ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 2013-03-11
COURT FILE NO.: FS-12-0317
B E T W E E N:
C.R.
The Applicant being self-represented
Appellant
- and -
Children’s Aid Society of the District of Thunder Bay,
James L. Murray, for the Children’s Aid Society
Jean Olibris, for the Office of the Children’s’ Lawyer
Respondent
AND BETWEEN:
D.Q.,
Appellant
-and –
COURT FILE NO.: FS-12-0318
Michael Cupello, for the Father
Children’s Aid Society of The District of Thunder Bay,
Respondent
James L. Murray, for the Children’s Aid Society
Jean Olibris, for the Office of the Children’s’ Lawyer
HEARD: January 29 & 30, 2013,
at Thunder Bay, Ontario
J. dep. Wright, J.
Reasons For Judgment On Appeal
[1] These are appeals by parents in a Child Welfare case. Issues of procedural fairness are raised with respect to the mother in particular.
[2] It has been said that a judge is never confronted with a more serious issue than when the state seeks to take a person's life, her children, or her liberty in that order of priority.
[3] Now that capital punishment has been abolished:
“[18] A Crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T. reflex, (1996), 90 U.A.C. 5, 23 R.F.L. (4th) 79, [1996] U.J. No. 1394, 1996 CarswellOnt 1428 (Ont. Div. Ct.)” . per S.B. Sherr: Children’s Aid Society of Toronto v. E.E. 2011 ONCJ 113, [2011] O.J. No 3143
[4] Frankfurter J. once said "The history of liberty has largely been the history of observance of procedural safeguards." (McNabb v. U.S. (1943), 318 U.S. 332.) He subsequently added:”"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." (United States v. Rabinowitz 339 U.S. 56 @ 69 (1950))
[5] In a similar vein P.B. Hambly, J. had occasion to note that:
18 Counsel for J.R. emphasized the concern that courts have expressed that parents in child protection cases be granted procedural fairness. She referred to the cases of Children's Aid Society of Halton Region v. C.J.R 2005 ONCJ 514, [2005] O.J. No. 5786 at paras. 20, 27 and 29, Children and Family Services for York Region v. E.T. 2009 72329 (ON SC), [2009] O.J. No. 5587 at paras. 18, 25 and 35 and A.M. v. Chatham-Kent Integrated Children's Service Children's Aid Society [2006] O.J. No. 2984 at paras. 53, 65 and 68. (CAS of Waterloo v. K.M. 2011 ONSC 107)
[6] The judgment appealed from was granted on motion for summary judgment. It deprived parents of their children and denied the mother the right to present her claim for access in a trial of that issue..
[7] The propriety of taking children from their parents through the use of a motion for summary judgment is questionable.
[8] One cannot help but think that a stranger to our shores, aware of our legal history, would be appalled at the thought that parents could be deprived of their children simply upon paper filed with the court and without the court hearing from the parents directly.
[9] In the days of capital punishment the courts would not accept a plea of guilty. No matter how "open and shut" the case might have appeared to be, oral evidence from witnesses had to be placed before a jury which would justify its verdict of guilty.
[10] Similarly, when the state seeks to deprive a person of his liberty it cannot simply file affidavits indicating that there is no triable issue concerning the guilt of the accused and therefore the accused should not be entitled to a trial.
[11] The taking of children is different. Goaded on by the demands of an overwhelmed judicial system and by notions of expediency we have taken a procedure that was originally created to speed commercial matters through the courts and applied it to one of the most profound issues to affect human beings.
[12] We have then refused to adopt certain ameliorating doctrines which now apply to motions for summary judgment under the Rules of Civil Procedure such as the “full appreciation test.” (CAS of Toronto v. T.H. 2012 ONSC 3916 )
[20] On December 5, 2011, the Ontario Court of Appeal released its decision in Combined Air Mechanical Services Inc. v. Flesch (2011 ONCA 764). In that decision, the court articulated what has become known as "the full appreciation test" on motions for summary judgment under the amended rule 20 the Rules of Civil Procedure. By this, the court stated that in order to grant summary judgment, the motions judge must ask the following question: "can the full appreciation of the evidence and 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?" (CAS of Toronto v. T.H. 2012 ONSC 3916)
[13] One would think that this test is even more applicable to the issues raised in child welfare.
[14] In this case, although time had been allocated for a trial in which the parties could have been heard, the Children's Aid Society, when further adverse information was said to have been received about the father, moved for summary judgment and asked the court to vacate the trial dates.
