REASONS ON APPEAL

Overview

[ 1 ] The parents of two children appeal an order which made their children Crown wards without access. The order was made by Justice Marvin A. Zuker following a motion for summary judgment brought by the Children’s Aid Society of Toronto.

[ 2 ] The appellant’s submit that there are genuine issues requiring a trial in this child protection matter and that the order granting Crown wardship without access should be set aside.

[ 3 ] The issue on this appeal is whether the motion judge erred in concluding that there were no genuine issues requiring a trial.

Standard of Review

[ 4 ] It is well settled that on pure questions of law, the standard of review on appeal is correctness. On findings of fact, the reviewing court ought not to interfere unless it has been established that there has been a palpable and overriding error. An error is “palpable” if it: 1) is made in the complete absence of evidence; 2) conflicts with accepted evidence; 3) is based on a misapprehension of the evidence; or, 4) fails to consider relevant evidence. An error is “overriding” if it is sufficiently important to vitiate the challenged finding of fact such that the fact cannot safely stand in the face of the error.

[ 5 ] Appellate review of a matter involving whether the test for summary judgment has been satisfied involves the application of legal principles to the facts. It involves, therefore, a mixed question of fact and law.

[ 6 ] On appeal of an order granting summary judgment, the standard of review is less deferential than palpable and overriding error but more deferential than correctness. The standard of deference is whether the motion 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,” Equity Waste Management Of Canada v. Halton Hills (Town) , 1997 2742 (ON CA) , [1997] O.J. No. 3921 (C.A.), para 46 ; see also Catholic Children’s Aid Society of Toronto v. Y.K. , [2007] O.J. No. 3080 , aff’d 2008 ONCA 27 .

The Test on a Motion for Summary Judgment

[ 7 ] On motion for summary judgment, the court’s role is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. The burden is on the moving party to show that there is no genuine issue requiring a trial.

[ 8 ] Not every disputed fact or question of credibility, however, gives rise to a genuine issue for trial. A genuine issue for trial must relate to a material fact. It must be an issue that is substantial and sufficiently important to warrant a viva voce hearing prior to judicial determination.

[ 9 ] The central issue in a summary judgment motion is whether the case has a realistic chance of success at trial. The fundamental question that a judge must ask on a summary judgment motion, whether under rule 20 of the Rules of Civil Procedure or rule 16 of the Family Law Rules , is: “can the full appreciation of the evidence and the issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”

Background

[ 10 ] M.S. and C.O. had two children together: E, born […], 2003 (he is 9) and A born […], 2007 (she is 5).

[ 11 ] In 2007, M.S. and C.O. separated, after which the children lived with C.O..

[ 12 ] In December 2009, C.O. left for Nigeria to care for her dying mother. She left the children with M.S.. Upon her return in January 2010, however, C.O. asked M.S. to continue caring for the children as she was no longer able to do so.

[ 13 ] By March 2010, M.S. also felt unable to care for the children and asked that they be taken into the care of the CAS. The children have been in the care of the CAS since March 23, 2010.

[ 14 ] An agreed statement of facts, signed by M.S. in July 2010, stated:

Ms. C.O. and Mr. M.S. do not feel that they are able to provide for their children at this time. They have asked that the children be brought into the Society’s care as there were no other family members willing or able to care for the children. The Children’s Aid Society of Toronto believes that the children are in need of protection pursuant to the following sections of the Child And Family Services Act :

There is a risk that the children are likely to suffer physical harm, inflicted by the person having charge of the children or caused by that person’s:

failure to care for, provide for, supervise or protect the children adequately [subclause 37(2)(b)(i)]

pattern of neglect in caring for, providing for, supervising or protecting the children [subclause 37(2)(b)(ii)]

the children have been abandoned [clause 37(2)(i)] .

[ 15 ] On July 20, 2010, the children were found to be in need of protection under s. 37 (2) of the Child And Family Services Act and an order was made, on the consent of M.S., by Justice Curtis making the children wards of the CAS. C.O. was represented by duty counsel at the time. She was, however, noted in default on that date.

[ 16 ] From March to June 2010, M.S. had access, including overnights on alternating weekends. M.S. did not exercise any access between July and October 2010. In September 2010, M.S. contacted the CAS and expressed a renewed interest in planning for the children. His access resumed in October 2010. This continued through to March 2011 with overnights at Christmas, March break etc.

[ 17 ] In March 2011, M.S. advised the CAS that he would be away for three weeks. He did not resume access, however, until July 2011.

[ 18 ] C.O. had two access visits in early 2010 before, in April of that year, she cancelled further visits. In June 2010, there were a few telephone access visits. From August to November 2010, C.O. had a limited number of in person access visits. On November 12, 2010, C.O. cancelled all further access. She did not see the children for the next 13 months.

