COURT FILE NO.: C1691/01-12
DATE: January 9, 2013
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant
AND:
K.B.P., A.T.G. and J.K., respondents
BEFORE: MITROW J.
COUNSEL: Timothy G. Price for the Society
Toenie Hersch for K.B.P.
Peter E. Peterson for A.T.G.
J.K. not appearing
HEARD: October 5, 2012
ENDORSEMENT
INTRODUCTION
[1] The Children’s Aid Society of London and Middlesex (“the Society”) brings this motion for summary judgment pursuant to R. 16 of the Family Law Rules, O. Reg. 114/99 seeking an order of Crown wardship for the child, K.E.P., born […], 2003 (“K.E.P.”), with the order being silent as to access.
[2] The respondents, K.B.P. (“Ms. K.B.P.”) and A.T.G. (“Mr. A.T.G.”), are K.E.P.’s mother and father. The respondent, J.K., at one time had been in a parenting role for K.E.P., but he did not defend the Society application.
[3] The issue on the summary judgment motion is narrowed substantially because Ms. K.B.P. and Mr. A.T.G. both concede that an order for Crown wardship should be made. However, Mr. A.T.G. has claimed an order for access to K.E.P., and he submits that the evidence on the motion for summary judgment raises a triable issue as to his entitlement to access. Mr. A.T.G. submits there should be a trial on that issue. The Society and Ms. K.B.P. both submit that there is no triable issue regarding Mr. A.T.G.’s access claim, and that the Crown wardship order should not include access.
[4] For reasons that follow, I find there is no triable issue and I would allow the relief sought by the Society (and also by Ms. K.B.P., who concurs with the relief sought by the Society).
BACKGROUND
[5] Although the Society filed extensive affidavit material, it is necessary to focus primarily on the access issue. A substantial portion of the Society material dealt with the issue of Crown wardship that, as noted, has been conceded by both Ms. K.B.P. and Mr. A.T.G..
[6] There are few, if any, facts in dispute, and certainly no material facts in dispute on the issue before the court.
[7] Both A.T.G. and Ms. K.B.P. agree that they had a brief common-law relationship ending in November 2003. Mr. A.T.G. does not dispute Ms. K.B.P.’s evidence that on the day of separation Ms. K.B.P. called the police, that Mr. A.T.G. was charged with a number of criminal offences regarding his conduct towards her and, although Ms. K.B.P. was uncertain on what charges Mr. A.T.G. was guilty, it was her evidence that Mr. A.T.G. spent time in jail.
[8] The undisputed Society evidence is that historically Ms. K.B.P. struggled with mental health and other issues and that K.E.P. was in and out of care while Ms. K.B.P. sought treatment, at times being hospitalized for her treatment.
[9] K.E.P. was apprehended on September 3, 2010. The Society issued the current protection application for Crown wardship on September 7, 2010. K.E.P. has remained in continuous Society care since apprehension. A temporary care and custody order placing K.E.P. in Society care has remained in place since September 8, 2010. The Society subsequently amended its Crown wardship application to delete access.
[10] The parents, in their respective affidavits, present no plan of care for K.E.P.. Ms. K.B.P. deposes it is in K.E.P.’s best interests to be made a Crown ward. Mr. A.T.G. concedes he is presenting no plan to care for K.E.P. and he states he agrees that a Crown wardship order be made.
[11] Mr. A.T.G. deposes that on separation he did continue to exercise access to K.E.P. – originally on a supervised basis, and then unsupervised. He does not provide any details as to the frequency of these visits, except to say they continued “up to in or about July 1, 2009.” Ms. K.B.P. deposes that this access was sporadic and inconsistent.
[12] On his own evidence, Mr. A.T.G. deposes that he next had access to K.E.P. on three separate occasions, all of which occurred after the protection proceeding was commenced. They were all supervised visits – on November 2, 2010, November 26, 2010 and December 22, 2010.
[13] There is no dispute, and in fact Mr. A.T.G. admits, that the last time he saw K.E.P. was on December 22, 2010.
[14] The excuse offered by Mr. A.T.G. as to why he did not see K.E.P. after December 22, 2010 is because he was subsequently involved in an “incident,” as he describes it (no other detail), that led to criminal charges being laid against him, resulting in his incarceration and initial denial of bail. He was eventually released on bail (he does not say when). He does admit that in November 2011 he was again arrested, describing it as being “merely because of a surety pull.” Again, Mr. A.T.G. is quite sparse in detail as to how long he remained in jail, but he does depose that all his criminal problems ended August 22, 2012, at which time he received a suspended sentence and two years probation in the Ontario Superior Court of Justice in Sarnia. The probation order shows that the conviction was for assault with a weapon, and the various terms of probation included attending at counselling and residential treatment at Turning Point as may be recommended by Mr. A.T.G.’s probation officer.