[15] Both parents indicated that they wanted to cross-examine the deponents of the affidavits filed by the Society. The mother made her wish known several months prior to the hearing but then lost her lawyer in the meantime and did not know how to proceed. The father waited until the day of the hearing to make his request. In the event neither was able to have the deponents clarify statements made.
[16] The procedure for cross-examination in such situations should be addressed by the Family Law Rules Committee. Under the Civil Rules there are several ways in which evidence given upon cross examination can be presented to the motions court. One can cross-examine the deponent outside of court, order a transcript and use the transcript at the hearing of the motion or now, under Rule 20.04(2.2) the court can be asked to receive oral testimony on the motion. A deponent can be cross-examined in front of the motions judge. Unfortunately, this first procedure is ill adapted to child welfare proceedings. By the very nature of things the court is dealing with people who are sometimes unrepresented by counsel, who do not know how to go about compelling the attendance of the deponent for cross-examination and who do not have the financial resources to pay a reporter for her attendance and her transcript.
[17] The second procedure seems more sensible in child protection procedure. If a party believes that there are aspects of the case a deponent can help with then a simple notice to the Society that the deponent is to be produced in court for cross-examination on the motion should be sufficient.
[18] The importance of cross-examination in the realm of natural justice was highlighted by Justice Cory in R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595 at paras. 157 – 160.
[19] There are those who will say that my comments confuse the issues on a motion for summary judgment with the issues on a trial. On a motion for summary judgment under the Family Law Rules credibility is not an issue.
“[17] The court's function is very narrow in this motion [for summary judgment]. [At this stage] the task is not to resolve an issue of fact but to determine whether a genuine issue of fact exists. The issue must be germane to the judicial decision required in the case. A "genuine" issue of fact requires that the fact be material to the decision that must be taken in the main litigation. If the result of the proceeding does not turn on the existence or non-existence of the fact that is advanced as a genuine issue, then it cannot relate to a "genuine issue for trial". See Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545, 50 O.A.C. 176, 83 D.L.R. (4th) 734, 1 C.P.C. (3d) 248, [1991] O.J. No. 1478, 1991 CarswellOnt 370 (Ont. C.A.), at pages 550-552 [O.R.].” (Children's Aid Society of Toronto v. R.H,. 2000 3158 (ON CJ), [2000] O.J. No. 5853)
They will say that the trial is the appropriate forum for challenging allegations and settling facts.
[20] While this is true, this reasoning reminds one of the days when criminal procedure prohibited an accused from testifying on his own behalf. It was thought to be unnecessary. He could not be hanged unless the Crown’s evidence established his guilt beyond a reasonable doubt and his attempt to deny his guilt was irrelevant if not dangerous to his case because it might deflect the jury’s attention from the real issue. Or so it was thought!
[21] The mother does not appeal the Crown Wardship order. She appeals what she understands was an order depriving her of a trial of the issue of her right to access.
[22] The father was given the right to a trial of the access issue but he appeals the Crown Wardship order.
[23] Just what the order was that affects the mother is a matter of some uncertainty.
[24] The mother’s Notice Of Appeal states that it is for an order setting aside an order dated Aug. 21 2012, the reasons for which were not released until Sept. 7 2012, which reasons were not received by the mother until Oct 1 according to her. She is particularly aggrieved that she was not in court when the decision was handed down. She claims that she and the CAS worker were in the hallway waiting to be called into court when they were informed that it was over and they could go home.
[25] The father’s notice of appeal also states that it is from an order dated August 21.
Mother’s Appeal: C.R.:
[26] At the opening of argument I was assured by counsel (the mother was unrepresented but the father, the Society, and the Children's Lawyer had counsel in attendance) that the decision under appeal was dated August 21 although the reasons for that decision had not been released until September 7. At the time I was more concerned with time limitations regarding the commencement of the appeals. In the event the Society waived any technicality in this regard.
