SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-018323

DATE: 20130322

RE: S.C., Appellant

AND:

C.A.S.T., Respondent

BEFORE: Czutrin J.

COUNSEL:
Andrew Sudano, for the Appellant

Martha Chamberlain, for the Respondent

HEARD: February 28, 2013

ENDORSEMENT

[1] The mother of P.C., born […] 2011, appeals the final order of Paulseth J. (the “Motion’s Judge”) dated September 5, 2012 granting the Children’s Aid Society of Toronto’s (the “Society”) motion for summary judgment and ordering Crown Wardship, without access to P.C., who was born […], 2011.

[2] In the original Notice of Appeal filed in time by the mother, she relied on the following grounds of Appeal:

a. The motion’s judge made a palpable and overriding error in her appreciation of the facts and failed to take into consideration of all of the relevant facts presented.

b. The trial judge failed to follow the statutory pathways in the Child and Family Services Act.

[3] In fleshing out to the grounds of appeal, the mother submitted that the Motion’s Judge failed to take into consideration all of the Appellant mother’s evidence. In particular, there was a flash drive that had videos of some of the visits of the mother with the child.

[4] In failing to review the videos and the nature of the visits between the mother and child, the mother submits that she raised a triable issue.

[5] The mother submits that her counsel invited the Motion’s Judge to review the videos so that the Motion’s Judge could form her own opinion about the interaction of the mother and the child during the access visits rather than relying on the Society worker’s observations.

[6] The mother submits that when asked by counsel, the Motion’s Judge replied, “I did not look at the videos.” While the Motion’s Judge reviewed the access notes, the mother submits that it remains unclear how the evidence in the flash drive could have factored in the Motion’s Judge’s decision.

[7] In submitting that the Motion’s Judge failed to follow the statutory pathways of the Child and Family Services Act (“CFSA”), the mother submits that the Motion’s Judge failed to follow s. 70(4) in that the mother’s case was an exceptional set of circumstances requiring a consideration of extending the timelines for an additional six months.

[8] The mother’s factum makes reference to the Motion’s Judge’s oral reasons she stated: “What I really wanted to find here was what is the concrete plan for the next few months if I was to exercise discretion and extend wardship? I would need to know that there was a concrete plan that we are really – we were close. ...”

[9] While I review briefly the background of the child and mother, remarkably, there was no request for fresh evidence on the Appeal. Therefore, I was left with the same evidence as the Motion’s Judge. I had the opportunity to review the same affidavits.

[10] When I heard the Appeal, the time for extension of a period of Society’s Wardship under s. 70(4) was nearly at an end. If the mother had a viable plan for the return of the child to her, it was open for her to pursue that the plan while waiting for the Appeal to be heard. Her plan presented for the Motion’s Judge included: continuing counseling program at CAMH, increased access with the child over the next six months moving towards unsupervised access in the community; the continued support of a friend of the mother, who also videotaped the visits that were on the flash drive, and to provide hair strand testing to evidence the mother being drug free.

[11] The mother asked that I find that there was a triable issue and, as such, remit the case back for trial at the Ontario Court of Justice.

[12] The child was apprehended at birth and had remained in the same foster home until he was placed in his current foster home with a view to adoption late last year.

[13] The mother was served with the summary judgment motion material on May 11, 2012.

[14] The mother responded to the material on June 1, 2012, sought an extension of six months of the statutory timelines. (Section 70(4) CFSA.)

[15] At the time the child came into care and was apprehended, the mother had many difficulties in her life that affected her parenting, including addiction to cocaine, lack of affordable housing, financial problems, dealing with a recent sexual assault, and difficulty dealing with victims’ services and treatment providers. This was conceded by the mother.

[16] The Society advised the mother that in order for her to parent a child she would need to attend treatment for her cocaine addiction, obtain a psychological assessment, find safe and stable housing, engage in parenting supports and attend access visits and meetings with the Society consistently and on time.

[17] The mother started several treatment programs.

[18] As of June 1, 2012, the mother acknowledged she was not yet substance free.

[19] At the time of the summary judgment, the mother acknowledges she was not substance free and she was still testing positive at high levels for cocaine usage. She still required mental health support, at the time of summary judgment.

[20] The mother acknowledge that at the time of the summary judgment she was still not ready to resume parenting and requested the court to grant an extension of time to be in position to resume care of her son.

[21] I reviewed the oral reasons of the Motion’s Judge and with benefit of the same evidence that she did and while I suggested to the mother’s counsel even if I accepted that the that on the videos that the mother acted appropriately with the child that was hardly determinative of the case. I reviewed some of the videotapes and find that on the dates taken and in a supervised setting; the mother did not act inappropriately. In fact in those brief sessions and on those dates I would not find inappropriate interaction. However that does not address the mother’s ability to care for the child and have the child returned to her within the timelines provided for by the CFSA.

[22] In Child and Family Services Act appeals, particularly from a motion for summary judgment, and particular with the timelines having passed, the absence of additional evidence by way of affidavit that would give me some comfort that further delay by returning the matter for trial, or perhaps a second motion would be appropriate and consistent with the best interests of the child when the protection finding was not in issue.

[23] Having reviewed the reasons of the motion’s judgment, I see no unfairness procedurally, I see no palpable and overriding error, and I see no misapplication of the law. Whether the standard review is palpable or overriding or one of correctness, having the benefit of the Motion’s Judge’s reasons and the same evidence as she had, I see no basis to interfere with her decision and I would have come to the same conclusion.

[24] The Motion’s Judge appropriately and correctly considered the law on summary judgments applicable under the Family Law Rules and in the context of the child protection her proceeding. The Motion’s Judge earlier referred to statement that:

What I really wanted to find here was what is the concrete plan for the next few months if I was to exercise discretion and extend wardship? I would need to know that there was a concrete plan that we are really – we were close …

was indicative of the judge’s desire to find a triable issue and if appropriate grant the extension of time sought by the mother.

[25] The trail judge then appropriately and correctly considered the Child and Family Services Act, the pathways and the alternate dispositions available and on the facts of this case, the motions’ judge was correct and made no palpable and overriding error.

[26] No judge wishes to terminate a parent-child relationship, however, when the facts are as clear as this one and the child has an opportunity for a permanent placement, the timelines should be adhered to, and the child be given an opportunity for permanency planning and adoption.

[27] Having found no palpable overriding error, no error in law, no procedural unfairness, and having come to the same conclusions based on the evidence as the Motion’s Judge, the Appeal is dismissed.

Czutrin J.

Released: March 22, 2013