[15] Mr. A.T.G. deposes he attended for residential treatment (starting in November 2011) at Turning Point, a home that provides services to persons with chemical dependencies, including alcohol and other drugs. Mr. A.T.G. further deposes he has been “clean and sober for the past 12 months” and that he is in the discharge planning phase of his stay at Turning Point.
[16] The gist of Mr. A.T.G.’s affidavit is that he has now “turned the corner,” as he puts it. He would “like the chance to be considered” in his daughter’s life.
[17] Should K.E.P. be made a Crown ward, it is the Society’s plan that K.E.P. will remain in the present home, with the foster family planning to adopt K.E.P.. The foster family has expressed an openness to continued contact between Ms. K.B.P. and K.E.P. after adoption. Ms. K.B.P. helped to choose the family who is planning to adopt K.E.P. and it is the uncontradicted Society evidence that part of Ms. K.B.P.’s reason for consenting to Crown wardship is because of the proposed adoptive family’s expressed openness to continue contact between Ms. K.B.P. and K.E.P. after adoption.
[18] Ms. K.B.P. deposes that she has continued to have “regular and consistent” access to K.E.P. throughout the time K.E.P. has been in care. This evidence is not challenged.
[19] In his affidavit, Mr. A.T.G. believes he too should have “contact” or “access” with K.E.P..
[20] In describing his current relationship with K.E.P., Mr. A.T.G. had this to say: “She is aware who I am, and I believe it would be in her best interests to have visits with me.”
DISCUSSION
A. The Test on the Motion for Summary Judgment
[21] I accept the reasoning in Children’s Aid Society of Toronto v. T.H.[^1] and Children’s Aid Society of the County of Simcoe v. O.P.[^2], which said cases can be summarized as follows:
a) For family law summary judgment motions, R. 16 of the Family Law Rules codifies the procedure and in order to grant summary judgment the court must find “there is no genuine issue requiring a trial of a claim or defence” (subrule 16(6));
b) The amendments contained in r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, allowing the court on a motion for summary judgment to weigh the evidence, evaluate credibility and draw any reasonable inferences from the evidence, are not applicable to, and ought not to be considered on, summary judgment motions to which R. 16 applies[^3];
c) Accordingly, the “full appreciation test” formulated by the Court of Appeal for Ontario in Combined Air Mechanical Services Inc. v. Flesch[^4], in applying the amendments to R. 20 of the Rules of Civil Procedure is not the test to apply on summary judgment motions in family law matters governed by the Family Law Rules.
[22] The relevant provisions of R. 16 in relation to the present case are as follows:
(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.
(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.
(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.
(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.
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[23] The case at bar is governed by the jurisprudence as to the meaning of “genuine issue for trial,” and the court’s duty on a motion for summary judgment, as developed prior to the amendments to R. 20. This jurisprudence was often applied to motions for summary judgment pursuant to R. 16 of the Family Law Rules because of the similar “genuine issue for trial” test contained in both rules. In Combined Air Mechanical Services Inc., (supra), the Court of Appeal for Ontario reviewed the law (see paras. 11-20) prior to the R. 20 amendments and the relevant principles can be summarized as including the following[^5]:
a) “Genuine” issue for trial means not spurious. The requirements of the rule are met if there is no issue of fact that requires a trial for its resolution;
b) The moving party bears the burden to satisfy the court that the requirements of the rule have been met;
c) The court’s function is not to resolve an issue of fact but to determine whether a genuine issue of fact exists;
d) The summary judgment court must take a “hard look at the merits.” Parties to the motion must “put their best foot forward” in their evidence on the motion, rather than waiting for trial (it should be noted this principle has been largely codified in subrule 16(4.1) in relation to a responding party);
e) The court is not to assess credibility, weigh the evidence or find the facts – the court’s narrow role is to assess whether a genuine issue exists as to material facts requiring a trial;
f) The genuine issue must relate to material facts.