[27] In considering this appeal confusion has arisen from the following facts. The motion for summary judgment was heard on June 26, 2012. Following argument the decision was reserved and the matter put over to August 21. On July 27, 2012 the trial judge endorsed the file saying, amongst other things, "for written reasons released, motion for summary judgment granted in part . . . [The children] shall be made wards of the crown . . . Whether or not the respondents (sic) should be granted access is a triable issue. The issue of access will therefore proceed, to a TMC [trial management conference?] and trial if necessary." No written reasons were in fact released that day. The signed endorsement for August 21, the date of the order under appeal, simply notes the presence of counsel for the Society, the Children’s Lawyer and for both parents and says “TMC [trial management conference?] set for Oct 2, 2012 at 2:30 pm”. I assume that the order of August 21 was originally an oral decision which was delivered that day in accordance with the endorsement of July 27, except that reasons were to follow. I presume that the setting of the October 2 date for the trial management conference was in accordance with the endorsement of July 27. On September 7, 2012 written reasons for judgment were released. The date August 21, 2012 appears on the first page under the file number. These written reasons denied the mother the right to a trial of the access issue and they are the reason the mother has appealed. The trial judge’s signed handwritten endorsement of July 27 remains on the record. There is no other relevant endorsement.
[28] Under the practice followed in non-family matters an appeal cannot be heard until the decision being appealed from has been embodied in a formal order. Such, I gather is not the practice in Child Welfare matters.
[29] Arguments can be made that with the endorsement of July 27, which has never expressly been withdrawn, the court became functus, that is that the judge had completed her task and no longer had authority to return to the issue and deliver a contradictory decision. It might be argued that her authority expired either immediately upon signing the endorsement or when that decision was acted upon by the setting of the date for the trial management conference and that consequently the mother is entitled to her day in court on the issue of access.
[30] If the first decision is the one that governs then the mother should be heard regarding access. If the second decision governs then I must consider the whole situation.
[31] Just when a judge becomes unable to modify her decision is an interesting subject but I do not intend to quibble over these technicalities. To do so would require that a date be set for counsel to re-attend to address that issue.[As inconvenient as it may be it is not uncommon for trial judges to have second thoughts about a decision. As Laskin,J. noted in Spataro v. The Queen 1972 25 (SCC), [1972] 7 C.C.C. (2d) 1 @14 (S.C.C.) “[second thoughts] are endemic in the judicial office.”]
[32] For my purposes, without deciding which was the “official” decision I accept that on July 27 the intention of the judge was to allow the mother to be heard on the issue of access. I accept that she subsequently changed her mind and for my purposes I will assume she was entitled to do so.
[33] When an appellate judge reviews another judge’s decision such as I am doing now certain rules apply. The “appeal is not a rehearing that takes place as though there were not already a decision on the merits of the case. The Judge's decision is entitled to due respect. The appellant must show that the judge erred in his appreciation of the evidence, in the inferences he drew from the evidence or in his application of the relevant legal considerations. Carter v. Brooks (1990) 2 O.R. (3d) 321, 41 O.A.C. 389, 77 D.L.R. (4th) 45, 30 R.F.L. (3d) 53, 1990 2623, [1990] O.J. No. 2182, 1990 CarswellOnt 317 (Ont C.A.).” CAS of Waterloo v. C.A.D. 2011 ONSC 2253 (MacPherson, J).
[34] Before I can act I must conclude that the original judge made a palpable and overriding error. Palpable means "plainly seen".
[35] The motions judge had the decision under reserve for over two months. Her reasons were included in a very well-written decision 12 pages in length in which she sets out clearly and accurately the law affecting the case and then her findings. In those reasons the trial judge denies the mother the right to a trial of the issue of access.
[36] Unfortunately, the decision is tainted by issues of procedural fairness.
[37] It might be said that it was a “palpable and overriding error” to leave two inconsistent decisions on the record but I intend to go beyond that.
[38] I am aware that an order for Crown Wardship having been made there is an onus upon the parent to establish that the relationship between that parent and the child is beneficial and meaningful to the child and that access will not impair the child's future opportunities for adoption. Section 59(2.1) Child and Family Services Act.
[39] The Society, supported by the trial judge at paragraph 36, submits that it is the relationship that exists between the parent and the child at the time of hearing that is important. Great reliance is placed both by the society and the trial judge upon the fact that the mother has had no contact with the children since August 2011.
[40] I am aware that it is not for me to say whether the mother should be given access. My function is solely to determine whether she should have an opportunity of presenting a request for access to the appropriate Judge.
[41] I am aware that even if the mother were to be successful upon her request for access that access would terminate upon the children being placed for adoption. However I also understand that an order for access would entitle her to seek an order for "openness".
[42] Notwithstanding this I have concluded that natural justice demands that she be given "her day in court" and that the conflicting record opens the door to a reconsideration of that issue.
