SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-13-18525-0000
DATE: 20130621

RE: Children's Aid Society OF TORONTO Applicant /Respondent on this Appeal

AND:

A. B.. Respondent / Appellant on this Appeal,

BEFORE: C. Horkins J.

COUNSEL:
Jason Gottlieb, for the appellant

Michelle Cheung, for the respondent

HEARD: June 17 2013

ENDORSEMENT

On appeal from the decision of The Honourable Justice S. Sherr of Ontario Court of Justice dated January 28, 2013.

[1] This is an appeal concerning the child A.S. On a summary judgment motion, the Honourable Justice S. Sherr of Ontario Court of Justice found that A.S. is a child in need of protection. He then directed that A.S. be placed in the care and custody of the Children’s Aid Society of Toronto (CAS) with no access, for the purpose of adoption.

[2] The respondent/appellant A.B. is the mother of A.S. She appeals the judgment of Justice S. Sherr dated January 28, 2013. The father has not appealed.

[3] The grounds of appeal are refined in A.B.’s factum as follows:

(1) Did the learned judge err in finding that there was no genuine issue for trial?

(2) Did the learned judge misapprehend the evidence in finding that the child was in need of protection pursuant to s. 37(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”)?

(3) If the crown wardship order stands did the learned judge err in his application of s. 59 (2.1)(a) when he found that the child’s relationship with A.B. was not beneficial and meaningful.

[4] The standard of appellate review of a summary judgment order is set out in SN-D v. Children's Aid Society of Ottawa, 2012 ONSC 1888 (Div. Ct.), at par. 14:

In Catholic Children's Aid Society of Toronto v. Y.K., [2007] O.J. No. 3080 (S.C.), aff'd 2008 ONCA 27, [2008] O.J. No. 137, the Superior Court of Justice addressed the standard of review on an appeal of a summary judgment made under the Family Law Rules, O. Reg. 114/99, s. 16. In summary:

The standard of review on an appeal of a summary judgment order is correctness, as most issues arising out of a summary judgment hearing are errors in law. Where an error in fact is alleged, the standard of review is less deferential than palpable and overriding error but more deferential than correctness as the judge's decision is entitled to due respect.

[5] In SN-D v. Children's Aid Society of Ottawa, the Divisional Court added that in cases involving child custody, considerable deference must be given to the decision of the trial judge. At para. 15, the court stated:

In Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at para. 12, Bastarache J. stated that the standard of review articulated by the Court in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at paras. 10-12 in regard to support issues, is equally applicable in the context of child custody. That standard is as follows:

When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges ... Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate Courts when such decisions are reviewed.

Our Court has often emphasized the rule that appeal Courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.

... Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balance the factors differently.

[6] It is agreed that the motion judge correctly set out the applicable law: the test for summary judgment under rule 16 of the Family Law Rules, O. Reg. 114/99, s. 37(2) (b) of the CFSA that addresses when a child is in need of protection, the options available to the court under s. 57(1) CFSA, the best interests of the child under s. 37(3) of the CFSA and the test for access to crown wards under s. 59(2.1) of the CFSA.

[7] In essence, the mother argues that the motion judge misapprehended the evidence when he found the child to be in need of protection and made the child a Crown ward for the purpose of adoption with no access. Further, the mother argues that the judge erred when he found there was no genuine issue requiring a trial.

[8] The motion judge’s decision is thorough and well organized. The evidence is reviewed and considered in detail. Each finding is supported by evidence and the absence of a genuine issue requiring a trial is clearly explained. As a result, I am not persuaded that the motion judge erred as alleged.

[9] In reaching my conclusion on this appeal, it is important to note that the evidence the CAS relied on was “not really opposed by the parents” as explained in the following excerpt of the judgment:

3 The mother, in submissions on this motion, took no position on the society's request for summary judgment to find the child in need of protection. She submitted that there was a triable issue with respect to the disposition of the case and with respect to the issue of access. She asked that the summary judgment motion be dismissed on these issues. The mother also brought a cross-motion seeking an order that the child be placed in her temporary care and custody, subject to a supervision order. She made it clear to the court that she was planning for the child separately from the father.

4 The father did not file any responding material to the summary judgment motion. He chose not to make submissions at the hearing. He had filed an Answer/Plan of Care on May 3, 2011 seeking an order that the child be placed with him and the mother. The court did not treat his silence on this motion as support for the society.