[ 19 ] From December 2011 to March 2012 she had four visits with the children.

[ 20 ] In November 2010 the CAS commenced a status review application seeking an order that the children be made Crown wards with access. Later that month, the CAS amended its status review application to seek an order that the children be made Crown wards without access, relying on the statutory presumption of no access to a Crown ward.

[ 21 ] By July 2011, neither parent had exercised any access for months. In response to this development, the CAS brought a motion for summary judgment seeking a final order making the children wards of the Crown and available for adoption. M.S. opposed the motion. C.O. did not file an answer or plan of care. She supported M.S.’s position on the motion.

[ 22 ] The motion was heard by Justice Waldman on August 29, 2011. In her endorsement of September 13, 2011, Justice Waldman dismissed the CAS motion. She specifically held, however, that the CAS would have the right to bring a further motion for summary judgment if M.S. did not follow through on the commitments he had made to the court in defending the summary judgment motion. She said:

It is the case that father has not demonstrated a sustained commitment to these children. However, he has shown some commitment and some ability to follow through, as demonstrated by his attendance and participation with the children of the number of appointments at the Yorktown Centre. He has also shown some insight into the concerns of the Society and has taken steps, albeit recently, to make his children a priority.

According to father he now understands what he must do in order to regain custody of his children. He has recently taken steps to make them his priority and to put their interests first. He has closed his business, and gone on welfare. It is his evidence that it is his intention to focus on the children and become their primary caregiver.

Having considered all of the evidence, I am satisfied that there is a triable issue as to father’s ability to change his life and priorities and care for these children. The evidence is not sufficiently compelling absent a trial to support the relief sought. The court should evaluate whether father is committed to caring for the children and if he demonstrates this commitment, whether he has the ability to parent them.

The Society, however, should have the right to bring a further motion for summary judgment if father does not follow through. Father must demonstrate a sustained commitment to his children. He must take a parenting course, and work with the Society to develop better parenting skills. He also must change his attitude toward the Society and work cooperatively with the Society workers. His counsel should consider a motion, when appropriate, for increased access.

[ 23 ] Following this motion, M.S. exercised access twice a week at a supervised centre, from September until December 2011. In January 2012, however, M.S. was arrested in Alberta and charged with aiding and abetting a fraud. He was incarcerated and, when released, his bail terms required him to remain in Alberta. He was not, initially, forthright about the reason for his absence. He only admitted to these charges when confronted by the CAS, which had found out about the charges through its own enquiries. On January 31, 2012, M.S. advised the CAS that he was not planning for the children and was withdrawing his plan because he “was not able to do it.” He did not exercise access until March 2012, after his bail terms were changed, when access was briefly re-instated prior to the motion before Justice Zuker.

The Issue

[ 24 ] The substantive issue between the CAS and the parents is whether Crown wardship is the least disruptive alternative likely to promote the childrens’ best interests, protection and well-being (s. 57(3) of the CSFA ).

[ 25 ] Thus, the issue before Justice Zuker on the motion for summary judgment was whether there were disputes of material fact concerning that substantive issue, the resolution of which required a trial. Put another way, the question was ‘does the written record enable the motion judge to acquire the full appreciation of the evidence necessary to dispose of the substantive issue?’

[ 26 ] However, looming over this case were the statutory time limits contained in s. 70 of the CFSA . Under s. 70(1), the court cannot make an order for Society wardship that results in a child being a Society ward for a period exceeding 12 months if the child is less than six years of age or 24 months of the child is six years of age or older. Section 70 (4) provides that the court may extend the period permitted under s. 70(1) by a period not to exceed six months “if it is in the child’s best interests to do so.” In deciding whether to grant an extension, all of the factors listed in s. 37(3) must be considered. The court must be satisfied that there are unusual or equitable circumstances that would justify granting an exception to the statutory requirements.

[ 27 ] In this case, the children were taken into care on March 23, 2010. The motion was argued on March 28, 2012. Accordingly, with respect to E, the statutory period had just expired and, with respect to A, the statutory period had expired over 12 months earlier. The record is not entirely clear on this point but it does not appear that anyone asked Justice Zuker to exercise his discretion under s. 70(4) to extend the time or argued a basis for the exercise of his discretion to do so. In any event, there does not appear to have been any evidence adduced by anyone specifically addressing; 1) whether it would be in the childrens’ best interests to extend the time; or 2) any unusual or equitable circumstances that would justify an extension. Some of the evidence addressing the substantive issue of course, could be considered relevant to s.70 as well.

