SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 849-10 (Perth)
DATE: 2012/11/2

RE: The Children’s Aid Society of Lanark, Leeds and Grenville, Applicant

AND

C.C., D.M., and M.J.C., Respondents

BEFORE: Mr. Justice Timothy Minnema

COUNSEL:
Nicola Edmundson, for the Applicant Society

Vasu Naik, agent for Wendy D. Rogers, for the Respondent, C.C.

Loreen Irvine, for the Respondent, D.M.

Yvonne Lee, for the Office of the Children’s Lawyer

HEARD: October 17, 2012 (in Perth)

ENDORSEMENT

[ 1 ] There are two motions before the court. First is the father’s seeking summary judgment on his claim for custody of the two children F.M., born […], 1996, age 16, and T.M., born […], 2000, age 11. The second motion is by the Society (“CAS”) to withdraw its application and terminate the existing interim orders.

Issues

[ 2 ] Summary judgment motions are governed by Rule 16 of the Family Court Rules . The main issues to be decided then are:

a) Is there a genuine issue requiring a trial that the children are in need of protection?

b) Is there a genuine issue requiring a trial regarding custody and access of F.M.?

c) Is there a genuine issue requiring a trial regarding custody and access of T.M.?

d) Should the Society be permitted to withdraw its application regarding each child?

Facts

[ 3 ] The Society first became involved with the family in 2004. There were a number of concerns, including the mental health of both parents, but the main issue since then has been ongoing parental conflict. In late 2010 the Society brought a protection application, concerned about a risk of emotional harm to F.M. and T.M.

[ 4 ] T.M. has resided with the father and his partner since August of 2009. As communicated through her counsel she wishes to remain there. The mother’s access visits have gone through a number of transitions – suspended, supervised, restricted, to now unsupervised. Currently the visits are positive. The child is stable in her placement with her father, although according to the mother she may change her mind and want to live with her. There are concerns by the other parties that the mother has tried to influence T.M.’s position in the past.

[ 5 ] F.M. resided with the father from August 2009 until January of 2011, and since then resided for shorter periods first with the mother, then in the interim care and custody of the Society, then with the father, and now since August she has been residing with her mother. F.M. at age 16 has for some time been expressing her wish to make her own decisions about residence, and has acted accordingly.

[ 6 ] It is clear from all parties that the mother and father have a conflictual relationship. Police involvement has been required in the past and there is currently a restraining order against the mother. The mother has intensely negative feelings toward the father’s partner M.J.C. She is not afraid of communicating her dislike of M.J.C. to the children. M.J.C. is a positive influence in the care of the children, T.M. in particular.

[ 7 ] While there are many facts that are in dispute, the question for the Court is whether they create a genuine issue for trial.

Is There a Genuine Issue Requiring a Trial that the Children are in Need of Protection?

[ 8 ] Before the Court can entertain the father’s request for custody pursuant to section 57.1 of the Child and Family Services Act it needs to make a protection finding.

[ 9 ] I find that there is no genuine issue for trial regarding the protection finding. On the evidence of each parent against the other and on the Society’s evidence, there has been a clear risk of emotional harm to these children in their proximity to the conflict between the parents. There are examples in the materials of the children crying and reporting fears about the conflict between their parents, and being anxious about where they would reside. Indeed, only the mother was reluctant to agree to the protection finding at this hearing, even though in her Answer she proposed a supervision order as a possible resolution which presupposes a finding. She was prepared to admit that the situation between the adults is high conflict at times.

[ 10 ] The conflict has receded recently with the current protection orders in place. In Children’s Aid Society of Hamilton-Wentworth v. K.R. , [2001] O.J. No. 5754 (S.C.J.) , Czutrin J. noted at para. 50:

I have come to the conclusion that the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date.

[ 11 ] Notwithstanding the somewhat calmer situation on the ground today, looking at the conflict over the duration of the Society’s involvement t here is no genuine issue for trial regarding the 37(2)(g) protection finding.

Is There a Genuine Issue Requiring a Trial Regarding Custody and Access of F.M.?

[ 12 ] As noted, F.M. is currently making her own residence decisions and lives with her mother. There is a genuine issue regarding the granting of custody of F.M. to the father.

Is There a Genuine Issue Requiring a Trial Regarding Custody and Access of T.M.?

[ 13 ] I find that there is no genuine issue for trial regarding a Section 57.1 custody order for T.M.