5 Neither of the respondents opposed the statutory findings sought by the society and that order will be made.

[Emphasis in original.]

[10] It was also noted that the mother made a blanket denial of the CAS’s “detailed parenting concerns” [emphasis in original]. She deposed that “without going into detail to each and every allegation that they have been greatly exaggerated.” The mother offered no detail to show how any allegation was allegedly exaggerated. As a result, the detailed facts set out in the judgment “were either provided, admitted, unopposed or only baldly denied (as just described) by the parents.”

[11] The child was born on […], 2011. The mother is 32 years old and this is her first child. The mother has had a relationship with the father for seven years and continues in that relationship with him. They have maintained separate residences. At one time, they were engaged to be married. Both parents have some developmental delay and the father has been diagnosed with a bi-polar disorder. Both parents have been involved with the Meta Centre in Toronto (an organization that provides programs to assist persons with disabilities).

[12] The CAS was involved with the child from the outset. The judgment reviews in detail the extensive efforts of the CAS to assist the mother in her parenting of the child. Despite all of the assistance and supports that were put in place, it became necessary to apprehend the child on March 30, 2011. The child has remained in the care of the CAS since his apprehension. The judgment explains as follows:

18 The child was apprehended from the mother's care on March 30, 2011. The protection concerns were the high level of conflict between the parents, the parenting ability of the parents and the mother's high stress level and inability to cope with the child.

[13] On April 4, 2011, Justice Harvey Brownstone made an order placing the child in the temporary care and custody of the society with access to the parents three times each week for 1.5 hours each visit, supervised in the society's discretion. The parents never brought a motion to change the temporary access order.

[14] The motion judge reviewed the continued efforts of the CAS to assist the parents and the procedural steps leading up to decision under appeal:

22 In May of 2011, the parents began their participation in the society's therapeutic access program. This is an intensive parenting program where the parents receive parenting instruction and feedback while visiting with the child. This program continued until August 29, 2011 (over 80 hours), at which time it was terminated by the society, as they determined that the parents were making insufficient progress and further instruction would not make a meaningful difference in their parenting abilities.

23 On December 14, 2011, the society amended their protection application to seek a disposition of crown wardship for the child.

24 The society brought a motion for summary judgment on all issues. On May 2, 2012, Justice Geraldine Waldman granted this motion.

25 The mother appealed this order to the Superior Court of Justice. The mother did not obtain an order in the Superior Court of Justice restoring her access pending the hearing of her appeal and the parents were not seeing the child. The appeal was allowed on October 19, 2012 and the matter was returned to this court for a rehearing, including a summary judgment motion.

26 The mother had no access to the child from May 2, 2012 until October 18, 2012. The father had no access to the child until November 23, 2012.

27 On November 19, 2012, Justice Carole Curtis made a temporary order that the parents have access to the child once per week, for one hour, on separate days.

28 The mother has consistently exercised access to the child, as ordered, since October 18, 2012 and the father has also consistently attended access since November 23, 2012. All of the visits are fully supervised at the society's office.

[15] As noted, the parents did not oppose the request that the child be found in need of protection. The motion judge found the child to be in need of protection and supported this finding with a review of the extensive unopposed evidence (para. 42). At para. 43, the court stated:

This evidence informs the court that the parents had (and have) profound and fundamental parenting challenges creating multiple risks to the child. There were risks that the child would not be kept safe and secure, that his basic physical, emotional and developmental needs would not be met and that he would be exposed to excessive domestic conflict in the care of his parents.

[16] Having found the child to be in need of protection, the motion judge thoroughly considered all of the options that are available under s. 57(1) of the CFSA and concluded that the best interests of the child supported the CAS’s request to make the child a crown ward. A less intrusive option was not available. Despite the intervention of the CAS, the assistance given to the mother and her best efforts to parent the child, the mother remained unable to “adequately parent the child”.

[17] While the mother said that she had friends and family to provide her with support, the motion judge noted there was “no real detail” about the support and no direct evidence from any of these people. The mother struggled “managing the child for one hour at supervised access visits in a highly structured setting”. The foster mother and the CAS workers described the child as calm and easy to manage.

