SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-12-18071

DATE: 20130121

IN THE MATTER OF the Child and Family Services Act, R.S.O. 1990, c.11 as amended

AND IN THE MATTER OF an Appeal from the Ontario Court of Justice (Family Division)

AND IN THE MATTER related to M.W. (born […], 2009)

RE: CHILDREN’S AID SOCIETY OF TORONTO
Applicant (in the Ontario Court of Justice)
Respondent

- and -

S.W.
Respondent (in the Ontario Court of Justice)
Applicant

BEFORE: KRUZICK J.

COUNSEL:
D. Apostolides Y. Fiamengo
for the Applicant for the Respondent

HEARD: NOVEMBER 26, 2012

ENDORSEMENT

NATURE OF THE APPEAL

[1] This is an appeal from the order of Justice Curtis made December 14, 2011. The order noted the Appellant in default and ordered the child in issue, M.W., ward of the Children’s Aid Society of Toronto (CAST) with no access.

background

[2] In this case, I would allow the appeal. As such I propose to briefly summarize the background and facts as put before me.

[3] The child M.W. was born on […], 2009 and is the biological child of the appellant. The biological father of M.W. has not been involved in these proceedings.

[4] The appellant has two other children who are in the care of their father.

[5] The child M.W. was taken into care on August 13, 2010. At the first appearance the child M.W. (together with her sister) was placed in the temporary care of her maternal grandmother subject to supervision. That placement broke down and on August 31, 2010, the two children were placed in the temporary care of the Society.

[6] On a motion for summary judgment brought by the Society on December 14, 2010, the motion was adjourned to investigate the mother’s plan for M.W. The other child, M.W.’s sister, was placed in the care of her biological father. On the summary motion judgment on January 5, 2011, the child M.W. was made a Society ward for 6 months.

[7] A status review was then commenced in August 2011, with the first court date set for October 5, 2011. The appellant mother did not file an Answer. The Society then sought Crown wardship. On October 5, 2011, the appellant was represented by counsel. At that appearance her counsel removed himself and a return date of December 14, 2011, was set. Filing deadlines were ordered: Society by November 14, 2011 and appellant by December 5, 2011. The Society met its filing deadlines. The appellant did not in order to retain counsel and have counsel’s assistance with her Answer and Parenting Plan. For the hearing the appellant prepared her own materials which were filed late. On the December 14, 2011 return date the appellant appeared in person without counsel and sought an adjournment. The appellant’s motion to adjourn and request for an extension of time to file an answer was dismissed.

[8] On December 14, 2011, the Society moved for summary judgment to make the child M.W. a Crown ward.

[9] The child was made a Crown ward by the trial judge. That disposition is being appealed.

position of the appellant

[10] On appeal the appellant argues that the trial judge erred in law in the following ways:

(a) proceeding without the benefit of input from the appellant;

(b) proceeding by way of summary judgment when there was a genuine issue for trial;

(c) failing to consider the bond between the child and the appellant and the child and her siblings;

(d) failing to take into account the appellant’s circumstances and inability to respond to the Society’s motion; and

(e) denying procedural fairness.

the position of the respondent

[11] It is the position of the respondent that the appeal should be dismissed for the following reasons:

(a) the appellant was aware of the Society’s intention to seek an order for Crown wardship;

(b) the appellant failed to serve an Answer/Plan for Care in response to the pleadings filed by the Society;

(c) the appellant failed to comply with the timelines set out for the Society default order which resulted in her being found to be in default on December 14, 2011;

(d) based on the appellant’s circumstances and history the order made was appropriate; and

(e) in making the order under appeal the trial judge applied the law to the evidence and considered procedural fairness which resulted in a reasonable decision.

analysis

Standard of Review

[12] The order under appeal in this case is the order making the child M.W. a Crown ward. At this stage, this court should only intervene if there is a material error in the decision.

[13] In C. (G.C.) v. New Brunswick (Minister of Health and Community Services), 1988 34 (SCC), [1988] 1 S.C.R. 1073, at para. 5, the Supreme Court of Canada said the following about welfare proceedings:

[T]rial judges’ decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment.

Review of the Decision

[14] The appellant argues that the child M.W. was made a Crown ward by way of a summary proceeding without adequately hearing the appellant, the biological mother of the child.

[15] In reading the transcript of the hearing of December 14, 2011, it is clear the appellant appeared in person, was heard, and sought an adjournment to be better represented and better prepared. She had been represented by counsel until October 5, 2011, when her counsel of record removed himself as her lawyer. The appellant’s evidence is that she immediately applied to Legal Aid when her lawyer ceased to act for her. On the date of the hearing the appellant was awaiting response from Legal Aid. The appellant prepared a 14B motion on the return date seeking the adjournment to enable her to respond to the summary judgment motion. She swore an affidavit dated December 13, 2011, together with a plan of care attached to it. She was clearly late in filing but expressed that her documentation as filed was not adequate because she prepared it herself. She also conveyed to the court that she was dealing with her application to be represented by counsel.