[ 14 ] A recent summary of the law regarding summary judgment is found in Catholic Children’s Aid Society of Hamilton v. M.A ., 2012 ONSC 267 , [2012] O.J. No. 223 (Ont. S.C.). The following passage at para. 34 is helpful in this case:

The issue on a summary judgment motion brought pursuant to Rule 16 is whether it is possible to conclude based on the materials contained in the Motion Record that the Respondents have no realistic chance of success.

[ 15 ] T.M. has been stable in the custody of her father for the past three years. She is doing well in school. The Society does not supervise the father’s access; it only plays an access mediation role which is not its child protection mandate. The facts in dispute – for the most part surrounding who caused the conflict – are evidence in themselves that there was significant conflict. Even if the mother could prove at trial that the father was substantially at fault, in my view the outcome would not change. With the Office of the Children’s Lawyer (“OCL”) representing the child and also supporting the father’s request, I can see no realistic chance of success for the mother at trial. As such I do not see a genuine issue requiring a trial. If a trial were held today, there is no serious doubt that the final order would be the status quo. The present arrangement is in T.M.’s best interests, and there is no realistic viable competing plan. Further, I find no merit in the mother’s position that the triable issue that requires a full hearing is the possibility that T.M. is changing or may change her views regarding where she wants to live. Possible future changes do not translate into a triable issue now.

[ 16 ] As to the access, the focus of the hearing was on custody, the expectation being that the access order would follow the custody order. The access order sought is essentially the status quo . There was no request for other access, such as the Christmas holidays, that could be dealt with by way of summary judgment. The facts concerning access are minimal, namely that there is a status quo supported by the CAS and OCL, it is going well, and the child is content. The mother had a positive obligation to put her best foot forward by providing specific facts to make it an issue. In her materials she is concerned about access being denied her but that is not what is being sought. I can only deal with what is before me, and there is no genuine issue requiring a trial with respect to access.

[ 17 ] Although I hope that the parties can agree to further access going forward, the history of this case suggests that the litigation is likely not at its end. However, t he hope of the institutional parties and shared by the Court is that with this order the litigation and conflict will subside to the children’s benefit.

Should the Society be Permitted to Withdraw its Application Regarding F.M.?

[ 18 ] With summary judgment denied regarding F.M., the Society seeks to withdraw its involvement. It notes improvements by the parties, and that the children have been acquiring the knowledge and tools to better handle their parents’ conflict. There was little objection to the withdrawal, the parties reluctantly accepting the reality that F.M. will be making her own decisions regarding which parent she lives with and how access is exercised.

[ 19 ] The OCL presented a unique argument touched on above that the court process here contributes to the conflict and the harm to the children. Having a process that continually brings the parties together is a trigger, and canvassing the children’s views and preferences each time forces them into the line of fire between the parents. As mentioned, while it is unknown at this point and perhaps even doubtful that the conflict will end with this order, I agree that the continued litigation does not appear to be helping. As the termination the Society seeks appears to be uncontested and in F.M.’s best interests, I grant that request.

[ 20 ] The parties are aware that with this withdrawal the May 23, 2008 custody order governs with respect to F.M. Given that she is now making her own decisions, no one had difficulties with that result.

Other Issues

[ 21 ] The father has sought an order prohibiting the mother from moving out of Carleton Place with either child. The only child living with her is F.M. Given the child’s growing independence, even if I could I am not prepared to make such an order.

[ 22 ] The father has asked that I order that the parties communicate via a communication book. Although she has not used it to date, the mother has indicated that she is not opposed although she wants to be able to ‘text’ the father regarding emergencies. I am not making an order, but encourage the parties to consider the communication book as a reasonable avenue for them to communicate about the children.

Decision

[ 23 ] For the reasons given,

a) The children are found to be in need of protection pursuant to subsection 37(2)(g) of the Child and Family Services Act .

b) Summary judgment is granted placing T.M. in the custody of the father pursuant to section 57.1 of the Child and Family Services Act with access to the mother every second weekend from Friday after school until Sunday at 7 p.m. and every Wednesday evening from after school to 8 p.m. Where the mother works overnights on her weekend access, T.M. shall return to the father’s home overnight to sleep and shall return to the mother’s during daytime hours.

c) The request for summary judgment regarding custody of F.M. and to restrict the mother’s ability to move from Carleton place with that child is dismissed.

d) The Society’s protection application is withdrawn and the interim orders under it are terminated.

Costs

[ 24 ] If the parties cannot agree on costs within 15 days I am prepared to receive their written submissions, two pages maximum, within 30 days.

Mr. Justice Timothy Minnema

Released: November 2, 2012