ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW
COURT FILE NO.: FS-12-018018
DATE: 20121121
BETWEEN:
CHILDREN’S AID SOCIETY OF TORONTO, Respondent on the Appeal – and – M.M., (the father), Appellant – and – N.S. (the mother), Respondent on the Appeal
Michelle Cheung , Counsel for the Respondent, Children’s Aid Society of Toronto
Ian Richard Mang , Counsel for the Appellant Unrepresented and did not appear
HEARD: OCTOBER 22, 2012
ENDORSEMENT: GREER J. :
[ 1 ] This is an Appeal from the Order of Mr. Justice Brownstone of the Ontario Court of Justice dated April 5, 2012. On that date, the Judge made an Order, on a Summary Judgment Motion, that two children namely, M.S.1, born […], 2005, now 7 years of age and M.S.2, born […], 2007, now 5 years of age, become crown wards without access for the purpose of adoption. I shall refer to them individually as M.S.1 and M.S.2, or refer to them collectively as “the children”.
[ 2 ] The Children’s Aid Society of Toronto (“CAS”) commenced a protection application in February of 2010 respecting these children, who were then living with their father, the Appellant, M.M. (“the Father”) who is 42 years of age. The CAS says that Mother, who is 30 years of age, has a history of mental health problem, which preclude her from acting as a caregiver to the children. At the time the Appeal was heard, the whereabouts of the Mother was unknown.
Background facts before the Judge
[ 3 ] The family has a long history with the CAS, it having apprehended M.S.1 first in August 6, 2005 when she was 1 week old given the Mother’s volatile behaviour. She was charged with assault with a Weapon and Threatening Bodily Harm against the Father. He was then charged and convicted of Assault and Threatening Bodily Harm against her. She had previously been diagnosed as paranoid schizophrenic and had been hospitalized under the authority of the Mental Health Act .
[ 4 ] After M.S.1 was apprehended, she remained in care for one year, during which time the Father was incarcerated for assaulting the Mother. The CAS apprehended M.S.2 at birth and she went immediately into care.
[ 5 ] There had been two Protection Applications by the CAS, one for M.S.1 in September 21, 2005 and one for M.S.2 on April 2, 2007. The Father participated in both litigations and presented a plan for the care of both children. Eventually the children were put in his care but under terms of CAS supervision Orders.
[ 6 ] The CAS apprehended the children on January 31, 2010, after they had been with the Father for nearly two years. In the interim the CAS says that it had concerns about the Father’s alcohol and marijuana use. The police found “a marijuana roach and seeds” in his apartment. After that date, the Father was charged with impaired driving, failed to provide a breath sample, and breached a condition that precluded consumption of alcohol.
[ 7 ] The CAS says that while at times the Father has made some positive gains towards presenting an adequate plan for the children, there have been:
…serious lapses of judgment and repeated negative behaviours, which impact his ability to provide safe parenting to his children, have remained a consistent pattern for Mr. M.M. over time.
For example, the Father was to submit to a hair strand test for alcohol consumption. He failed to appear and instead had his head shaved of hair. Another such example was him allowing the Mother into his apartment on November 27, 2011 and then leaving her alone with the children. She promptly absconded with the children. There were more assault charges against him for violence to the Mother, and the children were returned to the foster home. The Father’s unsupervised access with the children was then revoked.
The Standard of Review on a Summary Judgment Motion
[ 8 ] The CAS says the standard of appellate review of a motion for summary judgment in family law matters is set out in Catholic Children’s Aid Society of Toronto v. Y.K. , [2007] O.J. No. 3080 (S.C.) , aff’d 2008 ONCA 27 , [2008] O.J. No. 137, (Ont. S.C.J.) as made under the Family Law Rules, O. Reg. 114/99 , s.16 , as set out in SN-D v. Children’s Aid Society of Ottawa , 2012 ONSC 1888 (Div. Ct.) at para. 14 as follows:
The standard of review on an appeal of a summary judgment order is correctness, as most issues arising out of a summary judgment hearing are errors in law. Where an error in fact is alleged, the standard of review is less deferential than palpable and overriding error but more deferential than correctness as the judge’s decision is entitled to due respect.
Both counsel agree that the test is that of correctness on errors of law and that the Judge’s decision involves the exercise of considerable discretion by the Judge in the first instance where facts are concerned.
[ 9 ] The Judge assesses the facts before him or her on a protection hearing. The Judge must decide what is in the best interests of the children based on those facts. As was said by Mr. Justice Lane in R.A. v. Jewish Family and Child Service , [2001] O.J. No. 47 (S.C.J.) in para. 17 :
…what is in the child’s best interests is a matter for findings of fact and if there are disputed facts relevant to that determination, a trial will follow.
The Father’s Appeal
[ 10 ] The Father’s sole ground for his appeal is that the learned Motions Judge misapplied the test for summary judgment. He thinks that material before the Judge and his application of it gives rise to a triable issue. He points to the fact that the Father and the CAS, even after the last apprehension of the children, were continuing to work towards a unification of the family. Supervised weekends visits were set up between the Father and the children.
The Decision of Mr. Justice Brownstone
[ 11 ] An issue arose about the length of time these children were in foster care, which went beyond the statutory norm. I am told that the general rule of the CAS is that children should not be in care for more than a year, which can be extended to up to 6 more months. When the Application was brought on for Summary Judgment before Mr. Justice Brownstone, (“the Judge”), in April 2012, M.S.1 had been in foster care for 3 years 8 months and M.S.2 for 4 years 3 months. It was therefore imperative that the case be moved forward.