[43] I am influenced in coming to this conclusion by the following.
[44] My knowledge that the trial judge, at one point, was prepared to grant a hearing on the issue of access to her.
[45] My knowledge that the Society originally accepted her right to a hearing, not only of the issue of access but the entire wardship issue. Dates were reserved for that trial. It was the father’s on-going involvement with the criminal law that led the Society to proceed by way of summary judgment according to counsel for the Children’s Lawyer, not the conduct of the mother!
[46] My understanding that the order for a hearing regarding access will not materially interfere with the Society’s care of the children in the meantime. My understanding is that the children are in a stable relationship with prospective adoptive parents. The father has already been given the right to a trial of the issue with respect to access so the society’s plans for the children are on "hold" pending disposition of the father’s claim in any event.
[47] The trial judge subsequently decided to deny the mother the right to a trial of her claim for access on the grounds that:
The mother remains highly unreliable and inconsistent. She has not exercised access for over a year. While she states that the lack of access is not her fault, her lack of effort to exercise access or participate in these proceedings demonstrates a lack of commitment to the children and a lack of understanding of child development and the importance of being a consistent and predictable presence in her children's lives. Para [31(4)]
[48] There is no doubt that the mother has not in fact seen the children since July 2011. As a result "there is absolutely no evidence in the materials filed on which I could find access with the mother is beneficial and meaningful to the children". (Para [38]) The mother claims, however, that she was placed in a "catch 22" situation. The mother says that she was not seen the children because the Society denied her access. The mother claims that she was told that this was temporary. She claims the reason given to her was that the children were being moved into another foster home and the Society did not want there to be any disruption for the time being. I understand that the children were in fact being moved at the time. The mother says that her worker subsequently told her that she did not know why the mother was continuing to be denied access but that she would raise the issue at a case conference at the Children’s Aid Society. The mother says there was never any answer forthcoming. The mother claims to have been hopeful that the worker would be questioned on this point either by herself or the father at the hearing. This did not transpire. When it was suggested to the mother in argument that she might have resorted to the courts for reinstitution of her access she pointed out that she had recently given birth to a fourth child which was under the temporary care of the Society and that she was intimidated by the possibility of losing her baby. She claims that the day the decision was released in this matter her baby was restored to her.
[49] The motions judge erred in considering the effluxion of time since the mother had last seen the children but not considering the reason for it.
[50] That effluxion of time is a fact. An important fact in the life of the children and may indeed be the governing fact. But when allegations are made that things were unfairly manipulated to create this fact the court has an obligation to inquire. Otherwise there is no judicial oversight.
[51] It seems unfair to deny a mother access without advising her of the reason then turn around and use her lack of a relationship with the children to deny her access. I make no finding whether this in fact occurred. It will be for the trial judge to determine that and, if it did occur, whether the fait accompli trumps or whether the society should be estopped from raising the issue in this case.
[52] There is some doubt about the allegation of her lack of effort to participate in these proceedings. While the mother admits that there were occasions when her circumstances caused her to miss some proceedings she denies other allegations. As already noted, she claimed to be incensed at the fact that she was not invited into the courtroom for the delivery of the decision. While the trial judge specifically stated that in December 2011 the mother did not appear (para [18]), a review of the endorsement made on that date indicates she was in fact present if I read it correctly.
[53] In extending to the mother the right to be heard on the issue of access I am influenced by the fact that this proceeding began, not as an investigation by the CAS into reported misbehaviour by the mother, but as a request for help from the mother who recognized that her post-partum depression was adversely affecting the children. It is important that self-reporting parents should be handled with the utmost restraint and fairness if we are to encourage young mothers to seek help for themselves and their children. The mother is often the first to realize her limitations. I am not suggesting that this mother was handled abruptly. The time that has elapsed suggests otherwise. But we do not want to dissuade such people from seeking help.
[54] I am influenced by the mother’s failure to arrange for the questioning of the deponent brought about by the apparent absence of a simple procedure to have that person brought before the motions judge for the purpose. When the request was originally made the Society might have simply undertaken that the deponent would be made available on the hearing of the motion to answer reasonable questions.
Disposition: Mother
[55] The mother does not now contest the Crown Wardship. While the onus is against her on her quest for access, procedural fairness dictates that her right to a hearing on access should be reinstated.