Crown Wardship

[ 28 ] I have carefully reviewed the evidence of the parties filed on the motion. In my view, the disagreements between the parents and the CAS involve not so much factual disputes as what the facts mean in terms of the parents’ commitment and ability to parent.

[ 29 ] For example, C.O. seeks, throughout her evidence, to belittle the CAS’s protection concerns and to blame the CAS for various shortcomings. In my view, the CAS’s protection concerns were very well-founded. There is no evidence to support C.O.’s bald allegations that the CAS acted precipitously or improperly in any way.

[ 30 ] C.O. has persistently sought to blame the CAS for her problems. In doing so, she has, in my view, been misguided. What she needed, but failed, to focus on was the presentation of positive evidence of her commitment to caring for the children and her ability to parent. She has, in my view, completely failed in this regard. C.O. raised no triable issue before Justice Zuker on this issue. He committed no reversible error in granting summary judgment vis-à-vis C.O..

[ 31 ] The case of M.S. is more complex. There was evidence of some improvement in the father’s approach and attitude between September 2011 and January 2012.

[ 32 ] His access visits were increased to twice a week. He was about to commence a therapeutic access program in January 2012. He attended various parenting programs such as “dads let's get cooking.” While he did miss some access visits, until his arrest in January 2012 he advised CAS in advance.

[ 33 ] Again, however the facts are not really in dispute. The dispute between M.S. and the CAS lies in the interpretation of the facts and what they mean in terms of the father’s commitment and ability as a parent.

[ 34 ] What cannot be in doubt on the evidence, is that, notwithstanding certain improvements in the father’s attitude and approach, M.S. was, as of the end of March 2012, not yet in a position to care for these children on his own.

[ 35 ] In my view, Justice Zuker's conclusions represent an assessment, by an experienced trial judge, of a mixed picture, but not a picture with material facts that were actually in dispute. He found, for example, that M.S.’s plan “at this point in time is simply too uncertain, speculative and hypothetical to sustain going forward, given his outstanding criminal charges inter alia. ”

[ 36 ] After an exhaustive of the law and the facts, Justice Zuker observed that:

The court should not be asked to speculate as to possible evidence or elaboration which might be available for trial. M.S. has outstanding criminal charges in Lethbridge, Alberta. He is in no position to plan. C.O. cannot rely on M.S.. She cannot plan on her own. Her access was only recently recommended after some 13 months without exercising access. A submission that the Society’s evidence must be tested through cross examination is akin to the “bald allegation” or “mere denial” referred to in Rule 16(4.1) of the Family Law Rules. There must be some connection between the determination of a disputed fact and the outcome of the trial. If determination of the issue will have no bearing on the outcome of the trial, it is not a genuine issue for trial.

[ 37 ] Given the expiry of the two year limitation, Justice Zuker was understandably concerned about the effect on the children of dragging out the process. Further, there was evidence before the court, not contradicted by opposing evidence, that the parents’ intermittent/interrupted pattern of visits lead to post-visit confusion, upset and behavioral problems on the childrens’ part.

[ 38 ] Given the expiration of the two years, the issue really facing Justice Zuker was whether there was a genuine issue requiring a trial about whether the children could be immediately returned to their father’s care, since the allowable period for Society wardship had expired.

[ 39 ] Justice Zuker said:

In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protection procedure under the CFSA . These children have been in care for more than two years. They cannot wait any longer. They cannot wait for [M.S.]. They cannot wait for [C.O.]. The court must give paramount consideration to the best interests test which would include, among other factors, as certain a future as possible…

Given the fact that these children have been in care for more than 24 months, the strict timelines set out in s. 70 preclude consideration of any further period of Society wardship. The best interests of [E] and [A] require permanence and stability. Returning them to the care of either mother or father would not be safe. No other family or community options are available...

In the circumstances, as indicated, Crown wardship is appropriate and in the children’s best interests. Realistically, there are no other options.

[ 40 ] He went on to say, later in his judgment:

Even in the best case scenario, it is unthinkable to place these children with their mother or father, without first testing at this point in time whether they could adequately parent them, first, [on a] fully unsupervised basis, second, for full days, and third, again at this point in time, for overnight visits. The court would need to evaluate if they could meet their needs for these increasing periods of time. This process would need to take place for several weeks at the very least for the court to effectively evaluate if their return was viable. There is a huge difference between managing children in a structured setting for a short period of time and caring for them on an extended basis. The time to experiment with [E] and [A] is long over. This is no longer an option.

[ 41 ] In my view, while these conclusions may be open to debate, they are not open to debate on the basis of conflicting evidence on a material issue which would require a trial to resolve. Rather, as noted above, there is simply a mixture of positive and negative facts present in this case. The motion judge, in effect, took the approach of accepting as true the parent’s evidence of commitment and ability to parent. Even accepting that evidence, so far as it went, it was open to the motion judge to conclude, in the circumstances of this case (particularly given the expiry of the two year period) that a trial was not necessary to resolve the question of Crown wardship.