[ 12 ] Summary Judgment Motions on family law matters are governed by Rule 16 of the Family Law Rules , O. Ref. 114/99. Subrule 16(6) states that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[ 13 ] The Judge was well aware of the background and history of this matter, as it was set out by the CAS in the Affidavits it provided in support of the Motion.
[ 14 ] The matter was heard on April 5, 2012, and the Judge delivered oral reasons. He granted Summary Judgment. In the transcript of the Motion proceedings and the oral reasons of the Judge, he finds, on p.41-2 of the Transcript, that the Father “…has no housing. He is unemployed and on social assistance.” He also notes that the Father was facing a number of criminal charges. On p.43, the Judge says that the Father has an “unstable lifestyle, but also of a potential inability or unwillingness to comply with court orders and follow the law and submit to authority as required.” On p.47 he says, “This is a man with colossal bad judgment and it comes through not only in the Society’s affidavit, but his own. These children deserve much, much more.”
[ 15 ] The Judge expressed the test himself that applies on a Summary Judgment Motion. On p.48, he says:
We are talking summary judgment, the threshold is high, the Society has a high burden and although the test has been articulated in many different ways, I like to articulate it as follows:
If there is any possibility that at the end of a trial these children might not be made Crown wards, if there is any prospect at all, any chance, even a slight chance that at the end of a trial on this evidence the children might not be made Crown wards and might be returned to the father, this motion should be dismissed and you should have a trial. But there is not even the slightest chance. This evidence before me is overwhelming, overwhelming that these children are going to be Crown wards.
The Judge had all of the evidence before him about the Father’s lack of parenting skills, his criminal record, and his background wherein he left his older two children in Zimbabwe when he left there for Canada.
[ 16 ] The Judge noted that Father formed no stable relationship with the Mother, whom he was aware had mental problems. They lost their first child within a week of her birth. He knew that the second child was apprehended at birth. The Father was not selected by the CAS, at the outset, to take on the custody of the children.
[ 17 ] Rob McMullan, a child protection worker with the CAS, swore an affidavit in support of the Summary Judgment Motion. He sets out in that affidavit why the CAS was not supporting placement once again with the Father. On p.30 of the Transcript, the Judge says that facts as they are laid out in Mr. McMullan’s affidavit “…would support the allegation that Mr. M.M. is not a fit parent, they’re, they’re taken out of context.” The Judge then sets out that factors he considers as supporting his position that the Father is not a fit parent.
[ 18 ] The evidence of the Father’s bad judgment is clearly set out in the McMullan affidavit, including the fact that the Father and M.S.1 were at one point living in a shelter and the Father tried to obtain marijuana while he was at the shelter. It was also found out by the CAS that the Father had been arrested on charges of assaulting and sexually assaulting a 14-year old babysitter in the family home. The CAS, therefore on January 31, 2010, apprehended both children following a police report about the assault incident.
[ 19 ] The Judge was aware that the children, themselves told the CAS worker about their Father’s drinking. Even when he was given a chance to see the children under supervision, he missed the second organized visit and was unavailable by phone. The Judge found it to be “overwhelming” against the Father’s position that the children should be put in his care. He even, at p.47 said he was prepared to assume, for purposes of the Motion, that all of the Father’s criminal charges will be dismissed or withdrawn. Even that, said the Judge, did not mean there was a genuine issue for Trial. He said at p.48:
Having regard to all of the fact that are not contested, having regard to the father’s obligation to put his best foot forward in this motion, so that he can show the best evidence possible that he would rely on in a trial, having regard to the length of time the children have been waiting and having regard to the real lack of any contestation in terms of his, judgment, there can be no doubt that a Crown wardship order would result. There result here is a foregone conclusion. I cannot see any prospect….
Conclusion
[ 20 ] The Appeal is dismissed. There is no error of law committed by the Judge. He found on the facts before him that there were no material facts that contradicted the evidence put forward by the CAS. Although there was some evidence that at one point the Father had worked co-operatively with the CAS, he then turned around and again showed a colossal lack of judgment in his last contact with the Mother, leading to the final apprehension of the children.
[ 21 ] As is noted in Children’s Aid Society of Toronto v. R.H. , 2000 3158 (ON CJ) , [2000] O.J. No.5853 (Ont. C.J.) at para. 18 , in child protection matters, 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. This is not a parent who is about to develop new ability in parenting of his children. There are no material facts in dispute.
[ 22 ] As the Judge said in his Reasons, the outcome of this Motion is a foregone conclusion. Crown wardship of the children will take place. See: Children’s Aid Society of Niagara Region v. S.C. and B.M. , 2008 52309 (ON SC) , [2008] O.J. 3969 (S.C.J.) at paras. 42 and 43 .
[ 23 ] Given the nature of this Appeal, there will be no Costs.
Greer J.
Released: November 21, 2012
COURT FILE NO.: FS-12-018018
DATE: 20121121
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY LAW
BETWEEN:
CHILDREN’S AID SOCIETY OF TORONTO, Respondent on the Appeal – and – M.M., (the father), Appellant – and – N.S. (the mother), Respondent on the Appeal
ENDORSEMENT
Greer J.
Released: November 21, 2012