Father’s Appeal: D.Q.:
[57] The father appeals the imposition of Crown Wardship on the grounds that the trial judge erred:
a) in not granting the appellant D.Q. an adjournment in order to allow him to cross-examine the deponents of the affidavits in support of the motion for summary judgment,
b) not allowing the father to present his plan of care,
c) by placing too much reliance on the passage of time as there was no credible evidence that the passage of time was in any way due to the fault of the father but was basically systemic in the child protection proceedings system.
d) by placing undue influence upon the father's outstanding criminal charges which, he pleads, were in the process of being withdrawn by the crown.
[56] Notwithstanding the high priority that cross-examination occupies in the spectrum of procedural fairness as noted above, there are limits to all rights. In this case the appellant requested the adjournment for purposes of cross-examination on the day set for the hearing of the argument on the motion for summary judgment. This was at least his second request for an adjournment for one purpose or another. The prior adjournment on March 20 had been granted. The Child And Family Services Act emphasizes the timely dispatch of litigation regarding children. The request for cross-examination was made too late. (see for example: CAS of Toronto v. TH 2012 ONSC 3916 (Mesbur,J))
[57] the record indicates that the father did in fact provide a plan of care for the children and that this was considered by the trial judge. See her reasons at paragraphs 28 to 30 inclusive.
[58] I have already expressed my distaste for any suggestion that a society should be allowed to create a case based upon de facto custody of the children and delay and then argue the status quo. I have already given the mother an opportunity to raise that issue in the context of her access application. The father's situation is different. The father supported the society’s original motion for a declaration that the children were in need of protection. See paragraph 16 of the trial judge's reasons. The children having been placed in this status the society embarked upon a lengthy, perhaps too lengthy, process of attempting to see whether the father might prove to be a suitable alternate caregiver. His case was hampered by many factors. He had effectively been out of the family from shortly after the birth of the first child. During that time he had been involved in a serious accident and had suffered both mentally and physically. Notwithstanding these and other drawbacks the father was given an opportunity to prove that he could be drug-free and that his mental health was stable. See paragraph 17. After several months of participation in therapeutic access program and in settlement conferences, the society concluded that the father's lack progress prevented the children from being placed with him.
[59] The record before the motions judge indicated that the father had a long history of drug abuse, mental health issues and criminal activity. His most recent hair analysis drug tests which had been filed as exhibits showed that the father had tested positive for cocaine, methadone, opiates, OxyContin and Fentanyl in November 2011. The levels of drugs found in the father's hair samples suggested regular frequent use of cocaine by him. About this time he was charged with possession of narcotics for the purpose of trafficking and other offenses. The father was said to have admitted dealing drugs. His charges in fact remained outstanding at the time of the motion. A custodial sentence was a very real possibility. While he had continued to be allowed access this was being supervised in the society's office.
[60] At the same time the children had been residing in the care of their prospective adoptive parents since July 2011. They were said to be happy and healthy in care. The child K. Q. has autism and has now been residing in the care of his adoptive family since October 2011. He receives special services as result of his special needs. Because of the effluxion of time Society Wardship was out of the question.
[61] The trial judge knew the requirements that had to be met before summary judgment could be imposed. She found that these requirements had been met. She found found that these children should be given a new life in their new homes. I cannot find that she was incorrect let alone that the committed a palpable and overriding error.
Disposition: Father
[62] the society had moved to strike out the father's appeal for reasons of delay but rightly chose not to shelter behind that technicality in this case. That motion is dismissed.
[63] The father’s appeal to set aside the Crown Wardship is dismissed.
Order Issued:
[64] An Order shall issue:
a) Granting the mother the right to a trial of the issue concerning the issue of access to the children in question,
b) Dismissing the Society’s motion to strike out the father’s appeal, and
c) Dismissing the father’s appeal of the order for Crown Wardship.
The Hon. Mr. Justice J. deP. Wright
Released: March 11, 2013
DATE: 2013-03-11
ONTARIO
SUPERIOR COURT OF JUSTICE
FS-12-0317
B E T W E E N:
C.R.,
Applicant
- and –
Children’s Aid Society of the District of Thunder Bay,
Respondent
FS-12-0318
AND B E T W E E N:
D.Q.,
Applicant
- and –
Children’s Aid Society of the District of Thunder Bay,
Respondent
REASONS FOR JUDGMENT ON APPEAL
J. deP. Wright J.
Released: March 11, 2013
/mls