[24] Within the context of a child protection proceeding, a motion for summary judgment engages additional considerations that must be taken into account. I adopt the discussion by D.L. Chappel J. in Catholic Children’s Aid Society of Hamilton v. C.F.[^6] at para. 61 as follows:
The courts have highlighted the importance of additional considerations in summary judgment motions brought in the context of child protection cases. These include "the nature of the evidence on the motion, any mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved, if any, and particularly how material are the facts in issue to the case." ... In addition, the analysis must also be undertaken under the umbrella of the paramount purpose of the CFSA, which is "to promote the best interests, protection and well-being of children." (CFSA, section 1; Catholic Children's Aid Society of Hamilton v. L.H., [2008] O.J. No. 4609 (S.C.J.), Children's Aid Society of the Regional Municipality of Waterloo v. R.S., 2000 22902 (ON CJ), [2000] O.J. No. 4880 (O.C.J.)).
B. Relevant Statutory Provisions as to Access
[25] The general provision for access is set out in s. 58(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] as follows:
58(1) The court may, in the child’s best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
[26] Section 59 contains the following provisions in relation to access to a Crown ward that are relevant to the case at bar:
(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.
(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child’s future opportunities for adoption.
C. Analysis – Issue of Crown Wardship
[27] I am satisfied on the clear and uncontradicted evidence that K.E.P. is a child in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act as pleaded in the amended application and, further, that the least intrusive order pursuant to s. 57(1) of the Child and Family Services Act consistent with K.E.P.’s best interests is Crown wardship. The evidence establishes that both Ms. K.B.P. and Mr. A.T.G. admit they cannot parent K.E.P.. No other person has presented a plan of care. K.E.P. has been in a stable environment in her foster home. K.E.P.’s best interests, as defined in s. 37(3) of the Child and Family Services Act, are best served by the Society’s plan of Crown wardship with K.E.P. to be adopted by her current foster parents. Also relevant is that neither Ms. K.B.P. nor Mr. A.T.G. oppose the order of Crown wardship. Pursuant to s. 47(2) of the Child and Family Services Act, I make the following statutory findings:
a) The child’s name and age is K.E.P., born […], 2003;
b) No evidence has been given as to the child’s religious faith;
c) The child is not an Indian or native person;
d) The child was apprehended at the Byron Day Camp in London, Ontario on September 3, 2010 and brought into Society care.
D. Analysis – Is the issue of access a triable issue?
[28] The facts are not in dispute that Mr. A.T.G. has not seen K.E.P. since December 22, 2010. He admits to a life of criminal activity and substance abuse to explain his absence from his daughter’s life. Mr. A.T.G. submits that he has turned his life around and that the matter of his entitlement to access is a triable issue.
[29] The effect of s. 59(2.1) of the Child and Family Services Act is to create a statutory presumption against access where a child is made a Crown ward. The court is directed not to make an order for access with respect to a Crown ward unless the court is satisfied that the conditions set out in subsections (a) and (b) of s. 59(2.1) are met.
[30] In Children’s Aid Society of Niagara Region v. C.(J.)[^7], the Divisional Court considered the effect of a statutory presumption against access to Crown wards contained in what was then s. 59(2) of the Child and Family Services Act, which is the predecessor to the current s. 59(2.1). Although there are some minor or subtle differences in wording between those two sections, the effect of both sections is the same and the analysis by the Divisional Court applies equally to the current s. 59(2.1).
[31] It was the conclusion of the Divisional Court that the onus is on a person seeking access to a Crown ward to prove on a balance of probabilities that the conditions set out in the previous s. 59(2)(a) and (b) [now s. 59(2.1)(a) and (b)] have been met.
[32] The first condition, contained in subsection (a), is that “the relationship between the person and the child is beneficial and meaningful to the child.” This condition has identical wording in both the current provision (s. 59(2.1)(a)) and the previous provision (s. 59(2)(a)).
[33] The Divisional Court stated that “beneficial” has been held to mean “advantageous,” and that “meaningful” has been held to mean “significant.” In applying these definitions to the facts before it, the Divisional Court stated as follows in para. 29:
29 ... The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother's relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was "beneficial" within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children's emotional health, were identified.
[34] Mr. A.T.G. cannot say anything more about his current relationship with K.E.P. other than his evidence that K.E.P. “is aware who I am.” The extent of Mr. A.T.G.’s relationship with K.E.P. falls far below the threshold of being “beneficial and meaningful” to K.E.P. within the meaning of s. 59(2.1)(a). Mr. A.T.G.’s desire, now, to be a parent in K.E.P. life and his “belief” it would be in K.E.P.’s best interests to have visits with him, are unpersuasive and insufficient factors. More is required from Mr. A.T.G. to meet the criteria in s. 59(2.1)(a) than pointing to his access visits initially after separation, his three supervised visits in November and December 2010 and his alleged turnaround from criminal activity and substance abuse.
