SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO: FS-12-18456
DATE: 20130402

RE: The Catholic Children’s Aid Society of Toronto

Respondent

• and -

N.B., A.F. and D.B.

Appellants/Respondents

BEFORE: The Honourable Mr. Justice Kevin Whitaker

COUNSEL:
Anthony Marci, for the Appellant, N.B.
Shamshad Bee, for the Respondent

HEARD: March 25th, 2013

E N D O R S E M E N T

[1] This is an appeal from the decision of Justice Carole Curtis of the Ontario Court of Justice, dated November 14, 2012, granting summary judgment to the respondent Society.

[2] The summary judgment motion was heard over two days on August 7 and 14, 2012. Reasons in 38 pages were issued on November 14, 2012.

[3] The motions judge found two children – R.B. (“R.B.”) and E.J.B. (“E.J.B.”) – to be in need of protection and that they be made Crown Wards, without access.

[4] The appellant argues the motions judge erred in relying on evidence that was hearsay, opinion and business records. The appellant suggests that these errors breach the appellant’s rights under section 7 of the Canadian Charter of Rights and Freedoms ( the “Charter”), not saved by section 1.

[5] The appellant also argues the motions judge improperly made conflicting findings of fact and erred in finding the children to be catholic without evidence.

[6] The Society takes the position there were no errors made by the motions judge and that the appeal be dismissed without costs.

[7] For the reasons following, this appeal is dismissed.

[8] R.B. was born on […], 2009. E.J.B. was born on […], 2011. The appellant mother, N.B., was born on […], 1988. R.B.’s father, A.F., was born on […], 1984. E.J.B.’s father, D.B., was born on […], 1981.

[9] The Society was the applicant in the summary judgment motion. The appellant and both fathers participated as respondents in the motion. Each respondent was represented individually by experienced family law counsel. The mother is the sole appellant in this appeal and the fathers did not participate.

[10] The issues raised by the appellant in this appeal were not identified, raised, asserted or addressed before the motions judge.

[11] Evidence was put before the court on the summary judgment motion by way of affidavits filed by each party.

[12] It is agreed as the appellant suggests, some of the affidavit evidence put before the court on the motion consisted of hearsay, opinion and business records. Most of this evidence was before the motions judge on express agreement or was unopposed.

[13] The motions judge noted in her reasons that while the appellant mother consented to a finding that the children were in need of protection, for purposes of her analysis, the motions judge assumed the motion was opposed.

[14] The Society agrees that the standard of review on this appeal is one of correctness. The Society also agrees the commencement of child protection proceedings triggers the appellant’s rights under section 7 of the Charter.

[15] The appellant takes the position that section 4 of the Child and Family Services Act (the “Act”) requires consents or agreements to be in writing. It is argued on this basis that those facts verbally agreed to in the course of the hearing but not the subject of executed consents are inadmissible.

[16] In my view, section 4 does not require confirmation of agreement or consent to be in writing even assuming that section 4 applies to facts agreed or concessions made in submissions on a summary judgment motion. On my reading, the plain language meaning of section 4 is that persons providing consent or agreement must have capacity, be reasonably informed as to the consequences of providing consent or agreement and an opportunity to obtain legal advice. There are no other limitations.

[17] In the present case, each of the respondents in the motion participated fully in the motion and were represented by counsel. There was nothing in the record drawn to my attention which would indicate that the parents failed to understand or comprehend the meaning and significance of those facts asserted by the Society on the summary judgment motion. There is no basis to infer that the parents were uninformed by their own counsel in these proceedings.

[18] In her reasons, the motions judge properly identified the issues and the applicable law. She then reviewed the relevant and probative evidence.

[19] In paragraphs 18 to 28, the motions judge accurately described the test to be used on a summary judgment motion.

[20] In paragraphs 30 to 53, the court summarized the evidence regarding the protection findings. Most of this evidence was drawn from the affidavits provided by the respondents in the motion.

[21] In paragraphs 54 to 68, the court set out the salient facts in support of the need for protection. These included in detail:

(i) the parents’ transience and instability;

(ii) the volatile and unstable relationships between the respondents;

(iii) the violence and repeated criminal convictions arising from the respondents’ relations with each other;

(iv) the drug and alcohol abuse by the respondents;

(v) the morphine treatments needed by the infant children to deal with their methadone withdrawal at birth;

(vi) the circumstances of E.J.B.’s apprehension from her mother who was at the time unconscious due to an overdose, lying on a bed next to the infant child.

[22] The substance of these material facts were unopposed.

[23] There is an urgency to protection proceedings so as to assist the Society in placing the children in an appropriate adoptive family. As a matter of policy, if the appellant were correct and the motions judge was precluded from relying on unopposed affidavit material as well as agreements and concessions made at or during the course of the summary judgment motion, this would undermine the entire purpose of permitting summary judgment as a vehicle for expeditious, reliable and proportionate adjudication.

[24] This does not mean, of course, that the motions judge may uncritically accept all facts put before her on agreement if they lack plausibility or unfairly place the responding parents at a disadvantage. The motions judge must remain vigilant and exercise a critical eye when considering the written material filed and hearing the positions taken by the parties through their counsel during the course of the motion hearing.

[25] Indeed, the motions judge should attempt during the hearing, to interact with the parties with a view to narrowing and more closely defining those areas of real dispute – for purposes of making the best and most efficient use of scarce judicial resources. To the extent that the motion judge is able to obtain verbal consent and agreement to a variety of points and positions taken by the parties, this is precisely what should be expected on the motion.

[26] I conclude the motions judge was entitled to rely on the verbal consents or agreements and on those facts asserted by the Society which were not challenged by the parents at the hearing of the motion. If there was reliance on opinion or business record evidence during the motion, there was no objection at the time by counsel. It is not a fair process that would permit a party represented by expert counsel to sit silent while evidence is led, only to raise those issues or the propriety of that evidence on appeal for the first time.

[27] This reliance was not in breach of section 4 of the Act, or the principles of fairness inherent in section 7 of the Charter and which underlie the rules of evidence.

[28] In the event that I am incorrect on this point, I find the motions judge could have reasonably come to the same conclusions relying only on the affidavits provided by the respondent parents in the summary judgment motion - excluding the affidavit material filed by the Society and those facts agreed and consented to during the course of the motion.

[29] There is no breach of section 7 of the Charter as that argument is based on a finding that there has been a failure of fairness in the conduct of the motion - and I find no such failure.

[30] In my view, the motions judge considered at some length the competing positions of the parties. In thorough reasons, she rendered a thoughtful analysis which appropriately demonstrates her reasoning and conclusions.

[31] With respect to the issue regarding whether he children were catholic, the record indicates that the appellant and the children had a history of interaction with the Society over a number of months without any suggestion that there was an issue concerning the religion of the appellant and children. I find no error on this point.

[32] The motions judge made the appropriate and correct statutory findings.

[33] The appeal is dismissed. No costs were sought.

Whitaker J.

DATE: April 2, 2013