[16] On that motion for adjournment the exchange between the court and the appellant was as follows:

THE COURT: So, is there anything else you want to say about the adjournment?

MS. WHITE: That I do desperately need it, because I need a lawyer. I don’t know, I mean I tried putting papers together but they are not proper.

THE COURT: And Mr. Brown was your lawyer until October 5^th?

MS. WHITE: October 5^th.

THE COURT: Okay.

MS. WHITE: The same day I left here I called Legal Aid and I got on top of it as much as possible.

THE COURT: Okay, I have read the material. Do you want to say anything, ma’am?

MS. WHITE: What does that mean, what you just read? I don’t know.

THE COURT: Okay. What it means is that you didn’t file any papers in the main court case and so Children’s Aid can ask for final orders today without any input from you, without your papers and without any information from you. Now, because you are here, I am asking you if you want to say anything, they are asking for Crown wardship, no access for the purposes of adoption.

MS. WHITE: I don’t want that.

THE COURT: I know you don’t want that.

[17] The trial judge then allowed the appellant to express her position orally. The trial judge denied the request for the adjournment and proceeded to deal with the summary judgment motion which resulted in the order under appeal.

Legislative Provisions

[18] On this appeal the Society relies on Rule 10(5) of the Family Law Rules and argues that where the mother did not serve and file an Answer she was not entitled to participate in the proceeding. In this case the appellant did not file an Answer within the time prescribed by an earlier order. However, she was permitted by the court to participate in the proceeding because her former counsel asked to be removed on October 5, 2011, and she found herself without a lawyer on December 14, 2011, the day of the hearing. On the eve of the hearing she cobbled together an affidavit to which she appended her supporting exhibits. She expressed to the court that she tried to put her documents in order but was of the view they were “not proper". She also addressed her difficulty in being in court without counsel and takes the position she was not heard fairly.

[19] The respondent Society also argued that the court did not simply proceed by way of summary judgment but considered the request for adjournment. The court then noted the appellant in default and made a final order on the evidence before the court, which included the appellant’s oral submissions.

[20] Given the circumstances of the appellant as put before the court, I am of the view the adjournment as sought should have been granted allowing the appellant some further time to be represented and an extension of time to file her Answer and Parenting Plan. The matter should then have been directed to a trial.

[21] Counsel for CAST argues that the appellant was treated fairly. I agree with the Society counsel that procedural fairness was addressed by the trial judge. The trial judge stated:

The mother was served on 12 August 2011 and has not served and filed an answer. Mother has had a long period of time to deal with this. One year from the protection finding and four months from service of the amended status review, including two months during which she had a lawyer. Procedural fairness is very important but must be balanced against the child’s right to certainty and finality.

[22] While I agree with the submission that procedural fairness was considered, I do not agree with the result. The appellant here missed the filing deadline of December 5, 2011. She explained she was without counsel for the period following the setting of the deadline and was dealing with Legal Aid.

[23] I bear in mind the provisions of the Child and Family Services Act (CFSA). The legislative intention as set out in s. 1 is to promote the “best interests, protection and well being of children”. The Act also contemplates the least disruptive course of action.

[24] The evidence was that the mother had ongoing contact with the child. That contact was not without problems which the mother endeavoured to explain. The resulting order under appeal here severed the parent child relationship. While that may in the end be the reality and eventual outcome, as stated by our court in Children’s Aid Society of Algoma v. L.P., [2002] O.J. No. 2895 (S.C.), procedural fairness must not be sacrificed in the name of expediency.

[25] In this case, the appellant was in the process of retaining counsel and should have been allowed an extension to file her Answer.

Credibility Issue

[26] At the hearing issues of credibility were raised concerning the appellant’s access, parenting ability and the appellant’s problems with legal representation and her resulting difficulty in compliance with the timelines prescribed by the legislation and the earlier court order.

[27] As a general rule, where issues of credibility are raised, a trial is required and judgment should not be granted summarily. In her affidavit the appellant mother clearly opposed the Crown wardship and proposed a plan of care. There was conflicting evidence as filed by CAST. In my assessment of the record credibility on the two positions put forward was not adequately reviewed. Once again I bear in mind the CFSA.

[28] The relevant provisions of the Child and Family Services Act (CFSA), are ss. 1(1), (2), 57(1)3 and 70. These provisions are set out below:

1(1) – The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2) – The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

57(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, or an order under s.57.1, in the child’s best interests:

[1. and 2. are supervision orders and society wardship respectively.]

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the Society.

[29] Section 70 imposes a 24 month maximum on the duration of Society wardship orders. For a child under the age of 6 years the period is reduced to 12 months. That is the case here. While the trial judge was mindful of these provisions, a court can extend the maximum provisions if that would be in the best interests of the child:

70. (1) – Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding, (a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

[30] An application for protection brought pursuant to s. 40 of the CFSA is to determine whether a child is in need of protection pursuant to the provisions of s. 37(2). If a child is found to be in need of protection and the court finds that a court order is necessary to protect the child in the future, s. 57(1) of the CFSA set out the types of orders that a court may make. Before making a society or Crown wardship order, the court must consider the possibility of placing the child with a relative, friend or neighbour, or other member of the child’s community or extended family, subject to society supervision for a specified period between three to twelve months: s. 57(4).

