ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-0170
DATE: 20130115
BETWEEN:
D.N.
Ms J. Gamble, for the Applicant
Appellant
- and -
Bruce Grey Child and Family Services
Ms H. Trentos, for the Respondent
Ms A. Tribe, on behalf of the Child
Respondent
HEARD: January 14, 2013
Reasons for Judgment
Conlan J.
Introduction
[1] The future of a young child is at stake in this Appeal.
[2] The Appellant mother, D.N. (“Ms. D.N.”), appeals the Final Order of MacKenzie J. made on May 15, 2012. That Final Order granted the Motion for Summary Judgment brought by the Respondent on Appeal, Bruce Grey Child and Family Services (“CAS”). The child, C.N., born […], 2009 (now three years old), was made a Ward of the Crown and placed in to the care of the CAS for adoption by his foster parents.
[3] The Notice of Appeal dated June 12, 2012 raises these three grounds.
THE GROUNDS FOR THIS APPEAL ARE:
That with the greatest of respect, the Honourable Justice R.S.G. MacKenzie shifted the evidential burden onto Ms. D.N. to prove a genuine issue for trial, while the evidential burden always remains on the Society to prove the non-existence of a genuine issue for trial.
That with the greatest of respect, the Honourable Justice R.S.G. MacKenzie made his determination that there was no genuine issue for trial on the basis solely of Affidavit evidence of Society workers, including some hearsay comments in the Society’s Affidavits, which if struck at trial, could affect the disposition.
That Ms.D.N. be able to provide the court with “fresh evidence” particularly concerning her attendance at counselling programs as her previous non-attendance was a major factor relied upon by the Honourable Justice R.S.G. MacKenzie in making the determination that he did.
[4] Ms. D.N. has not filed any fresh evidence on the Appeal.
[5] The Factum filed on behalf of Ms. D.N. focuses on ground number two (the hearsay issue).
[6] The CAS opposes the Appeal, as does counsel for the child.
[7] Pursuant to my consent Order made on December 7, 2012, the CAS has filed fresh evidence on the Appeal – the Affidavits at tabs 12 through 14 of the CAS’ Appeal Record.
[8] In written Reasons released on September 18, 2012, Price J. of this Court granted a Motion brought by Ms. D.N. and stayed the Final Order of MacKenzie J. Access between Ms. D.N. and the child was restored, among other relief. The CAS appealed that decision to the Divisional Court but later withdrew the Appeal when a fairly early date was granted to hear the within matter.
[9] I thank all counsel for their assistance on this Appeal. In addition to having considered the submissions at Court on 14 January 2013, I have reviewed all of the materials filed including the transcripts, Appeal Records, Facta and Casebooks.
A Summary of the Positions of the Parties
Ms. D.N.
[10] Consistent with the Factum filed on behalf of Ms. D.N. (not present at Court when the Appeal was heard), the Appellant’s counsel confined the oral argument to the second ground only (the hearsay issue), which Ms. Gamble argued ought to be assessed on Appeal using correctness as the standard of review.
[11] Counsel for Ms. D.N. highlighted several passages from the written Reasons provided by Price J. His Honour accepted as a serious issue the question whether the evidence before MacKenzie J., including the hearsay, was adequate to sustain the Final Order made. Price J. summarized at length the hearsay evidence that was before Justice MacKenzie.
[12] Ms. Gamble acknowledged that Rule 16(5) of the Family Law Rules permits hearsay evidence on a motion for summary judgment, however, it is argued that Justice MacKenzie failed to draw any unfavourable inferences against the CAS as a result of the hearsay evidence that it put forward, including most important the police report concerning the reason for the child’s apprehension from the care and custody of Ms. D.N..
[13] Ms. Gamble submitted that, although Price J. summarized at length the evidence that was before Justice MacKenzie which spoke positively about Ms. D.N., MacKenzie J. either ignored or paid insufficient attention to that evidence. Instead, Justice MacKenzie overemphasized the negatives, such as Ms. D.N.’ alcohol problem.
[14] Counsel for Ms. D.N. stressed that the child had been living with the proposed adoptive parents for only 2.5 months at the time that the Motion was heard by MacKenzie J.
[15] Ms. Gamble argued that, although the Affidavit of Ms. D.N. that was filed in the lower Court was fairly sparse, there was ample evidence in the CAS’ own materials before Justice MacKenzie which showed that there was a genuine issue requiring a trial.