[18] The motion judge correctly concluded that there was no genuine issue requiring a trial. After a careful review of the evidence, the court concluded as follows:

90 In addressing the relevant best interest clauses in subsection 37(3) of the Act, the court finds that there is no triable issue that:

a) The society's plan will better meet the child's physical, mental and emotional needs.

b) The society's plan will better meet the child's physical, mental and emotional level of development.

c) The society's plan will better meet the child's needs for continuity and a stable place in a family through adoption.

d) The risk of placing the child with the mother remains unacceptably high.

e) The society's plan will better address the child's needs than the plans proposed by the parents.

f) This case cannot be delayed any further. The child should receive a permanent home as soon as possible.

[19] Finally, the motion judge considered the issue of access and concluded that the parents had not met the onus that rests on them. The court stated as follows:

98 There is no triable issue as to whether either parent has met their onus with respect to either prong of the two-part test in subsection 59(2.1) of the Act. They have not. I have no doubt that the visits with the child are beneficial and meaningful for the parents. They dearly love him. However, while the visits are generally enjoyable for the child, his relationship with his parents does not come close to rising to the level of being beneficial and meaningful for him as defined in the case law. The parents have been a very limited part of the child's life since May 2, 2012. They did not see him for over five months and now see him for only one hour each week. It is far too little time to establish a beneficial and meaningful relationship with him at his age and stage of development. It is understandable that the child exhibits some distress after the visits. This is not the parents' fault.

[20] On this appeal the court was provided with fresh evidence. Pursuant to s. 69(6) of the CFSA, an appellate court may receive further evidence relating to events after the appealed decision.

[21] Section 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that an appellate court may receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as the court directs.

[22] The test for the admission of fresh evidence on appeal, in child protection cases is set out in Catholic Children's Aid Society of Metropolitan Toronto v. C.M., 1994 83 (SCC), [1994] S.C.J. No. 37 (S.C.C.) at para. 23. It requires a consideration of four factors:

a) Could the evidence have been adduced before?

b) Is the evidence highly relevant?

c) Is the evidence potentially decisive to a best interest determination?

d) Is the evidence credible?

[23] It is agreed that the fresh evidence on this appeal satisfies these factors. However, this evidence does not justify this court interfering in any way with the decision of the motion judge. My reasons follow.

[24] The new evidence consists of an affidavit from the mother dated May 1, 2013, and an affidavit from H.S. dated June 17, 2013. H.S. is the mother’s friend. The CAS filed an affidavit dated May 28, 2013 from Claudia Spirito, a child protection worker assigned to the mother and child.

[25] The mother’s affidavit explains that since the release of the summary judgment decision, there have been new developments in her life. She is working part-time at the Meta Center and earning about $400 a month. She receives counselling from this center weekly and is now living full time with H.S. in a one bedroom apartment. As well, the child is now at the top of the waiting list for a place in the neighbourhood daycare. The mother explains that she has improved her daily routine. She now maintains more regular hours and eats more regular meals.

[26] The mother’s new Plan of Care proposes that she and the child will live with H.S. who will provide ongoing assistance with the child’s care. H.S states in her affidavit that she has known the mother for four years. She and her partner of 14 years currently live with the mother in a one bedroom apartment. They are looking for a large home that can accommodate all of them. H.S. receives income support from ODSP as a result of injuries suffered in a car accident. She says that the injuries have recently limited her mobility but will not interfere with her role as a support to the mother.

[27] Upon receipt of the mother’s affidavit, Ms. Spirito spoke with H.S. This conversation revealed that H.S. and her partner have criminal records. H.S. referred to “charges of harassment and assault”. Her actual record was not revealed. She did not know the details of her partner’s criminal record. She proposes that the single bedroom be given to the mother and child. H.S. and her partner would have the living room area.

[28] On May 13. 2013, Ms. Spirito received a call from the mother who reported that she had been given 30 days to move out of H.S.’s apartment and that H.S. had decided she was no longer going to help the mother care for the child.

[29] While I commend the mother for the steps that she is taking to introduce some stability into her life, this new evidence does not resolve the safety concerns that the motion judge sets out in detail. Even if H.S. is still prepared to assist, the safety concerns of this new Plan of Care are significant given that H.S. and her partner have criminal records. Further, few details about the proposed Plan of Care are revealed and it is not known where they might live to accommodate the mother and child.

conclusion

[30] In summary, the motion judge granted the CAS summary judgment after a thorough and careful review of the evidence and law. It was abundantly clear on the record before him that there was no genuine issue requiring a trial. No error was made.

[31] The mother’s appeal is dismissed.

C. Horkins J.

Date: June 21, 2013