[ 42 ] I agree with Justice Zuker when he said:

In child protection cases, the existence of a genuine issue for trial must arise from something more than a heartfelt expression by a parent of a desire to resume care of the child. There must be an arguable point based on the parent’s evidence that the parent faces some better prospects than those that existed at the time of the Society’s initial involvement, and has developed some new ability as a parent. The courts have highlighted the importance of additional considerations in summary judgment motions brought in the context of child protection cases. These include “the nature of the evidence on the motion, any mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved, if any, and particularly how material are the facts in issue to the case.” In addition, the analysis must be undertaken under the umbrella of the paramount purpose of the CFSA , which is “to promote the best interests, protection and well-being of children.” Summary judgment is a means of controlling a child’s drift in litigation and allowing for appropriate planning for the child in a timely manner.

[ 43 ] An issue has been raised about whether Justice Zuker ought to have exercised his discretion to extend the period of Society wardship for an additional six months under s. 70(4). Leaving aside the legal question of whether the statutory period may beextended post-expiry (remembering that in the case of A, the statutory period had been expired for over a year), Justice Zuker’s conclusions quoted above reflect, in my view, the absence of any evidence of unusual or equitable circumstances that would support the exercise of that discretion. His statement, for example, that “the strict timelines set out in s.70 preclude consideration of any further period of Society wardship” must be viewed in the context of the evidence as a whole and the lack of any evidence specifically addressing the test under s. 70(4) for an extension. Again, the material facts were not in dispute – the dispute was around what to make of those facts.

[ 44 ] For these reasons, the appeal of the order for Crown wardship is dismissed.

Post-Crown Wardship Access

[ 45 ] Post-Crown wardship access is governed by s. 59(2.1) of the CFSA . There is a two part, conjunctive test for the grant of such an order:

1. the relationship between the child and the person must be meaningful and beneficial to the child; and

2. access will not impair the child's future opportunities for adoption.

[ 46 ] The parents and the Office of the Childrens’ Lawyer argue that there are disputed facts relating to this two-part test and, therefore, that there is a genuine issue requiring a trial on the question of post-wardship access.

[ 47 ] It is clear that the onus is on the parents to adduce evidence that their relationship with the children is beneficial and meaningful and that access will not impair the childrens’ future opportunities for adoption.

[ 48 ] Justice Zuker concluded, on the first part of the test, that the parents in this case had “failed to adduce any evidence to support such a finding. They have missed many visits and have failed to provide a satisfactory explanation for these missed visits. An order for no access to the children should issue.”

[ 49 ] While I believe that Justice Zuker’s conclusion with respect to C.O. is correct, the OCL makes a compelling argument that there are conflicting facts as to the beneficial and meaningful nature of M.S.’s access visits with the children.

[ 50 ] However, even if there was conflicting evidence, the resolution of which requires a trial, over whether M.S.’s visits with the children are beneficial and meaningful, he must still meet the onus of showing that continued access will not impair the children’s future opportunities for adoption. Unfortunately, I am compelled to agree with Justice Zuker that neither the mother nor the father presented any evidence which even addresses, let alone satisfies, the second part of the s. 59(2.1) test. On this point, the issues raised by the OCL and the parents appear to involve questions of law rather than questions of disputed fact.

[ 51 ] For these reasons, the appellant’s appeal on the question of post-Crown wardship access is also dismissed.

Sibling Contact

[ 52 ] At the summary judgment motion, none of the parties raised the issue of sibling access between E and A subsequent to an order for Crown wardship. Similarly, none of the parties raised an issue about E and A’s access to their half sibling, D, who was born in 1997 and lives in Ottawa with his biological father.

[ 53 ] On the appeal, the OCL advanced evidence on these issues for the first time and made argument in support of the need for a trial on these two issues.

[ 54 ] The OCL’s involvement in the appeal was thoughtful, responsible and helpful. Accordingly, I do not wish to be taken as being in any way critical of the OCL’s position. However, the fact remains that the issue of sibling access was not put before the motion judge. There is, as a result, an incomplete and insufficient evidentiary record to deal properly with this issue. Further, in the scheme of things, I do not think it is in the interests of justice to order a trial now over a subsidiary issue that has been raised for the first time on appeal. For this reason, I decline to deal with the issue of sibling access.

Conclusion

[ 55 ] For the reasons set out above, the appeal is dismissed. There shall be no order as to costs.

PENNY J.

Date: November 20, 2012