, c. C. 43
[^12]: Children's Aid Society of the Niagara Region v. J.C., 2007 8919 (ON SCDC), at para. 3
[^13]: Sengmueller v. Sengmueller, 1994 8711 (ON CA), (1994), 17 O.R. (3d) 208 (C.A.)
[^14]: Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 83 (SCC), [1994] 2 S.C.R. 165
[^15]: Children’s Aid Society of Peel v. W. (M.J.) 1995 593 (ON CA), (1995), 23 O.R. (3d) 174 (C.A.)
[^16]: Child and Family Services Act, R.S.O. 1990, c. C 11.
[^17]: C.A.S. Halton Region v. A.(K.L.), 2007 CarswellOnt 908 (C.A.) at para. 14.
[^18]: Children’s Aid Society of Toronto v. R.H., 2000 3158 (ON CJ), 2000 3158, 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 CarswellOnt 6170 (Ont. C.J.), per Justice Heather L. Katarynych.
[^19]: Children’s Aid Society of the Niagara Region v. S.C., 2008 52309 (ON SC), 2008 52309, 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5929 (Sup. Ct.), at para. 43.
[^20]: See also: Native Child and Family Services of Toronto v. D.C., 2010 1038 (ON SC), 2010 ONSC 1038, [2010] W.D.F.L. 2639, [2010] O.J. No. 620, 2010 CarswellOnt 829 (Ont. S.C.).
[^21]: New Brunswick (Minister of Health and Community Services) v. L.M., 1998 800 (SCC), [1998] 2 S.C.R. 534, 41 R.F.L. (4th) 339; 1998 CarswellNat 1755 at para. 44; Children’s Aid Society of Niagara Region v. M.J., 2004 2667 (ON SC), [2004] O.J. No. 2872, 4 R.F.L. (6th) 245 at para. 44 (S.C.J.); Windsor-Essex Children’s Aid Society v. E.S., [2004] O.J. No. 5824 (O.C.J.) at para. 21; Children’s Aid Society of Ottawa v. D.K., 2002 47078 (ON SC), [2002] O.J. No. 2483 (S.C.J.)).
[^22]: Section 140(2)(a)
[^23]: Children’s Aid Society of Ottawa v. D.K., 2002 47078 (ON SC), [2002] O.J. No. 2483 (S.C.J.), para. 24-25
[^24]: Children’s Aid Society of Owen Sound and County of Grey v. T.T., 2005 24909 (ON SC), [2005] O.J. No. 1875 (S.C.J.) at para. 20; Children’s Aid Society of Ottawa-Carleton v. T.C., 2002 46172 (ON SC), [2002] O.J. No. 3711 at para. 7
[^25]: Catholic Children’s Aid Society of Metropolitan Toronto v. Lisa Marie O. and Michael P., 1995 6216 (ON CJ), 59 A.C.W.S. (3d) 916, 7 W.D.C.P. (2d) 49, [1996] W.D.F.L. 650, 9 O.F.L.R. 165, [1995] O.J. No. 3971, 1995 CarswellOnt 4393 (Ont. Prov. Div.), per Provincial Judge Joseph C.M. James, as he then was, aff’d on appeal to the Ontario Court (General Division) by Chapnik J. at Catholic Children’s Aid Society of Metropolitan Toronto v. Lisa Marie O. and Michael P., 1996 7271 (ON SC), 139 D.L.R. (4th) 534, [1996] O.J. No. 3018, 12 O.T.C. 161, 1996 CarswellOnt 3160 (Ont. Gen. Div.), and affirmed on further appeal to the Ontario Court of Appeal at Catholic Children’s Aid Society of Metropolitan Toronto v. Lisa Marie O. and Michael P., 1997 4445 (ON CA), 102 O.A.C. 232, 149 D.L.R. (4th) 464, 30 R.F.L. (4th) 16, [1997] O.J. No. 3041, 1997 CarswellOnt 2742 (Ont. C.A.)
[^26]: Children’s Aid Society of Waterloo Region v. C.A.D. and Z.S., 2011 ONCA 684, 2011 684 (ONCA), [2011] O.J. No. 4891, 2011 CarswellOnt 11963 (Ont. C.A.), at paragraph [5].