[16] Finally, Ms. Gamble stressed the high standard of proof on a motion for summary judgment and the fact that such motions ought not to be granted lightly.
The CAS
[17] Ms. Trentos argued that Justice MacKenzie committed no error in law and, specifically, that His Honour did not shift the burden of proof to Ms. D.N.. His Honour simply applied Rule 16(4.1); considered D.N.’ Affidavit evidence; recognized that there was little conflict in the evidence given the admissions made by Ms. D.N.; and concluded that there was no genuine issue which required a trial.
[18] Counsel for the CAS submitted that the lower Court committed no factual error. Justice MacKenzie considered the hearsay issues and struck certain evidence.
[19] Ms. Trentos argued that the fresh evidence filed by the CAS supports the decision made by MacKenzie J., including the guilty pleas to criminal charges entered by Ms. D.N. in October 2012.
[20] Counsel for the CAS pointed out that the child has now been in the care and custody of the CAS for 796 days.
[21] Ms. Trentos argued that Rule 20 of the Rules of Civil Procedure is inapplicable.
[22] Finally, counsel for the CAS emphasized that the standard of review on issues of law is correctness but otherwise reasonableness; that deference is owed to many of the findings made by Justice MacKenzie; and that this is not a fresh hearing.
Counsel for the Child
[23] Ms. Tribe urges the Court to ignore the Reasons of Price J. as being irrelevant at this stage. I largely agree with that submission. Although I have considered the decision of Price J., I note that the said decision is not in any way binding on me. Further, Price J. did not have the same materials available for review that I have before me, including the complete transcripts and the fresh evidence. Finally, the test before Justice Price on the stay application was different than it is on the Appeal proper.
[24] Ms. Tribe agrees with Ms. Gamble and disagrees with counsel for the CAS on the standard of review to be applied to ground number two (the hearsay issue). Ms. Tribe submits that the standard is one of correctness. I agree.
[25] Counsel for the child argues that the lower Court did not consider hearsay evidence in reaching its decision. I agree.
[26] MacKenzie J., submits Ms. Tribe, conducted a thorough review of the relevant jurisprudence; was clear on the burden of proof being on the CAS; and was clear that Ms. D.N. bore an evidentiary burden only. I agree.
[27] Ms. Tribe agrees with Ms. Trentos that Rule 20 of the Rules of Civil Procedure does not apply. Justice MacKenzie concluded properly in that regard, to the benefit of Ms. D.N.. I agree.
[28] Finally, counsel for the child submits that MacKenzie J. adequately considered all of the evidence including the positives for Ms. D.N.. I agree.
Framework
Rule 16 of the Family Law Rules
[29] For purposes of this Appeal, the relevant provisions of the Rules are 16(4), (4.1), (5) and (6). Those are set out below.
EVIDENCE REQUIRED
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).
EVIDENCE OF RESPONDING PARTY
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.
EVIDENCE NOT FROM PERSONAL KNOWLEDGE
(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16 (5).
NO ISSUE FOR TRIAL
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).
[30] In my opinion, in a case where no counsel encourages the Court to rely upon Rule 20 of the Rules of Civil Procedure, as here, and where the Court concludes that having resort to that Rule is not necessary to resolve the issues raised, as I so conclude, the Court ought not rely upon Rule 20 and the jurisprudence related thereto.
[31] I have not relied upon Rule 20. MacKenzie J. did not rely upon Rule 20. In my view, His Honour was correct in that regard. Nobody asked that His Honour consider, by analogy, Rule 20. And His Honour had no reason to conclude that Rule 16 did not adequately address the issue to be decided.
Standard of Review on Appeal
[32] The burden of proof is a question of law. On the first ground of Appeal, therefore, the standard of review is one of correctness. No deference is to be given to the lower Court.
[33] The admissibility of evidence is a question of law. On the second ground of appeal, therefore, the standard of review is correctness. No deference is to be given to the lower Court.
[34] I disagree with Ms. Trentos that the second ground of Appeal, which is the only one argued by counsel for Ms. D.N. in the Factum and in oral submissions, ought to be approached on the basis of a standard of review short of correctness.