[31] The court is therefore precluded from making an order for society wardship if the child has been in care for a period exceeding the time limits set out in s. 70. While pursuant to s. 57(4) a six month extension can be made, the options to the court under s. 57(1) are limited to making an order of Crown wardship, with or without access, or returning the child to a parent or another person with or without an order of society supervision. As set out above, the appellant here has had ongoing contact with the child.

[32] The question raised on this appeal is the appellant’s parenting ability. The trial judge considered the circumstances and the history of this matter. There is a conflict between the evidence of the mother and the Society regarding her mental health, parenting ability and with respect to the missed scheduled access with the child.

[33] That conflict in the evidence raises a triable issue and in granting summary judgment the appellant was, I find, denied access to trial. In Children’s Aid Society of Toronto v. R.G., 2009 ONCJ 82, [2009] O.J. No. 1151, Zuker J. held as follows at paras. 50-52:

In my view, there are a considerable number of matters of fact that needed to be resolved by trial in this dispute. It is an error to make a finding on conflicts in the evidence.

This is not a situation where there is “no genuine issue” or “no real chance of success” or a “non-existence of material issues” to justify summary judgment.

One principle is that, where there is an issue of credibility involved, the case should not be decided on summary judgment but rather should go to trial because the parties should be cross-examined before the trial judge. See MacNeil Estate v. Department of Indian and Northern Affairs of Canada, 2004 FCA 50, [2004] 3 F.C.R. 3, 316 N.R. 349, [2004] F.C.J. No. 201, 2004 CarswellNat 316 (Fed. App. Div.), at paragraph 32. In a ruling on a motion for summary judgment, the court is not to assess credibility, weigh evidence, or find the facts. The court’s role on such a motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. Judges hearing motions for summary judgment can only make findings of fact or law where the relevant evidence is available on the record, and does not involve a serious question of fact or law that turns on the drawing of inferences. See, for example, Apotex Inc. v. Merck and Co., 2002 FCA 210, 1 F.C. 242, 291 N.R. 96, 214 D.L.R. (4th) 429, 19 C.P.R. (4th) 163, [2002] F.C.J. No. 811, 2002 CarswellNat 1188 (Fed. App. Div.).

[34] On this appeal the appellant raised issues of credibility which she said were in her material and in her submission when the order under appeal was made. The trial judge was of the view that summary judgment should be granted. In my view, even if there was jurisdiction to grant summary judgment, the process in the case before me was flawed.

[35] The purpose of the CFSA as set out in s. 1 is to promote the best interest, protection, and well-being of children. Wherever possible, the additional purpose requires a balancing of the best interests of the child with the value of maintaining the family unit.

[36] In this appeal I am also mindful of the Family Law Rules, specifically Rule 2 which provides:

2. (2) PRIMARY OBJECTIVE – The primary objective of these rules is to enable the court to deal with cases justly.

(3) DEALING WITH CASES JUSTLY – Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) DUTY TO PROMOTE PRIMARY OBJECTIVE – The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

conclusion

[37] After careful consideration of the facts as put before me and the law I am of the view that a new trial should be ordered.

[38] In making this decision I bear in mind the overwhelming caseload of our Children’s Aid Societies and the enormous pressure upon them. I am also mindful of the enormous caseload that the trial courts of this province bear in the area of child protection and the need to deal with these cases effectively.

[39] In Children’s Aid Society of Halton Region v. K.L.A., 2006 33538 (ON CA), [2006] O.J. No. 3958, at para. 25, our Court of Appeal adopts the comments of Himel J. in F.B. v. S.G., 2001 28231 (ON SC), [2001] O.J. No. 1586 (S.C.) as follows:

As Himel J. wrote at para. 23, “Considering the jurisprudence both before and since the enactment of Rule 16, it is clear that it remains appropriate that summary judgment jurisdiction be exercised cautiously since that is consistent with the principles of justice and the best interests of children.” Further, Himel J. wrote at para. 40: “Effective parental participation at the child protection hearing is essential to determine the best interests of the child in circumstances where the parent seeks to maintain custody of the child.”

[40] I am of the view that the appellant here raised triable issues which were not sufficiently explored. The mother, I find, was eliminated from participating in the trial so that, to my mind, the record remains incomplete.

disposition

[41] The appeal is allowed. Crown wardship without access is a serious disposition with permanent consequences for the parent and child. While counsel for the appellant asks me to order her plan of care for the child, in my view, that would not be an appropriate disposition. The appellant also seeks that her access to the child be resumed. I am of the view that the matter should proceed to trial. Any application for temporary access should be made to the Ontario Court of Justice.

KRUZICK J.

RELEASED: January 21, 2013