[35] Mr. A.T.G. regrettably has made choices that excluded his participation in his daughter’s life. While Mr. A.T.G. may have achieved some recent success in his personal life goals, this achievement does not elevate his current relationship with K.E.P. to one that is “beneficial and meaningful” for K.E.P. within the meaning of s. 59(2.1)(a).
[36] The above analysis in relation to s. 59(2.1)(a) has been made in the context of a motion for summary judgment. I am satisfied the Society has demonstrated that there is no genuine issue requiring a trial as to whether Mr. A.T.G. can demonstrate that his relationship with the child is “beneficial and meaningful to the child.”
[37] Mr. A.T.G. is required “to put his best foot forward” – that is the effect of subrule 16(4.1). His own evidence falls far short of raising a genuine issue for trial.
[38] Nothing is to be gained by a trial on this issue. Mr. A.T.G. has placed all his evidence before the court on this summary judgment motion. Accepting the facts, as Mr. A.T.G. states them, leads to the inescapable finding that there is no genuine issue for trial.
[39] In applying the narrow role of a motion’s judge on a motion for summary judgment (as discussed earlier), the meaning of what constitutes a genuine issue for trial has been summarized as follows in Children’s Aid Society of Haldimand and Norfolk v. S.L.T.[^8], at para. 62:
62 "No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed." (Children's Aid Society of Oxford (County) v. J.(J.), 2003 2388 (ON SC), [2003] O.J. No. 2208 (Ont. S.C.J.)); when the "outcome is a foregone conclusion" Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) 1996 7271 (ON SC), 139 D.L.R. (4th) 534. To put it another way, no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant. (Children's Aid Society of Simcoe v. C. S. [2001] O.J. No. 4915 (Ont. S.C.J.) (page 2)).
[40] I find there is no realistic possibility of an outcome other than that claimed by the Society.
[41] In addition, I take into account that this is a protection proceeding, that permanency planning for K.E.P. needs to take place and that the time periods for final disposition pursuant to R. 33 of the Family Law Rules are already substantially exceeded. I adopt the following statement in Children’s Aid Society of Haldimand and Norfolk, supra, by A. Pazaratz J. at para. 66:
66 Summary judgment is a tool to control a child's drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child's needs. The legal process should not be used to "buy" a parent time to develop the ability to parent. (Children's Aid Society of Toronto v. H. (R.), 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.), paragraph 15). In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (Children's Aid Society of Ottawa v. C.(M.) 2003 67754 (ON SC), 2003 CarswellOnt 9373 (SCJ)).
[42] The second requirement in s. 59(2.1) is contained in subsection (b) and it requires that the person seeking access to a Crown ward must demonstrate “that the ordered access will not impair the child’s future opportunities for adoption.”
[43] The two criteria set out in s. 59(2.1) are conjunctive. Given the finding that there is no genuine issue for trial in relation to s. 59(2.1)(a), I find it is not necessary to engage in an analysis as to whether there is also no genuine issue for trial in relation to s. 59(2.1)(b).
FINAL ORDER
[44] For reasons set out above, a final order shall issue as follows:
The child, K.E.P., born […], 2003, is found to be in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act;
The child, K.E.P., born […], 2003, is made a ward of the Crown and placed in the care of the Children’s Aid Society of London and Middlesex.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: January 9, 2013
[^1]: 2012 ONSC 3916 (Ont. S.C.J.)
[^2]: 2012 ONSC 2349 (Ont. S.C.J.)
[^3]: See also to the same effect Catholic Children’s Aid Society of Hamilton v. C.F., 2011 ONSC 3335 (Ont. S.C.J.) at paras. 62-63.
[^4]: 2011 ONCA 764 (Ont. C.A.)
[^5]: See also the helpful discussion as to motions for summary judgment in child protection proceedings in Catholic Children’s Aid Society of Hamilton v. C.F., supra, at footnote 3, paras. 55 – 64.
[^6]: supra, at footnotes 3 and 5
[^7]: 2007 8919 (ON SCDC), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40 (Ont. Div. Ct.)
[^8]: 2011 ONSC 4990 (Ont. S.C.J.)