[35] The second ground of Appeal depends on a finding by this Court that Justice MacKenzie based the decision, at least partially, on inadmissible hearsay evidence. Whether MacKenzie J. actually did rely on hearsay evidence is a question of fact for this Court, having regard to the transcripts. But, if the answer to that question is in the affirmative, whether His Honour ought to have considered hearsay evidence is a question of law, and MacKenzie J.’s decision to accept and consider the hearsay evidence is to be assessed on Appeal on a standard of correctness.
[36] Put another way, if I conclude that Justice MacKenzie did not rely on hearsay evidence in making the decision that His Honour made, then that is the end of the analysis of the second ground of Appeal. If I conclude that MacKenzie J. did in fact rely on hearsay evidence, then I must ask myself whether His Honour’s decision to rely upon hearsay evidence was correct.
Analysis and Conclusion
[37] As no fresh evidence was filed by Ms. D.N., the third ground of appeal is moot.
Did the Lower Court Err on the Burden of Proof?
[38] On the first ground of appeal (not argued but still worthy of comment), I can find nothing in the transcripts to suggest that Justice MacKenzie committed any error with regard to the burden of proof.
[39] In a child protection case, on a motion for summary judgment, the moving party bears the burden of proof. That moving party must demonstrate on a balance of probabilities that there is no genuine issue requiring a trial.
[40] There is no burden on the respondent to demonstrate that there is a genuine issue requiring a trial. The respondent is perfectly entitled to file nothing on the motion.
[41] There is, however, an evidentiary burden on a respondent who chooses to file evidence on the motion. Such a respondent may not rest on mere denials of the allegations made by the moving party. Rather, the respondent must adduce evidence of specific facts which show that there is a genuine issue for trial.
[42] Because this appears to have caused some confusion generally, an illustration will perhaps be helpful. Assume that the CAS brings a motion for summary judgment in accordance with the relief sought in its Protection Application – that the child be made a Ward of the Crown and placed into the care and custody of the CAS, without any access to the respondent mother, for the purpose of adoption. The motion materials consist of an Affidavit from a worker who states that she has been verbally abused by the respondent mother on a number of occasions throughout the six months or so that the CAS has been involved with the single parent mother and her only child. The Affidavit is silent on any details of the alleged verbal abuse and whether it took place in the company of the child.
[43] In the first scenario, the mother files no evidence. The motion is heard by the Court. If the Court accepts the evidence of the CAS worker, then the Court decides whether that evidence establishes on balance that there is no genuine issue requiring a trial. If the answer is yes, then summary judgment shall be granted. If no, then the motion is dismissed and the application proceeds in the normal course.
[44] In the second scenario, the mother files an Affidavit which says, in its entirety, “I deny everything that the CAS has said”. The motion is heard by the Court. The proper procedure would be to strike the Affidavit of the mother as being an improper pleading, or alternatively, place no weight on it as having not complied with Rule 16(4.1). If the Court accepts the evidence of the CAS worker, then the Court decides whether that evidence establishes on balance that there is no genuine issue requiring a trial. If the answer is yes, then summary judgment shall be granted. If no, then the motion is dismissed and the application proceeds in the normal course.
[45] In the third scenario, the mother files a detailed Affidavit setting out her specific recollections of the various incidents described in the CAS worker’s Affidavit. In each instance, the mother’s evidence is absent anything that could be construed as verbal abuse by her towards the worker. The motion is heard by the Court. The Court decides whether the CAS has established on balance, having regard to all of the evidence including that put forward by the respondent mother, that there is no genuine issue requiring a trial. If the answer is yes, then summary judgment shall be granted. If no, then the motion is dismissed and the application proceeds in the normal course.
[46] The lesson from the first scenario is that a respondent files nothing at his or her own peril. The only chance that s/he has to withstand the request for summary judgment is to hope that the evidence adduced by the moving party is insufficient to satisfy the Court on balance that there is no genuine issue requiring a trial.
[47] The lesson from the second scenario is that a respondent files a one-liner at his or her own peril. The only chance that s/he has to withstand the request for summary judgment is to hope that the evidence adduced by the CAS is insufficient to satisfy the Court on balance that there is no genuine issue requiring a trial. S/he is in no better position than s/he would have been had s/he filed nothing.
[48] The lesson from the third scenario is that compliance with Rule 16(4.1) provides the best chance for a respondent to defeat a motion for summary judgment.
