SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-09-02
DATE: 2012-02-10

RE: Children’s Aid Society of Ottawa, Applicant

AND

K.H., D.R. and P.H., Respondents

BEFORE: Mr. Justice Timothy Minnema

COUNSEL:
Jane McCalla, Counsel for the Applicant

Ross Stewart, Counsel for the Respondent K.H.

Jane O’Neill, Counsel for the child K.R.

HEARD: February 3, 2012

ENDORSEMENT

[ 1 ] This is a summary judgment motion brought by the Children’s Aid Society of Ottawa for a final order pursuant to section 57.1 of the Child and Family Services Act placing the child K.R., born […], 1998, age 13, in the custody of his maternal grandfather P.H., with access to the parents at Mr. P.H.’s discretion.

[ 2 ] Although in default, the mother by a letter from her counsel to the CAS dated February 1, 2012, consents to the order sought. The maternal grandfather attended the hearing, although he did not make submissions. He is also in agreement with the order sought. I asked Mr. P.H. whether he had a spoken to a lawyer. I was advised that he had been offered independent legal advice paid for by the Society but had declined. Also present was the father representing himself and Ms. O’Neill as agent for the Office of the Children’s Lawyer.

[ 3 ] K.R. has been living with his maternal grandfather subject to the Society’s supervision on terms since January 16, 2009, over three years. In a sense the Society is seeking to be less intrusive with this family, leaving the custodial status quo but relinquishing its supervision. All the evidence points to K.R. doing very well in his maternal grandfather’s care. Even Mr. D.R. at this hearing acknowledged that K.R. is in a safe place now.

[ 4 ] There is no dispute about the fact that the father has access to K.R., loves K.R. and K.R. loves him, and there is no plan to in anyway impede that relationship. Indeed K.R. wants to live with his father. In looking at the best interests considerations in s. 37(3) of the CFSA , this is an important factor given K.R.’s age. However, it is but one factor for the court to consider in assessing his best interests. This is noted by his counsel who has put forward K.R.’s wishes but acknowledges that they have to be considered in context. That context is the father’s personal situation and the other s. 37(3) best interest considerations, a huge one being K.R.’s continuity of care. Ms. O’Neill also notes that K.R. is aware of this proceeding, and after three years would like a decision, one way or the other.

[ 5 ] Rather than being happy with the proposal to have the Society out of his life, Mr. D.R. opposes the application. He indicates that he is working hard at having K.R. placed with him. He admits he has a significant history of drug use and addiction. He acknowledges his lengthy criminal record. He is currently serving an intermittent criminal sentence on weekends until March 3, 2012, and will remain on house arrest until July of 2012. He has recently tested positive for cocaine. Coming into this hearing he was denying drug use despite drug testing to the contrary, raising the possibility of a factual issue being in dispute. However today he conceded that after an alleged two and an half years of being straight he “fell off the wagon” and has used marijuana, and he adds that it is possible that some of that marijuana may have been laced with cocaine.

[ 6 ] To his credit Mr. D.R. remains strongly committed to his son while he struggles with his own personal issues. He indicates that he is engaged with services to address his drug issues. Some of this is current, such as attending Narcotics Anonymous twice a week. Some of it is prospective. He advises that he has an intake appointment at the Sandy Hill Addictions Centre on April 5, 2012, and plans to start urine drug screens through a health centre or his family doctor. He refers to having support of family, although there is evidence that his partner Ms. Tasse is unlikely to be a positive influence for K.R..

[ 7 ] Timing here seems to be a central issue for Mr. D.R. in his materials and submissions. While he would like K.R. placed with him, he seems to appreciate that will not happen today. So what he really wants is a delay, hoping that by the time this case gets to trial he will have served his criminal sentence, engaged with services, and be able to show a period of being drug free. As such his alternative position along those lines is for a further six-month supervision order with the maternal grandfather.

[ 8 ] Mr. D.R. asked me to take into consideration his impassioned pleas, and I have. The difficulty as I see it is that the question for the Court on this motion is not whether there could be a genuine issue for trial at some still undetermined time in the future, but rather whether there is a genuine issue for trial today.

[ 9 ] Rule 16(4.1) makes it clear that Mr. D.R. as the responding party has to set out specific facts showing that there is a genuine issue for trial. This is the old ‘best foot forward’ requirement in the summary judgment test. It allows the court to assume that if the case were to go to trial the responding party would present no additional evidence: Rogers Cable TV Ltd. v. 373041 Ontario Ltd ., 1994 (ON SC) , [1994] O.J. No. 2196 , (Ont . Gen. Div.) at para. 4 . Along these lines Rule 16 in relation to protection proceedings has been described as a remedy to control a child’s drift in litigation, or in other words as a means to prevent a child from being held in “limbo” while a dysfunctional parent engages in uncertain attempts to correct his or her inadequacies: Children’s Aid Society of the Regional Municipality of Waterloo v. V.L. , 2006 (ON SC) , [2006] O.J. No. 3785 (S.C.J.). Similarly it has been noted that a child's need for permanency planning within a timeframe sensitive to that 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: Children’s Aid Society of Toronto v. R.H. , 2000 (ON CJ) , [2000] O.J. 5853 (O.C.J.). O n a summary judgment motion i n Children’s Aid Society of London and Middlesex v. L.A. 1999 (ON SC) , [1999] O.J. No. 5839 (Ont. Gen. Div. – Family Court), the Court found no merit in the submission that the triable issue that required a full hearing was the mother’s possible reformation and her future ability to act as a parent. On the facts of this case I find these cases relevant and compelling.

[ 10 ] Looking at the materials filed, the plans of the parties, the law, and the overall best interests of K.R. per section 37(3) of the CFSA , I find that there is no genuine issue for trial at this point in time. Mr. D.R. has work to do, the child cannot come home to him now, and while Mr. D.R. works on his own personal issues K.R. wants and needs to know his status.

[ 11 ] For these reasons I grant summary judgment on the following terms:

P.H. shall have sole custody of the child K.R., born […] , 1998, pursuant to section 57.1 of the Child and Family Services Act , with access to the parents K.H. and D.R. in the discretion of P.H..

[ 12 ] This is not an appropriate case for costs.

Mr. Justice Timothy Minnema
Date: February 10, 2012

COURT FILE NO.: FC-09-02

DATE: 2012-02-10

ONTARIO SUPERIOR COURT OF JUSTICE RE: Children’s Aid Society of Ottawa, Applicant AND K.H., D.R., and P.H., Respondents BEFORE: Mr. Justice Timothy Minnema COUNSEL: Jane McCalla, Counsel for the Applicant Ross Stewart, Counsel for the Respondent K.H. Jane O’Neill, Counsel for the child K.R. ENDORSEMENT Mr. Justice Timothy Minnema

Released: February 10, 2012