[49] In the case at bar, what presented itself to Justice MacKenzie was closest to the third scenario. MacKenzie J. did not err on the burden of proof. His Honour repeatedly averted to the fact that the CAS had to convince the Court that there was no genuine issue requiring a trial. His Honour never stated or implied that the legal burden of proof rested with Ms. D.N.. Justice MacKenzie simply acknowledged Rule 16(4.1). His Honour never stated or implied that D.N.’ Affidavit violated that Rule. His Honour clearly considered the evidence adduced by Ms. D.N. – there are several references to that evidence and to the Affidavit throughout the Reasons.
[50] In the end, even after considering the evidence of Ms. D.N., His Honour concluded that there was no genuine issue requiring a trial.
[51] This is not a hearing de novo. It is not for me to put myself in the shoes of Justice MacKenzie and ask myself whether I would have made the same decision on the same evidence. The issue is whether there was any error committed. On the burden of proof, there was no error committed.
[52] His Honour considered and applied Rule 16 correctly. In particular, Justice MacKenzie applied the correct burden of proof. The appeal on the first ground is dismissed.
Did the Lower Court Err With Regard to the Hearsay Evidence?
[53] The transcript of the argument by counsel before Justice MacKenzie makes it clear that His Honour was alive to the frailties in the evidence put forward by the CAS. Numerous items of alleged “evidence” were struck by the Court.
[54] The preliminary question is whether the lower Court relied on hearsay evidence. I find that it did not.
[55] I have examined very carefully the transcripts. I can find nothing in the 19 pages of Reasons which suggests, explicitly or by implication, that MacKenzie J. placed any weight on any hearsay evidence.
[56] In actuality, many of the key findings of fact made by Justice MacKenzie were not contested in the evidence before His Honour. The following are just four examples for illustrative purposes.
[57] The lower Court concluded that Ms. D.N. did not always meet with CAS workers as requested to do so. In part, that was admitted by Ms. D.N. at paragraph 11 of her Affidavit that was before MacKenzie J.
[58] The lower Court concluded that Ms. D.N. was not always honest with the CAS. There is no question that Ms. D.N. has issues of trustworthiness. She swore an Affidavit denying that she committed any assault but later pleaded guilty to being a party to an assault causing bodily harm, which charge was outstanding against Ms. D.N. at the time that she swore the Affidavit.
[59] The lower Court concluded that Ms. D.N. has an alcohol problem. In part, that was admitted by Ms. D.N. at paragraphs 6 and 7 of her Affidavit that was before MacKenzie J.
[60] The lower Court concluded that Ms. D.N. had been inconsistent in exercising access with her child. That was admitted, in part, by Ms. D.N. at paragraph 8 of her Affidavit that was before MacKenzie J.
[61] I do not see anything in the Reasons of Justice MacKenzie which leads me to conclude that His Honour relied on an item of hearsay evidence which was not conceded by Ms. D.N..
[62] I do not see anything in the Reasons of Justice MacKenzie which leads me to conclude that His Honour placed any weight on an item which the Court had earlier indicated during the course of arguments by counsel was to be struck or ignored or otherwise considered inadmissible.
[63] Justice MacKenzie is presumed to know the law. When His Honour states that something is inadmissible or to be struck or to be ignored or to be used only for a limited purpose and not for its truth, then it is presumed that His Honour abided by that. That presumption could certainly be rebutted by reference to something in the transcripts which suggests, directly or indirectly, that His Honour indeed placed reliance on hearsay evidence. There is nothing of the kind.
[64] Of course, none of the above is to say that it would have been an error for Justice MacKenzie to have relied upon hearsay evidence. That question need not be addressed as I have determined that the lower Court did not in fact rely on any hearsay in making its decision.
[65] The second ground of Appeal is dismissed.
[66] In conclusion, none of the three grounds advanced in the Notice of Appeal succeeds. The Appeal is dismissed.
[67] This was not a meritless or frivolous Appeal. It was well prepared and competently argued. It was very important for Ms. D.N. as the loss of custody of and a relationship with a child is something that is of paramount concern. This is not an appropriate case for costs. I do not require submissions on that issue. No costs are ordered.
Conlan J.
Released: January 15, 2013
COURT FILE NO.: 12-0170
DATE: 20130115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.N.
Appellant
- and -
Bruce Grey Child and Family Services
Respondent
REASONS FOR JUDGMENT
Conlan J.
Released: January 15, 2013